Dheeraj Kumar @ Dhiraj Khatri vs Sanjeev & Anr.
- Court
- Delhi High Court
$~58
* IN THE HIGH COURT OF DELHI AT NEW DELHI
st
% Date of decision: 31 August, 2026
# CNR No. DLHC010403712026
+ RFA 911/2026, CM APPL.58020/2026
DHEERAJ KUMAR @ DHIRAJ KHATRI
S/o lt. Sh. Sita Ram,
R/o - X-33, Budh Vihar – Phase – II,
New Delhi – 110086
.....Appellant
Through: Mr. Aayush Agarwala, Mr. Vipul
Singh, Advocates with Appellant
through VC
versus
1. SANJEEV
S/o lt. Sh. Sita Ram,
R/o Village, Ramala PO Ramala
The. Baraut, Dist. Bagpat Uttar
Pradesh - 250623
2. BITTOO
S/o lt. Sh. Sita Ram,
R/o - X-33, Budh Vihar – Phase – II,
New Delhi – 110086
.....Respondents
Through: None
CORAM:
HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA
J U D G M E N T (oral)
CM APPL. 58019/2026 (Exemption)
1. Exemption allowed, subject to all just exceptions.
2. The Application stands disposed of.
Signature Not Verified
RFA 911/2026 Page 1 of 18
Digitally Signed By:ANIL
KUMAR BHATT
Signing Date:09.09.2026
18:35:59
CM APPL.58022/2026
3. Application under Section 5 of Limitation Act, 1963 has been filed on
behalf of the Appellant seeking condonation of delay of 6 days in filing the
present Appeal.
4. For the reasons stated in the Application, the delay is condoned.
5. The Application stands disposed of.
RFA 911/2026:
6. The present Regular First Appeal under Section 96 read with Section
151 and Order XLI Rule 1 of the Code of Civil Procedure, 1908 (hereinafter
referred to as the “CPC”) has been preferred against the Judgment and
Decree dated 12.05.2026, whereby CS DJ No.61/2021 filed by the Plaintiff
for recovery of Rs.7,07,550/- along with pendente lite and future interest @
12% per annum, was dismissed.
7. The facts in brief, as stated in the Plaint, are that Defendant Nos.1
and 2, Sanjeev and Bittoo, are the real brothers of the Plaintiff, Dheeraj
Kumar @ Dhiraj Khatri, and the parties shared good cordial relationship.
The Defendants intended to purchase Property bearing No.F-1/37,
admeasuring 25 sq. yds., situated in Khasra No.55/18, Village Rithala,
Sharma Colony, Budh Vihar, Phase-II, Delhi, from its erstwhile owner,
Surender Kumar, for a total sale consideration of Rs.9,80,000/-. An
Agreement to Sell dated 04.02.2018 was accordingly, executed between the
Defendants and the seller.
8. The Plaintiff remained present throughout the negotiations pertaining
to the Agreement to Sell, and also was a witness to the same. A sum of
Rs.90,000/- was paid as earnest money on 04.03.2018, out of which
Rs.70,000/- was paid by Defendant No.2, and Rs.20,000/- by Defendant
Signature Not Verified
RFA 911/2026 Page 2 of 18
Digitally Signed By:ANIL
KUMAR BHATT
Signing Date:09.09.2026
18:35:59
No.1. It was agreed that the balance sale consideration of Rs.8,90,000/-
would be paid by the Defendants, on or before 03.05.2018.
9. The Plaintiff claimed that the Defendants were unable to arrange the
entire balance sale consideration and, therefore, requested him for financial
assistance. He accordingly, agreed to advance a sum of Rs.5,30,000/- as a
friendly loan, on an interest @ 12% per annum w.e.f. 15.03.2018.
10. In furtherance thereof, the Plaintiff withdrew a sum of Rs.5,30,000/-
on 14.03.2018, from the joint account maintained by him with Smt. Poonam,
wife of Defendant No.2, at Canara Bank, Pitampura, Delhi. Thereafter, the
said amount in cash, was handed over to the Defendants.
11. The Plaintiff further claimed that he had transferred substantial
amounts into the aforesaid Canara Bank account, from his separate account
maintained with Allahabad Bank, Rohini, Delhi prior to 14.03.2018. Though
the Canara Bank account was jointly held by the Plaintiff and Smt. Poonam,
wife of Defendant No.2, Bitto, but it was asserted that the entire amount
lying therein, belonged to the Plaintiff as Smt. Poonam had not made any
contribution to the said account.
