Madhya Pradesh High Court
Shobhraj Godwani vs Shobha & Ors. on 26 February, 2024
Author: Anil Verma
Bench: Anil Verma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE ANIL VERMA
ON THE 26 th OF FEBRUARY, 2024
FIRST APPEAL No. 61 of 2002
BETWEEN:-
SHOBHRAJ GODWANI (DECEASED)
THROUGH LEGAL REPRESENTATIVE
1. SMT. MOHINIDEVI W/O LATE SHOBRAJ
GODWANI, AGED ABOUT 71 YEARS, OCCUPATION:
HOUSE WORK AJANTA TALKIES ROAD, RATLAM
(MADHYA PRADESH)
2. SUSHRI SHEELA D/O LATE SHOBRAJ GODWANI,
AGED ABOUT 51 YEARS, OCCUPATION: SERVICE
SADAR (MADHYA PRADESH)
3. RAJKUMAR S/O LATE SHOBRAJ GODWANI, AGED
ABOUT 43 YEARS, OCCUPATION: SERVICE SADAR
(MADHYA PRADESH)
4. RAMESH S/O LATE SHOBRAJ GODWANI, AGED
ABOUT 46 YEARS, OCCUPATION: SERVICE SADAR
(MADHYA PRADESH)
5. GOPAL S/O LATE SHOBRAJ GODWANI, AGED
ABOUT 41 YEARS, OCCUPATION: SERVICE R/O
SADAR (MADHYA PRADESH)
.....APPELLANTS
BY SHRI (AU.NIMGAONKAR - ADVOCATE )
AND
1. SMT. SHOBHA D/O RAMCHANDRAJI SINHA @
SMT. SHOBHA W/O LATE SAMARENDRA DATT
VERMA AGE ABOUT 51, OCCUPATION -
BUSINESS R/O 12, ABHIRUCHI, 12-DX, GUMASTHA
NAGAR EXTENSION, SECTOR-C, INDORE
(MADHYA PRADESH)
2. SHRI RAMESHCHANDRA S/O RAMCHANDRAJI
SINHA, AGE 50 YEARS, OCCUPRATION-- SERVICE (
Signature Not Verified
Signed by: AMOL
NIVRUTTIRAO MAHANAG
Signing time: 28-02-2024
17:51:15
2
SAHAYAK VANIJIK KAR ADHIKARI) THROUGH
SAHAYAK AYUKT SHRI VARIHAPP S/O
RAMCHANDRAJI SINHA, ( KARYALAYA UPAYUKT
VANIJIK KAR), CHETAK CENTRE, R.N.T. MARG
INDORE. R/O 12, D-X, GUMASHTA NAGAR,
EXTENTION, SECTOR-C (MADHYA PRADESH)
.....RESPONDENTS
( NONE FOR THE RESPONDENTS)
Th is appeal coming on for hearing this day, t h e court passed the
following:
ORDER
This first appeal has been filed by the appellant/s under section 96 of
Code of Civil Procedure, 1908 ( in short "CPC") against the impugned
judgment and decree dated 13/10/2001 passed by 5th Additional District Judge,
(Fast Track), Ratlam in Civil Suit no. 14-B/2001, whereby appellants' suit for
recovery of Rs. 1,36,000/- has been dismissed.
2/ Brief facts of the case are that appellants/plaintiff filed a civil suit
before the trial Court by stating that son of the plaintiff/deceased Ramesh
Godhawani and respondent no. 2 both were working in Commercial Tax
Department in Indore and were familiar with each other. Respondent/defendant
no. 1, who happened to be sister of respondent no.2 run a business in the name
of firm Gurukrupa Panjabi Suits. She obtained Rs. 1,00,000/- from the plaintiff
for upgradation of her business and respondent no. 2 also promised that he
would be responsible for returning of the said amount. The plaintiff deposited
bank demand draft dated 01/05/1995 of Rs. 1,00,000/- in the account of
defendant no. 1 Shobha Sinha, but later on, the respondents denied to return the
said amount, then the plaintiff gave registered notice through counsel to
respondent nos. 1 and 2, but despite service of notice, they did not pay the said
amount, then the appellant/plaintiff preferred a civil suit against them.
