M/S. Brij Mohan Dinesh Chand vs Umesh Chand
2023 Latest Caselaw 4108 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

                   S.B. Civil First Appeal No. 124/1996

Umesh Chand son of Shri Jagdish Prasad Khandelwal, resident of
town Katra, Nadbai District Bharatpur, Rajasthan
                                                             ----Plaintiff/Appellant
                                      Versus
1. M/s Brij Mohan Dinesh Chand, Commission agent through
partner of the firm Shri Mahesh Chand son of Shri Ram Dayal
Vaishya, Katra, Nadbai, Bharatpur
2. Mahesh Chand Son of Shri Ram Dayal, Resident of Town
Katra, Nadbai, District Bharatpur
3. Smt. Brijanti Devi Wife of Shri Jagdish Prasad, Resident of
Town Katra, Nadbai, District Bharatpur
                                                  ----Defendants/Respondents

Connected With S.B. Civil First Appeal No. 106/1996

1. M/s Brij Mohan Dinesh Chand, Commission agent through partner of the firm Shri Mahesh Chand son of Shri Ram Dayal Vaishya, Katra, Nadbai, Bharatpur

2. Mahesh Chand Son of Shri Ram Dayal, Resident of Town Katra, Nadbai, District Bharatpur

3. Smt. Brijanti Devi Wife of Shri Jagdish Prasad, Resident of Town Katra, Nadbai, District Bharatpur

----Defendants/Appellants Versus Umesh Chand son of Shri Jagdish Prasad Khandelwal, resident of town Katra, Nadbai District Bharatpur, Rajasthan

----Plaintiff/Respondent

For Plaintiff(s) : Mr. S. C. Gupta, Adv. for plaintiff For Defendant(s) : Mr. Abhi Goyal, Adv. for defendants

HON'BLE MR. JUSTICE NARENDRA SINGH DHADDHA

Judgment

DATE OF JUDGMENT 24/08/2023

(2 of 4) [CFA-124/1996]

The instant appeals have arisen out of the judgment and

decree dated 14.12.1995 passed by the Additional District Judge

No.1, Bharatpur (for short 'the trial court') in Civil Suit No.19/94

(46/93), whereby the trial court partly decreed the suit of the

appellant-Umesh Chand-plaintiff (for short 'the plaintiff') for

recovery of money.

Brief facts of the case are that the plaintiff filed a suit for

recovery of money against the respondents-M/s Brij Mohan Dinesh

Chand & Ors.-defendants (for short 'the defendants') in which

plaintiff stated that he was a partner in the defendant firm M/s Brij

Mohan Diensh Chand, Commission Agent, Nadbai upto the year

1988. At the time of his retirement, Rs.60,580.57/- remained due

in the account books of the firm. As per the terms, plaintiff was

entitled to get 12% interest on it. Plaintiff demanded Rs.50,000/-

in the year 1993 but the defendants refused to pay. Plaintiff was

entitled to get Rs.1,02,100/- with interest.

Defendants filed their written statement and denied that any

amount was due against them and also stated that in the year

1991-92, plaintiff's amount of Rs.54,830.32/- was due. Plaintiff

and his brother had taken Rs.50,000/- on various dates by a

fraction of 10,000/- in cash and thereafter, plaintiff was paid

Rs.4,830.32/- before Shiv Kumar. So, no amount of plaintiff was

due.

The trial court framed the following issues on pleading of the

parties:-

(1) Whether on 17.12.1990, the plaintiff had received Rs.10,000/-

and Rs.15,000/- on 07.02.1991 through cheques?

(3 of 4) [CFA-124/1996]

(2) Whether the plaintiff and his brother Shanti Swaroop had

received Rs.10,000/- on 02.04.1992, Rs.10,000/- on 06.04.1992,

Rs.10,000/- on 09.04.1992, Rs.10,000/- on 11.04.192 and

Rs.10,000/- on 15.04.1992, in cash?

(3) Whether as per para 3 of suit it was agreed to give interest

thereon?

(4) Relief?

CFA No.124/1996- Learned counsel for the plaintiff

submits that the trial court wrongly decided the issue No.1 against

the plaintiff because plaintiff in his evidence clearly stated that the

said amount was not given to him and bearer cheques did not

have the signature of the plaintiff. Learned counsel for the plaintiff

also submits that there is no evidence that these amounts were

paid by account payee cheques. Learned counsel for the plaintiff

also submits that defendants had not adduced the evidence of O.P.

Gupta and Baijanti Devi. Learned counsel for the plaintiff also

submits that defendants had not got examined these bearers

cheques from handwriting expert. So, finding of the trial court

regarding issue No.1 be set aside.

CFA No.106/1996- Learned counsel for the defendants

submits that the trial court wrongly decided the issue No.2 in

favour of the plaintiff. Learned counsel for the defendants also

submits that plaintiff and his brother Shanti Swaroop has taken

Rs.50,000/- on various dates by cash and rest of the amount

Rs.4,830.32/- was paid to him before Shiv Kumar. Learned

counsel for the defendants also submits that the trial court

wrongly considered para 14 and 15 of the written statement.

(4 of 4) [CFA-124/1996]

Amount was paid by the defendants. So, finding of the trial court

regarding issue No.2 be set aside.

I have considered the arguments advanced by learned

counsel for the plaintiff as well as learned counsel for the

defendants.

While deciding the issue No.1, trial court rightly came to the

conclusion that the plaintiff had received Rs.10,000/- and

Rs.15,000/- by bearer cheques. The trial court had compared the

signature of the plaintiff on other documents with said bearer

cheques. So, in my considered opinion, finding of the trial court

regarding issue No.1 does not suffer from illegality and infirmity.

While deciding the issue No.2, trial court rightly observed

that in para 14 and 15 the defendants stated that they had paid

the said amount by cheque but no cheque was exhibited during

evidence regarding payment of Rs.50,000/-. No cogent evidence

was led by the defendants. So, in my considered opinion, the trial

court had not committed any error in deciding the issue No.2

against the defendants. So, present appeals being devoid of merit,

are liable to be dismissed, which stand dismissed accordingly.

Pending application(s), if any, stand(s) disposed of.

(NARENDRA SINGH DHADDHA),J

Jatin/237-238

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