Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No.28/2001 & RFA No.45/2001
st
% 31 January, 2011
1. RFA No.28/2001
TILAK RAJ ...... Appellant
Through: None
VERSUS
RAMAN KHANNA ...... Respondent
Through: None.
&
2. RFA No.45/2001
TILAK RAJ ...... Appellant
Through: None
VERSUS
VIJAY VINOD SEHGAL ...... Respondent
Through: None.
CORAM:
HON’BLE MR. JUSTICE VALMIKI J.MEHTA
1. Whether the Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in the Digest?
VALMIKI J. MEHTA, J (ORAL)
rd
1. This matter is on Regular Board of this court since 3 January,
RFA No.28/2001 & RFA No.45/2001 Page 1 of 6
2011. Today, it is an effective item no.6 on the Regular Board. It is 2.45 pm.
No one appears for the appellant. I have therefore perused the record and
am proceeding to dispose of the appeal.
2. The challenge by means of these two appeals is to the two
impugned judgments and decrees, both dated 13.9.2000, whereby the suits
of the appellants/plaintiffs for recovery were dismissed. Both the impugned
judgments are almost identical and the facts are also nearly identical. For
the sake of convenience, the appeals are therefore disposed by this common
judgment. Reference is made for convenience to facts of RFA No.28/2001.
3. The appellant/plaintiff filed the suit of recovery of Rs.36,530/-
against the respondent on the ground that he gave a loan of Rs.26,000/- to
the defendant carrying interest at 18% per annum, which the
respondent/defendant failed to repay, resulting in the filing of the suit. The
respondent/defendant contested the suit and stated that the money which
was received by the defendant was received not from the appellant but from
his son Inder Mohan Puri. It was stated that the bank draft of Rs.26,000/-
was received by the respondent on account of sale of a plot belonging to
Smt. Shashi Bala Khanna, wife of the defendant and which plot was situated
at Jagdamba Colony, Shahdara.
4. The Trial Court has dismissed the suit on the ground that it has
been found as a the fact that the bank draft was prepared from the bank
account of Sh.Inder Mohan Puri and that it was not proved that the
appellant/plaintiff made any payment to Inder Mohan Puri for any further
RFA No.28/2001 & RFA No.45/2001 Page 2 of 6
payment to respondent/defendant. It was therefore held that Sh. Inder
Mohan Puri was the only person who was entitled to file the suit for recovery.
The relevant portion of the impugned judgment is contained in paras 13 to
15, which read as under:-
“13. Onus to prove this issue was on the plaintiff in
discharge of which he has examined himself as PW-1 and
PW-2 Madan Lal Garg. PW-1 Tilak Raj no doubt stated in
his statement that the amount of Rs.26,000/- was paid by
him to the defendant by a bank draft bearing no. 597008
dated 13.3.89 prepared at Oriental Bank of Commerce,
Roshanara Road, Delhi.
14. PW-2 Madan Lal Garg, Special Assistant of the said
bank had brought the original record and said that one
Inder Mohan PUri got one draft of Rs.26,000/- prepared
from his branch on 13.2.1989 in favour of the defendant
Raman Khanna and the said bank draft was bearing
no.597008 and proved the photo copy thereof as Ex.PW-
2/1. In view of this statement being almost unchallenged
on cross-examination, I find that it was Inder Mohan Puri
who got the said bank draft prepared in the bak and the
person who got bank draft prepared in the bank had paid
the said amount. Therefore by the testimony of PW-2it was
Inder Mohan Puri, who paid the amount of Rs.26,000/- to
the bank. There is no evidence on record either from
statements PW-1 or PW-2 or Inder Mohan Puri who could
not be produced and examined, that the said amount was
paid by Tilak Raj on that date to Inder Mohan Puri.