3/ Respondents/ defendants by filing their reply denied all the
averments made in the plaint by stating that the defendants did not get any
amount of Rs. 1,00,000/- through said bank draft. If any draft has been issued
by the plaintiff to other person, the defendants were not responsible for the said
transaction. Defendant no. 1 was never known as Shobha Sinha. Her actual
name is Shobha Verma. Notice was duly unserved by them. Gurukrupa Panjabi
Suits was not impleaded as a party, therefore, in absence of necessary party,
the civil suit is not maintainable.
4/ On the aforesaid findings, the trial Court framed the issues and
permitted the parties to lead evidence. The trial Court, vide judgment and decree
dated 13/10/2001, dismissed the civil suit. Being aggrieved by the said judgment
and decree, the appellants preferred this first appeal before this Court.
5/ Learned counsel for the appellant/s submits that the
appellant/plaintiff has proved his case on the basis of plaintiff's witnesses
Hemant Madhukar Sethe (PW-2) and Ramesh (PW-3) along with documentary
evidence Ex.-P/1 to P/9, but the trial Court has ignored the material evidence
available on record. The impugned judgment and decree passed by the trial
Court is against the law and facts. Defendant no. 1 in her cross-examination
also admits that bank draft of Rs. 1,00,000/- had been deposited in her account,
but the same was also ignored by the trial Court. Before closure of partnership
firm on 01/04/1996, bank account was also closed on 18/05/1995. The trial
Court has committed grave error by dismissing the civil suit, hence he prays
that the impugned judgment and decree be set aside and the case of the
appellant/s be decreed against the respondent/s.
6/ Nobody appeared on behalf of the respondents at the time of final
argument before this Court.
7/ From perusal of the oral and documentary evidence available on
record, it appears that as per the certificate dated 06/10/1999 issued by State
Bank of Indore, it is proved that at the request of Gopal Godhawani, bank draft
of Rs. 1,00,000/- dated 01/05/1995 was issued in favour of firm Gurukrupa
Panjabi Suits, Indore and the amount of the said draft had been withdrawn on
01/05/1995, but in Ex.-P/4, name of account holder was shown as Shobha
Verma. It is argued by the appellant/s that Shobha Verma is the
respondent/defendant no. 1 Shobha Sinha, who is also known as Shobha
Verma, but defendant Shobha Verma (DW-1) in her deposition categorically
denied that bank draft of Rs. 1,00,000/- has been deposited in her account. She
was known as Shobha Verma, but in para-19, she admits that bank demand
draft of Rs. 1,00,000/- has been deposited in her account, but it was not given
by the plaintiff/appellant. From perusal of the partnership deed (Ex-D/1), it
appears that partnership was executed between Kailash Namdev and Shobha
Verma, but as per the document Ex-D/5, the partnership firm was dissolved on
01/04/1996. The said amount was deposited in the account of Shobha Verma,
which is not the business account of the firm Gurukrupa Panjabi Suits. Hemant
Madhukar Sethe (PW-2), who was a clerk posted in Indur Co-operative Bank,
also admits in his cross-examination that name of Shobha Verma was not
mentioned in the bank draft (Ex.-P/4) and Ex.-P/4 was not signed by depositor,
therefore, they cannot say that who deposited the said draft, Therefore, it is
crystal clear that the amount of Rs. 1,00,000/- has been deposited in the
personal account of Shobha Verma. This cannot be considered as business
account of the firm Gurukrupa Panjabi Suits. No agreement has been executed
between the appellant/ plaintiff and the firm Gurukrupa Panjabi Suits and
nothing has been mentioned that the said amount was given to thefirm
Gurukrupa Panjabi Suits. therefore,, the entire suit filed by the appellant/plaintiff
appears to be doubtful.
8/ It is also noteworthy that as per the plaint allegation, Shobha Verma
and Kailash Namdev were the partners of partnership firm Gurukrupa Panjabi
Suits. Plaintiff has not impleaded Kailash Namdev as party. Firm Gurukrupa
Panjabi Suits was also not made party before the trial Court, therefore, the trial
Court has rightly considered that in absence of necessary party, the suit is not
maintainable.
9/ In view of the aforesaid oral and documentary evidence available on
record, this Court is of the considered opinion that the judgment and decree
passed by the trial Court is well-reasoned and is based upon due appreciation
of oral as well as documentary evidence available on record. The appellant/s
has failed to establish as to how the finding and fact recorded by the trial Court
is illegal, perverse and based upon no evidence.
10/ In light of the aforesaid, this First Appeal, sa n s merits and
substance, is hereby dismissed. No order as to costs.
CC as per rules.
(ANIL VERMA)
JUDGE
amol
