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26th October, 2018 MUNISH KUMAR SHARMA..... Appellant
Through: Mr. Prakash Gautam, Advocate with Mr. Vivek Ojha, Advocate.
Through:
To be referred to the Reporter or not? VALMIKI J. MEHTA, J (ORAL)
Caveat No. 976/2018
JUDGMENT
1. No one appears for the caveator. Caveat stands discharged. C.M. No. 44442/2018(exemption)
2. Exemption allowed subject to just exceptions. C.M. stands disposed of. 2018:DHC:6886 RFA No. 872/2018 and C.M. No. 44441/2018(stay)
3. This Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) is filed by the defendant in the suit impugning the Judgment of the Trial Court dated 07.08.2018 by which trial court has decreed the suit filed by the respondent/plaintiff for recovery of Rs. 22,94,600/- comprising of the figure of the principal loan amount of Rs. 14,90,000/- and the balance amount as interest, repayable by the appellant/defendant to the respondent/plaintiff.
4. The facts of the case are that the respondent/plaintiff filed the subject suit pleading that he gave a loan of Rs. 14,90,000/- to the appellant/defendant by means of two cheques. The first cheque was dated 22.02.2012 for Rs. 4,90,000/- and the second cheque of Rs.10,00,000/- was dated 30.01.2013. On 30.01.2013 when the cheque of Rs.10,00,000/- was given to the appellant/defendant, then, the parties had entered into a written Loan Agreement dated 30.01.2013 mentioning the factum of loan and its repayment with interest. Two post dated cheques were also given, as stated in the loan agreement, which were dishonoured on presentation, and consequently after serving the Legal Notice dated 17.11.2015, the subject suit for recovery was filed by the respondent/plaintiff.
5. The appellant/defendant contested the suit by filing written statement. Receipt of the loan of Rs.14,90,000 as also execution of the Loan Agreement dated 31.01.2013 were not disputed by the appellant/defendant. It was contended by the appellant/defendant that he had repaid the entire loan amount by cash and cheques as detailed in para 5 of the written statement and this para 5 reads as under:-
7. The relevant issue for consideration before the trial court was issue no. 1 and trial court has held this issue against the appellant/defendant by observing that there is no dispute that the loan was taken by the appellant/defendant and onus was upon the appellant/defendant to prove that he had returned the loan amount with interest but the appellant/defendant failed to discharge this onus. The trial court has rejected the reliance placed by the appellant/defendant on two letters dated 28.08.2015/Ex.DW1/A and 03.11.2015/Ex.DW1/C by observing that the appellant/defendant has failed to prove that these letters were in fact sent to the respondent/plaintiff inasmuch as the postal/courier receipts (Ex. DW1/B and Ex.DW1/D) which are relied upon for the aforesaid letters Ex.DW1/A and DW1/C show the sender’s name as Mr. Rakesh Kumar and Mr. Pankaj Kumar and which persons are different than the appellant/defendant/Mr. Munish Kumar Sharma. This Court may note that counsel for the appellant/defendant argued that Mr Rakesh Kumar and Mr. Pankaj Kumar were employees of the appellant/defendant but it is conceded before this Court that no evidence was led by the appellant/defendant that Mr. Rakesh Kumar and Mr. Pankaj Kumar were the employees of the appellant/defendant.
8. So far as sending of the Reply dated 05.12.2015 by the appellant/defendant is concerned, this Court notes that the Reply dated 05.12.2015 was in response to a legal notice sent by the respondent/plaintiff under Section 138 of the Negotiable Instruments Act, 1881, and obviously therefore the appellant/defendant gave the convenient reply of repaying the loan amount, however, the fact of the matter is that the entire loan amount is said to be repaid in cash but not a single document has been filed to evidence the factum of repayment of loan by different amounts as stated in para 5 of the written statement, much less by execution of specific receipts by the respondent/plaintiff in favour of the appellant/defendant. The trial court in my opinion has rightly, therefore, decreed the suit for recovery of loan with interest by disbelieving the defence of the appellant/defendant of having repaid the loan amount. This Court would also like to note that the only repayment by two cheques totalling to Rs.71,000/- and Rs.30,000/- are admitted by the respondent/plaintiff and the respondent/plaintiff has stated that these cheques were only towards payment of interest. Therefore, it is seen that there is no credible documentary evidence filed by the appellant/defendant of having repaid the entire loan amount in cash.
9. The relevant discussion of the trial court in this regard is contained in paras 14 to 16 of the impugned judgment, and these paras read as under:- “Issue No.1
14. The onus of this issue is on the plaintiff. The defendant has not denied that loan of Rs.14,90,000/- through cheques was granted to him and an agreement on 30.01.2013 was executed between the parties. However, it is the defence of the defendant that the entire loan amount was repaid between 22.03.2013 to 27.12.2013 by cash and cheques. The plaintiff has not disputed having received amounts of Rs.71,000/- on 22.10.2013 and Rs. 30,000/- on 27.12.2013 through cheques. However, he had deposed that these amounts were not paid towards the loan amount. It is the case of defendant himself that parties were having further bank transactions with each other for mutual financial needs. Further, the total amount mentioned in para 5 of the written statement is Rs.15,16,000/-. In cross- examination, DW[1] has deposed that there is no interest component in the total amount of Rs.15,16,000/-. It is unbelievable that defendant would have paid more than the loan amount to the plaintiff. I find the testimony of PW[1] reliable and trustworthy. The courier receipt-Ex.DW1/B shows the sender's name as 'Rakesh Kumar'. Thus, the letter dated 28.08.2015 was not sent by the defendant. Had it been so, the courier receipt- Ex.DW1/B would have shown the sender's name as that of the plaintiff. Similarly, the postal receipt-Ex.DW1/D shows the name of the sender as 'Pankaj Kumar'. Thus, it has not been proved that letters dated 28.08.2015 and 03.11.2015 were sent by the defendant to the plaintiff. The defendant did not file any police complaint or case against the plaintiff for not returning his cheques and for not issuing the cash receipts.
15. The defendant in his written statement has categorically stated that after the loan amount had been paid, parties were having further bank transactions with each other for mutual financial needs. However, the defendant has failed to lead evidence to prove the same. In his cross-examination, DW[1] has admitted that he has not filed any documentary proof to show that there were any bank transactions between the parties after 27.12.2013. Had there been any bank transactions between the parties after 27.12.2013, it would not have been difficult for defendant to produce the documentary evidence in this regard. The testimony of the defendant does not inspire confidence. The defendant has admitted the execution of the agreement dated 30.01.2013 wherein the defendant agreed to pay interest @ 1.5% per month on the total loan amount.
16. The plaintiff has been able to prove this issue. Therefore, the plaintiff is entitled to recover an amount of Rs.22,94,600/- from the defendant. However, the pendente lite and future interest claimed @ 18% p.a. is on higher side. The plaintiff is entitled to pendente lite and future interest @ 8% p.a. This issue is decided accordingly.”
10. Learned counsel for the appellant/defendant sought to argue that there were other transactions between the parties as reflected from the bank account filed by the respondent/plaintiff as Ex.PW1/6, but be that as it may, that even if there were other transactions, the issue is not that whether there were other banking transactions between the parties but the issue as to whether the appellant/defendant had repaid the loan amount in cash as stated by him, and as already discussed in detail above that no credible evidence, much less credible documentary evidence, was led and proved by the appellant/defendant to show repayment of the loan in cash by him to the respondent/plaintiff.
11. In view of the aforesaid discussion, there is no merit in the appeal. Dismissed.
OCTOBER 26, 2018 VALMIKI J. MEHTA, J Ne