Therefore in the absence of any statement being on record
that the plaintiff Tilak Raj had paid the said amount to
Inder Mohan Puri who was directed to get the bank draft
prepared, I find that the plaintiff bitterly failed to prove the
fact that he made the payment of Rs.26,000/- to the bank
for preparing the said bank draft and in those
circumstances it has been proved that Inder Mohan Puri
paid the said amount for the said draft. Accordingly,
payment has been proved by the testimonies of these
witnesses in the name of Inder Mohan Puri since he had
applied in the bank for preparing the draft and paid the
amount in that regard.
RFA No.28/2001 & RFA No.45/2001 Page 3 of 6
15. There is no evidence on record from the statement of
Tialk Raj that he had handed over the cash of Rs.26,000/-
to Inder Mohan Puri on any date or on 13.2.89 to get the
bank draft prepared. Therefore, I find that the plaintiff
bitterly failed to prove the payment to the defendant in his
own name. Once the payment has been proved by the
said bank draft and the said bank draft has been got
prepared by Inder Mohan Puri, I find that it was Inder
Mohan Puri who paid the said amount to the defendant.
That being so, I find that the plaintiff bitterly failed to prove
the payment of the loan of Rs.26,000/- to the defendant in
his own name. That being so. I find that the is not entitled
to recover the said amount, unless the suit was filed in the
name of Inder Mohan Puri or suit was filed by Tilak Raj
himself as attorney of Inder Mohan Puri. Inder Mohan Puri
was alive when the suit was filed. Therefore, it was Inder
Mohan Puri who could file the suit against the defendant to
recover the said amount and plaintiff Tilak Raj was having
no right, title or interest to file the suit against the
defendant to recover the said amount. Accordingly, I find
that the plaintiff bitterly failed to prove his entitlement to
recover any amount from the defendant. So this issue
stands decided in favour of the defendant and against the
plaintiff. “
5. I do not find any illegality and perversity in the aforesaid findings
and conclusions of the Trial court. The appellant has admitted in his cross-
examination that he did not have any agreement or pro-note evidencing the
factum of granting of loan by him to the respondent/defendant. Admittedly,
the monies were paid not by the appellant/plaintiff to the
respondent/defendant but by Sh. Inder Mohan Puri, the son of the appellant
by means of a bank draft prepared from the bank account of Inder Mohan
Puri. Inder Mohan Puri was not arrayed as a plaintiff in the suit. He also did
not come into the witness box to depose in favour of his
father/appellant/plaintiff. The Trial Court has therefore rightly held that the
RFA No.28/2001 & RFA No.45/2001 Page 4 of 6
suit was liable to be dismissed.
6. This Court is not entitled to interfere in appeal merely because
two views are possible, unless the view taken by the Trial court is perverse
or leads to gross injustice. I do not find any of these elements exists for
upsetting the impugned judgment and decree. The appeal is therefore
dismissed leaving the parties to bear their own costs. The Trial Court
Record be sent back.
JANUARY 31, 2011 VALMIKI J. MEHTA, J.
ak
RFA No.45/2001
rd
1. The matter is on Regular Board of this court since 3 January,
2011. Today, it is an effective item no.7 on the Regular Board. It is 2.45
pm. No one appears for the appellant. I have therefore perused the record
and am proceeding to dispose of the appeal.
2. The only difference between the facts of this appeal and the
facts of RFA No.28/2001 is that in the present case, the loan was said to be
of Rs.40,000/-. The suit for recovery was for Rs.56,800/-. The
respondent/defendant additionally contended in this suit in his written
statement that Inder Mohan puri had received the amount of Rs.40,000/- by
bank draft and Rs.49,000/- in cash , i.e. Rs.89,000/- in total. The Trial Court
has on the same grounds as dealt with in RFA No.28/2001, and which equally
RFA No.28/2001 & RFA No.45/2001 Page 5 of 6
apply in the present appeal, dismissed the suit for recovery. This appeal is
therefore misconceived and is accordingly dismissed leaving the parties to
bear their own costs. The Trial Court Record be sent back.
