Nitin Garg v. Arvind Tyagi

1. This Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) is filed by the plaintiff in the suit impugning the Judgment of the trial court dated 20.12.2016 by which trial court has dismissed the suit for recovery of Rs. 11 lakhs filed by the appellant/plaintiff against the respondent/defendant being the balance amount due to the appellant/plaintiff out of the friendly loan 2018:DHC:7264 of Rs. 15 lakhs given by the appellant/plaintiff to the respondent/defendant.

2. It may be noted that suit has been dismissed although the respondent/defendant was exparte in the suit and the appellant/plaintiff led evidence and proved his case. The respondent/defendant is also exparte in this Court as he has not appeared after service.

3. The facts of the case are that the appellant/plaintiff pleaded that he advanced a friendly loan of Rs. 15 lakhs in cash to the respondent/defendant of which a sum of Rs. 4 lakhs was repaid to the appellant/plaintiff. In discharge of his liability, the respondent/defendant issued two self cheques bearing nos. 000085 and 000086 dated 20.05.2014 drawn on HDFC Bank, 72, Ved Mansion, New Delhi-1. The cheques were from the account of M/s Mahip Developers Pvt. Ltd. of which respondent/defendant was the authorized signatory. The cheques were handed over to the appellant/plaintiff by the father of the respondent/defendant, namely Sh. Om Dutt Tyagi with the covering letter dated 06.05.2014. Despite repeated requests, the balance loan amount was not repaid, and it was found that there were no funds in the respondent's/defendant's bank account. Thus, after serving a Legal Notice dated 23.01.2015, the subject suit was filed.

4. The fact that appellant/plaintiff proved his case and exhibited the necessary documents, is seen from para 5 of the impugned judgment and this para 5 reads as under:- “5. To prove its case, the plaintiff examined himself as PW[1] who tendered his evidence by way of affidavit in which the contents of the plaint have been reiterated and he got exhibited the following documents:-

┌────────────────────────────────────────────────────────────────────────────────────────┐
│             Sl. No.         No. of Exhibits           Details of Documents             │
├────────────────────────────────────────────────────────────────────────────────────────┤
│             1.              Ex.PW1/A                  cheques         bearing          │
│                                                       no.000085 and 000086             │
│                                                       both dated 20.05.2014,           │
│                                                       both drawn on HDFC               │
│                                                       Bank,     72,      Ved           │
│                                                       Mansion, New Delh-1,             │
│                                                       from    the     account          │
│                                                       maintained in the name           │
│                                                       of     M/s       Mahip           │
│                                                       Developers Pvt. Ltd.,            │
│             2.              Ex.PW1/C                  Postal receipt                   │
│             3.              Ex.PW1/D                  Undelivered envelop              │
│             4.              Mark A                    Copy of legal notice             │
│                                                       dated       23.02.2015           │
│                                                       without signature                │
│             5.              Mark B                    Internet postal tracking         │
│                                                       report                           │
│ RFA No. 626/2017                                                  Page 3 of 5          │
│                                                                        2018:DHC:7264   │
│ 5.           The trial court has dismissed the suit by firstly holding                 │
└────────────────────────────────────────────────────────────────────────────────────────┘

6. In my opinion, trial court has fallen into a grave error because Section 118 of the Negotiable Instruments Act, 1881 states that once a cheque is given, the cheque has to be presumed to have been given for consideration. Once the appellant/plaintiff proved his case and respondent/defendant remained exparte and led no evidence, there was no reason to disbelieve the case of the appellant/plaintiff. In fact, the appellant/plaintiff was being very fair because though a sum of Rs. 4 lakhs was returned in cash, and this fact the appellant/plaintiff could have concealed, the appellant/plaintiff yet admitted that an amount of Rs. 4 lakhs had been repaid and only claimed the balance amount of Rs. 11 lakhs out of the total loan amount of Rs. 15 lakhs.

7. In view of the aforesaid discussion, this appeal is allowed. The impugned Judgment of the trial court dated 20.12.2016 is set aside. The suit of the appellant/plaintiff is decreed for a sum of Rs. 11 lakhs alongwith pendente lite and future interest @ 9% per annum simple. The appellant/plaintiff will also be entitled to costs of the suit. Decree sheet be prepared.

NOVEMBER 15, 2018/ Ne VALMIKI J. MEHTA, J