Geeta Devi & Anr. v. M/S Sanjeev Steel Industries & Anr.

1. Whether Reporters of Local papers may be allowed to see the Judgment? NO. 2. To be referred to the Reporter or not? NO. 3. Whether the judgment should be reported in the Digest? No. HIMA KOHLI, J. (ORAL)

1. The present appeal arises out of a judgment dated 25.9.1989 passed by the learned Additional District Judge in a suit for recovery of a sum of Rs.30,000/- filed by the appellants against the respondents.

2. The present appeal was admitted vide order dated 6.3.1991. However, no paper book has been filed by the appellants till date. The trial court record was also not requisitioned. Vide order dated 17.11.2008, it was noticed by the Division Bench that the respondents were not served and nor had the trial court record been requisitioned. The trial court record was 2009:DHC:4736 directed to be requisitioned through a special messenger. It was reported that the same was already destroyed on 21.7.2003, in the process of weeding out of old records. In the order dated 5.2.2009, the submission of the counsel for the appellants was recorded that he would make efforts to prepare the appeal paper book on the basis of whatever documents he had. No paper book has been filed by the appellants till date. Steps were taken to serve the respondents by ordinary process as well as dasti, but in view of the affidavit of service filed by the appellants stating, inter alia, that the respondent No.2, who is the proprietor of respondent No.1 refused to accept notice, the respondents were deemed to be served. In the absence of the trial court record and on account of non-filing of the paper book, this Court has no option but refer to and rely upon the contents of the impugned judgment alone.

3. As noted in the impugned judgment, the facts averred by the appellants are that the appellant No.2 gave a loan of Rs.20,000/- on 07.07.1983 by issuing two cheques of Rs.10,000/- each in the name of respondent No. 1 and the respondents agreed to repay the same with interest @ 18% p.a. As per the appellants, the respondents paid them interest upto August 1983 and failed to pay the same thereafter, despite repeated demands and requests. As a result, the appellants preferred a suit on 3.7.1986, claiming a sum of Rs.20,000/- from the respondents as the principal amount and a sum of Rs.10,000/- as interest @ 18% p.a. w.e.f.7.7.1983 onwards.

4. The aforesaid suit was contested by the respondents, who entered appearance and filed their written statement. In their written statement, certain preliminary objections were raised with regard to the jurisdiction of the court stating that the suit was based on two different and distinct alleged transactions and that the suit was liable to be dismissed under the provisions of the Money Lending Act and also that the suit was barred by limitation. On merits, the respondents stated that in the month of December 1982, the appellant No.2 approached the respondent No.2 with a request to supply steel tubing of various dimensions and sizes through M/s Geeta Steel Furniture, Vikas Puri, Delhi. The appellant No.2 advanced a cheque of Rs.10,000/- in the first week of January 1983, but the respondent No.2 requested the appellant No.2 to make full payment of the goods he wanted to have. The appellant No.2 kept delaying the matter for some time and requested for delivery of the goods on credit. The respondent No.2 refused to part with the steel tubes without the full payment. However, on the assurance of one Mr.Dinesh Kumar, an employee of the respondents and a near relation of the appellant No.2, the goods were finally supplied to the appellants, vide Bill No. 603 dated 7.7.1983 for Rs.30,013/- (Ex.DW-3/1). Against the aforesaid bill, the appellant No.2 handed over two cheques of Rs.10,000/- each to the respondent No.2. One cheque for an amount of Rs.10,000/- was already given by the appellants to the defendants as advance against the order placed by them. However, on presentation, one of these cheque of Rs.10,000/- was dishonoured. The respondent No.2 claimed that it was with great difficulty that he could recover the amount against the dishonoured cheque.

5. On the basis of the pleadings of the parties, the following issues were framed in the suit:- “1.Whether the pltff. gave a loan of Rs.20,000/- to the deft?

2. Whether the pltff.is entitled to charge interest @ 18% p.a.?

3. Whether this court has no jurisdiction to try this case as the suit is based on two different and distinct transactions?

4. Whether the suit is barred by time?

5. Whether the suit is not maintainable because the petitioners are money lenders and not registered under the Money Lending Act?

6. Whether the pltff. is entitled to recover the amount in suit?

7. Relief.”

6. In support of their case, the appellants produced appellant No.2 who examined as PW-1. On behalf of the respondents, four witnesses appeared. The respondent No.2, proprietor of respondent No.1 appeared as DW-3. The respondents also summoned and examined Sh.Rakesh Kumar, Clerk, Central Bank of India, Loha Mandi, Naraina, Delhi, as DW-1 and Sh.S.K.Gulati, Clerk, Central Bank of India, Ram Tirath Nagar, Jhandewalan, Delhi, as DW-2 and Sh.Jagat Narain Sharma as DW-4. The trial court arrived at a finding that the appellants had failed to lead any evidence to establish that the cheques were given as a loan to the respondents whereas the respondents had placed on record documents to establish that the goods were sold to the appellants for a sum of Rs.30,013/- and the same were duly reflected in the sales tax returns. Thus issues No.1 & 2 were decided against the appellants by holding that the appellants had failed to prove that a sum of Rs.20,000/- was advanced to the respondents as a loan.

7. Aggrieved by the aforesaid judgment, the appellants have preferred the present appeal. Counsel for the appellants submits that the trial court erred in overlooking the submission made on behalf of the appellants that the appellant No.1 is a housewife whereas the appellant No.2 is a teacher and hence no business transaction could have taken place between the parties, as claimed by the respondents. His second submission is that the signatures appearing on Bill No. 603, marked as Ex.DW-3/1 filed by the respondents was denied by the appellants and hence reliance could not have been placed by the trial court on the said document, while returning the findings in respect of issue No.1.

8. The aforesaid submissions made on behalf of the appellants can only be examined upon scrutinizing the trial court record. As noted above, except for the impugned judgment dated 25.9.1989, there is no record available for perusal. The appellants have failed to file the appeal paper book for the past 18 years. Despite non-filing of the appeal paper book, the Court had directed summoning of the trial court record on 17.11.2008, as it was not requisitioned earlier. But it was too late in the day as the trial court record had been weeded out on 21.7.2003. Despite liberty granted to them on 17.11.2008, no effort has been made by the appellants to prepare the appeal paper book on the basis of whatever documents they had. In the complete absence of any pleadings, documents and evidence, this Court is unable to examine the impugned judgment in the light of the submissions made by the appellants. The appellants have none other, but themselves alone to blame for their present predicament. In these circumstances, this Court has no option but to dismiss the appeal. The appeal is dismissed with no orders as to costs. (HIMA KOHLI) NOVEMBER 10, 2009 JUDGE mk