Full Text
RSA 27/2016 and CM APPL.2722/2016
CHANDRAWATI Appellant Tlirough: Mr. Virendra Singh,Advocate
Through:
NARESHKUMAR GUPTA Appellant
Through:
Through: Mr. Virendra Singh,Advocate
31.01.2019 The appellant is aggrieved by the decree dated 02.02.2011 which has directed that the appellant will pay an amount of
Rs.l,30,000/-to respondent no.l.
ORDER
2. The learned counsel for the appellant submits that the appellant stood guarantee for a loan of Rs.1,30,000/- taken by her nephew viz Rajesh Sharma from R-1. However, the loan document neither 2019:DHC:7957 mentions the rate ofinterest nor the period for which the loan was taken.
3. It is the appellant's case that the suit filed in the Trial Court did not seek a repayment ofthe loan amount extended by Naresh Kumar Gupta,respondent no.l to Rajesh Sharma.
4. The aforesaid case arise outoftwo suits bearing no.983/07 and 983A/07 (Old suit no. 455A/06) which were disposed off by a common judgment. A suit has been filed by the appellant. The respondent filed suit No. 983/2007 which was treated as the main case and sought recoveiy ofthe suit property i.e. the house which he claims to have purchased from the appellant and rights in which were conveyed to him by Chandrawati.
5. The suit filed by Chandrawati i.e. suit No. 983A/07 sought a decree for cancellation of documents being: i) agreement to sell, ii) possession letter, hi) receipt and iv) affidavit, all dated 24/03/2003, and allegedly executed in favour of Sh. Naresh Kumar Gupta and whom she had soughta declaration ofbeing null and void.
6. It is the appellants case that she had agreed to become a guarantor for respondent no. 2- Rajesh Sharma, for a loan of Rs.1,30,000/- which he had taken fi 'om respondent No.l-Naresh Kumar Gupta.However,documents ofher standing as a guarantor for Rajesh Sharma have been misused and manipulated by respondent no.l-Naresh Kumar Gupta inasmuch as he has sought to convert the loan documents to convey rights in her property to R-1/ Naresh Kumar Gupta.
7. It is further contended that although the learned Trial Court had 3> concluded thatthe documents conveying interests/rights to respondent no. 1 were manipulated and would not confer any right or title or interest over the suit property, yet the suit filed by Chandrawati was dismissed.
8. The First Appellate Court,disagreed by the findings ofthe Trial Court and held that since respondent no.2 had not returned money to respondent no.l, and the appellant, Chandrawati who had stood as guarantor, ought to have paid the monies, i.e., Rs.1,30,000/- to Narendra Kumar Gupta/R-1.
9. In the circumstances, the following question arise for determination:- "7. Whether the judgment and decree passed by First Appellate Court is suffering from perversity and illegality.
2. Whether the First Appellate Court have commuted an error in not taking into consideration and appreciating the evidence on record.
3. Whether thefirst Appellate Court ignored thefinding ofLd. Trial Court based on evidence illegally and without considering thesame asper law.
4. Whether the FirstAppellate can ignore and disturb the settled principle of law that the fact which have been admitted by otherside nosed notto beproved.
5. Whether the First Appellate Court is not bound to examine the entire relevant evidences or record to arrive at conclusion.
6. Whether the First Appellate Court refused to consider the relevant evidence, which have been adduced on the disputed issue which gives birth to the substantial question oflaw.
7. Whether thefirst Appellate Court have arrived as its finding by ignoring important, relevantevidence.
10. Mr. Virender Singh, the learned counsel for Chandrawati submits that when the documents on which the respondents were relying upon to transfer rights to them were found to be fraudulently modified, the same cannot be taken as any basis for a direction for payment of money, therefore, the impugned order has erred. He farther submits that interestingly,no relieffor recovery ofmonies was sought in the proceedings before rather the Trial Court or the Appellate Court.
11. The issues examined by the Trial Court in Suit No.983A/2007 reads as under i. Whether the plaintiff is entitledfor the decree of declaration declaring the documents i.e. agreement to sell, possession letter, receipt and affidavit dated 24.3.2003 as null and void?OPP. a. Relief.
12. The issues examined by the Appellate Court in Suit NO. 983/2007 reads as under:- "i Whether the plaintiffis entitledfor possession as prayedfor? OPP. Hi. Whetherplaintiffhas obtainedsignature ofthe defendant on documents in questionfraudulently? OPD. >3 iv.. Whether the suit has not been properly valuedfor the purpose ofcourtfees andjurisdiction? OPD. iv. Relief"
13. The Court would note that what was determined by both the Courts was not whether monies were repayable by the appellant- Chandrawati to respondent no.l on the basis of a loan taken by respondent no.2. Since, the matter was not tried on those lines, any direction or decision therein would be superfluous. Furthermore,the suit was filed only for the possession ofimmovable property and not for recovery of monies from either respondent no.2 or his guarantor Chandrawati - the present appellant. In these circumstances, the direction ofthe Trial Court to the effect that Rs.1,30,000/- be repaid by the appellant- Chandrawati to respondent no.l cannot be sustained.
14. Accordingly, the impugned order directing Chandrawati to make the said paymentis set aside.
15. The appeals are allowed in the above terms. NA^IWAZIRI,J JANUARY 31,2019 b