JANUARY 31, 2011 VALMIKI J. MEHTA, J.
ak
RFA No.28/2001 & RFA No.45/2001 Page 6 of 6
+ RFA No.28/2001 & RFA No.45/2001
st
% 31 January, 2011
1. RFA No.28/2001
TILAK RAJ ...... Appellant
Through: None
VERSUS
RAMAN KHANNA ...... Respondent
Through: None.
&
2. RFA No.45/2001
TILAK RAJ ...... Appellant
Through: None
VERSUS
VIJAY VINOD SEHGAL ...... Respondent
Through: None.
CORAM:
HON’BLE MR. JUSTICE VALMIKI J.MEHTA
1. Whether the Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in the Digest?
VALMIKI J. MEHTA, J (ORAL)
rd
1. This matter is on Regular Board of this court since 3 January,
RFA No.28/2001 & RFA No.45/2001 Page 1 of 6
2011. Today, it is an effective item no.6 on the Regular Board. It is 2.45 pm.
No one appears for the appellant. I have therefore perused the record and
am proceeding to dispose of the appeal.
2. The challenge by means of these two appeals is to the two
impugned judgments and decrees, both dated 13.9.2000, whereby the suits
of the appellants/plaintiffs for recovery were dismissed. Both the impugned
judgments are almost identical and the facts are also nearly identical. For
the sake of convenience, the appeals are therefore disposed by this common
judgment. Reference is made for convenience to facts of RFA No.28/2001.
3. The appellant/plaintiff filed the suit of recovery of Rs.36,530/-
against the respondent on the ground that he gave a loan of Rs.26,000/- to
the defendant carrying interest at 18% per annum, which the
respondent/defendant failed to repay, resulting in the filing of the suit. The
respondent/defendant contested the suit and stated that the money which
was received by the defendant was received not from the appellant but from
his son Inder Mohan Puri. It was stated that the bank draft of Rs.26,000/-
was received by the respondent on account of sale of a plot belonging to
Smt. Shashi Bala Khanna, wife of the defendant and which plot was situated
at Jagdamba Colony, Shahdara.
4. The Trial Court has dismissed the suit on the ground that it has
been found as a the fact that the bank draft was prepared from the bank
account of Sh.Inder Mohan Puri and that it was not proved that the
appellant/plaintiff made any payment to Inder Mohan Puri for any further
RFA No.28/2001 & RFA No.45/2001 Page 2 of 6
payment to respondent/defendant. It was therefore held that Sh. Inder
Mohan Puri was the only person who was entitled to file the suit for recovery.
The relevant portion of the impugned judgment is contained in paras 13 to
15, which read as under:-
“13. Onus to prove this issue was on the plaintiff in
discharge of which he has examined himself as PW-1 and
PW-2 Madan Lal Garg. PW-1 Tilak Raj no doubt stated in
his statement that the amount of Rs.26,000/- was paid by
him to the defendant by a bank draft bearing no. 597008
dated 13.3.89 prepared at Oriental Bank of Commerce,
Roshanara Road, Delhi.
14. PW-2 Madan Lal Garg, Special Assistant of the said
bank had brought the original record and said that one
Inder Mohan PUri got one draft of Rs.26,000/- prepared
from his branch on 13.2.1989 in favour of the defendant
Raman Khanna and the said bank draft was bearing
no.597008 and proved the photo copy thereof as Ex.PW-
2/1. In view of this statement being almost unchallenged
on cross-examination, I find that it was Inder Mohan Puri
who got the said bank draft prepared in the bak and the
person who got bank draft prepared in the bank had paid
the said amount. Therefore by the testimony of PW-2it was
Inder Mohan Puri, who paid the amount of Rs.26,000/- to
the bank. There is no evidence on record either from
statements PW-1 or PW-2 or Inder Mohan Puri who could
not be produced and examined, that the said amount was
paid by Tilak Raj on that date to Inder Mohan Puri.
