Lalit Sharma vs Attar Singh
2019 Latest Caselaw 1115 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                   RFA No. 584/2018

%                                                   19th February, 2019

LALIT SHARMA                                               ..... Appellant
                          Through:       Mr. L.S. Solanki, Advocate.

                          versus

ATTAR SINGH                                               ..... Respondent

Through:

CORAM:

HON'BLE MR. JUSTICE VALMIKI J. MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

CM No. 29174/2018 (Extension of time to pay the balance court fees)

1. Deficiency in the court fees has been made good. CM stands

disposed of.

CM No. 29172/2018 (delay in re-filing)

2. For the reasons stated in the application, delay in re-filing is

condoned.

CM stands disposed of.

RFA No. 584/2018 & CM No. 29173/2018

3. This Regular First Appeal under Section 96 of the Code

of Civil Procedure, 1908 (CPC) is filed by the defendant in the suit

impugning the Judgment of the trial court dated 19.03.2018 by which

the trial court has decreed the suit filed by the respondent/plaintiff for

a sum of Rs. 20,00,000/- along with interest at 12% per annum on

account of two loans of Rs. 10,00,000/- each advanced by the

respondent/plaintiff to the appellant/defendant having not been repaid.

4. The facts of the case are that the respondent/plaintiff filed

the subject suit by pleading that the appellant/defendant was the friend

of the respondent's/plaintiff's son, and therefore for the first time took

a loan on 27.12.2013 for a sum of Rs. 10,00,000/- for financial

assistance required in his business. Again, in October 2014, the

respondent/ plaintiff was approached and he gave a further sum of Rs.

10,00,000/- as loan to the appellant/defendant. The

appellant/defendant executed an Agreement-cum-Receipt on

27.10.2014 when the second loan of Rs. 10,00,000/- was given. The

appellant/defendant issued two post-dated cheques of Rs. 10,00,000/-

each on 27.08.2015 and 01.09.2015 for repayment of the loan

amounts. The appellant/defendant had also executed a pronote to

make the repayment. Since the cheques were dishonoured, after

serving the Legal Notice dated 26.09.2015, the subject suit was filed.

5. The appellant/defendant despite service and appearing

through counsel in the trial court on 19.01.2017 failed to file the

written statement. Since the written statement was not filed, the

opportunity to file the written statement was closed by the Order of the

trial court dated 19.01.2017. Thereafter, the respondent/plaintiff has

proved his case by leading evidence.

6. The respondent/plaintiff has led evidence and proved the

Agreement-cum-Receipt dated 27.10.2014 as Ex.PW1/1. The certified

copies of the Cheques which were dishonoured along with the

Pronotes and Receipt were filed and proved as Ex.PW1/2 to

Ex.PW1/4. Accordingly, on the basis of these documents, the trial

court has held, and rightly so, that the respondent/plaintiff was entitled

to the suit amount along with interest.

7. The Ld. counsel for the appellant/defendant argued that

the appellant/defendant had no idea that he was appearing in the

subject suit inasmuch as there was a simultaneous case under Section

138 of the Negotiable Instruments Act, 1881, however, this argument,

in my opinion, is totally frivolous because the appellant/defendant did

not appear in person in the trial court but he appeared through an

advocate. In any case, the right of the appellant/defendant to file the

written statement was closed by a specific order showing that the

appellant/defendant has been appearing in the suit and was aware of

the nature of the same. This argument of the appellant/defendant

therefore being totally misconceived is rejected.

8. The Ld. counsel for the appellant/defendant then argued

that the appellant/defendant did not receive the affidavit by way of

evidence filed by the witnesses, but once again this argument is totally

false/wrong because the Order passed by the trial court on 24.03.2017

showed that the appellant/defendant had to take the affidavit by way

of evidence of the witnesses from the court records within one week

from 24.03.2017, and if this affidavit by way of evidence was not

taken by the appellant/defendant from the court record in one week,

then the appellant/defendant is only to blame. This argument of the

appellant/defendant is therefore rejected.

9. In view of the aforesaid discussion, there is no merit in

the appeal. Dismissed. All pending applications are also disposed of.

FEBRUARY 19, 2019/ib                  VALMIKI J. MEHTA, J