Therefore in the absence of any statement being on record
that the plaintiff Tilak Raj had paid the said amount to
Inder Mohan Puri who was directed to get the bank draft
prepared, I find that the plaintiff bitterly failed to prove the
fact that he made the payment of Rs.26,000/- to the bank
for preparing the said bank draft and in those
circumstances it has been proved that Inder Mohan Puri
paid the said amount for the said draft. Accordingly,
payment has been proved by the testimonies of these
witnesses in the name of Inder Mohan Puri since he had
applied in the bank for preparing the draft and paid the
amount in that regard.
RFA No.28/2001 & RFA No.45/2001 Page 3 of 6
15. There is no evidence on record from the statement of
Tialk Raj that he had handed over the cash of Rs.26,000/-
to Inder Mohan Puri on any date or on 13.2.89 to get the
bank draft prepared. Therefore, I find that the plaintiff
bitterly failed to prove the payment to the defendant in his
own name. Once the payment has been proved by the
said bank draft and the said bank draft has been got
prepared by Inder Mohan Puri, I find that it was Inder
Mohan Puri who paid the said amount to the defendant.
That being so, I find that the plaintiff bitterly failed to prove
the payment of the loan of Rs.26,000/- to the defendant in
his own name. That being so. I find that the is not entitled
to recover the said amount, unless the suit was filed in the
name of Inder Mohan Puri or suit was filed by Tilak Raj
himself as attorney of Inder Mohan Puri. Inder Mohan Puri
was alive when the suit was filed. Therefore, it was Inder
Mohan Puri who could file the suit against the defendant to
recover the said amount and plaintiff Tilak Raj was having
no right, title or interest to file the suit against the
defendant to recover the said amount. Accordingly, I find
that the plaintiff bitterly failed to prove his entitlement to
recover any amount from the defendant. So this issue
stands decided in favour of the defendant and against the
plaintiff. “
5. I do not find any illegality and perversity in the aforesaid findings
and conclusions of the Trial court. The appellant has admitted in his cross-
examination that he did not have any agreement or pro-note evidencing the
factum of granting of loan by him to the respondent/defendant. Admittedly,
the monies were paid not by the appellant/plaintiff to the
respondent/defendant but by Sh. Inder Mohan Puri, the son of the appellant
by means of a bank draft prepared from the bank account of Inder Mohan
Puri. Inder Mohan Puri was not arrayed as a plaintiff in the suit. He also did
not come into the witness box to depose in favour of his
father/appellant/plaintiff. The Trial Court has therefore rightly held that the
RFA No.28/2001 & RFA No.45/2001 Page 4 of 6
suit was liable to be dismissed.
6. This Court is not entitled to interfere in appeal merely because
two views are possible, unless the view taken by the Trial court is perverse
or leads to gross injustice. I do not find any of these elements exists for
upsetting the impugned judgment and decree. The appeal is therefore
dismissed leaving the parties to bear their own costs. The Trial Court
Record be sent back.
JANUARY 31, 2011 VALMIKI J. MEHTA, J.
ak
RFA No.45/2001
rd
1. The matter is on Regular Board of this court since 3 January,
2011. Today, it is an effective item no.7 on the Regular Board. It is 2.45
pm. No one appears for the appellant. I have therefore perused the record
and am proceeding to dispose of the appeal.
2. The only difference between the facts of this appeal and the
facts of RFA No.28/2001 is that in the present case, the loan was said to be
of Rs.40,000/-. The suit for recovery was for Rs.56,800/-. The
respondent/defendant additionally contended in this suit in his written
statement that Inder Mohan puri had received the amount of Rs.40,000/- by
bank draft and Rs.49,000/- in cash , i.e. Rs.89,000/- in total. The Trial Court
has on the same grounds as dealt with in RFA No.28/2001, and which equally
RFA No.28/2001 & RFA No.45/2001 Page 5 of 6
apply in the present appeal, dismissed the suit for recovery. This appeal is
therefore misconceived and is accordingly dismissed leaving the parties to
bear their own costs. The Trial Court Record be sent back.
JANUARY 31, 2011 VALMIKI J. MEHTA, J.
ak
RFA No.28/2001 & RFA No.45/2001 Page 6 of 6