12. The Plaintiff explained that the joint account with Smt. Poonam, had
been opened for the purpose of receiving the compensation amount arising
out of Smt. Poonam‟s Motor Accident Claim . In terms of a settlement
between the Plaintiff, Smt. Poonam and Defendant No.2, the Plaintiff was
entitled to receive a part of the compensation. However, after receipt of the
compensation, Defendant No.2 and Smt. Poonam turned mala fide and did
not make the payment, contemplated in terms of the said settlement. A
separate Suit for recovery in respect thereof, has already been instituted by
the Plaintiff and is pending trial.
Signature Not Verified
RFA 911/2026 Page 3 of 18
Digitally Signed By:ANIL
KUMAR BHATT
Signing Date:09.09.2026
18:35:59
13. The Plaintiff had also instituted another Suit against the Defendants
and his other brothers in December, 2020 , in respect of Property bearing
No.X-33, Budh Vihar, Phase-II, Delhi-110086, which is also pending
adjudication. The present Suit, however, is independent of the aforesaid two
proceedings and has nothing to do with them.
14. For completing the purchase of the property, the Defendants utilised
the friendly loan of Rs.5,30,000/- advanced by the Plaintiff and arranged the
remaining amount from their own resources. The sale documents were
thereafter, executed in favour of the Defendants on 16.03.2018 and physical
possession of the property was handed over to them.
15. At the time of purchase, the property consisted of one built-up room
on the Ground Floor and a bathroom and toilet on the First Floor. The
property was thereafter, let out and an electricity connection was also
obtained in respect thereof. Subsequently, the existing construction was
demolished and a fresh construction upto two-and-a-half floors was raised in
October-November, 2020. The property continues to remain in possession of
the Defendants.
16. The Defendants failed to repay the friendly loan of Rs.5,30,000/-
along with interest @ 12% per annum, despite repeated requests and
demands.
17. Consequently, the Plaintiff instituted the Suit for recovery of
Rs.7,07,550/- along with pendente lite and future interest @ 12% per
annum.
18. Defendant No.2, Bitto, in his Written Statement , took the
preliminary objections that the Suit had been filed only to harass the
Signature Not Verified
RFA 911/2026 Page 4 of 18
Digitally Signed By:ANIL
KUMAR BHATT
Signing Date:09.09.2026
18:35:59
Defendants, material facts had been concealed and no cause of action had
arisen in favour of the Plaintiff.
19. On merits, the relationship between the parties as real brothers, was
admitted. However, it was asserted that relations had become strained owing
to a family dispute arising from the alleged misbehaviour and use of abusive
language by the Plaintiff towards his brothers on 05.11.2017, leading to a
Complaint which was lodged against him, at P.S. Vijay Vihar, Delhi.
20. Defendant No.2 explained that his wife, Smt. Poonam, had met with
a road accident on 05.10.2010 in respect of which FIR No.136/2010 under
Sections 279/338 IPC was registered on 06.10.2010 at P.S. Bhalswa
Dairy.
21. She sustained grievous injuries, including a crush injury to her right
hand, which was crushed by the offending tempo. She underwent treatment
at ESI Hospital, Rohini, Jaipur Golden Hospital. She was thereafter,
transferred to Hindu Rao Hospital, Delhi because of her serious condition.
The De tailed Accident Report (DAR) was filed before the learned MACT,
Rohini, which vide Judgment dated 21.02.2018, granted compensation of
Rs.15,60,031/- including interest, in her favour.
22. After receipt of the compensation amount, the Plaintiff started
demanding 50% thereof from Defendant No.2 and Smt. Poonam and
threatened to implicate them in false and frivolous civil and criminal
proceedings. Two separate Suits had also been instituted by the Plaintiff
against the Defendants.
23. The Settlement Agreement dated 17.02.2011 was denied, as being
forged and fabricated . It was stated that the stamp paper on which the said
document had been prepared, was purchased only on 02.04.2018, and the
Signature Not Verified
RFA 911/2026 Page 5 of 18
Digitally Signed By:ANIL
KUMAR BHATT
Signing Date:09.09.2026
18:35:59
signatures of Smt. Poonam appearing thereon, were not genuine. It was
further stated that the document did not bear the attestation of any witness or
competent authority.
24. In this regard, Smt. Poonam lodged written complaints dated
25.01.2022 and 26.01.2022 with the Lieutenant Governor, Commissioner of
Police, DCP, North-West District and SHO, P.S. Vijay Vihar.
25. The defendant No.2 asserted that the Plaintiff had obtained the
signatures of Smt. Poonam on a blank cheque and thereafter, filled in an
amount of Rs.5,30,000/- and withdrew the said amount from the joint bank
account. After the withdrawal, the Plaintiff went to his native village for
construction of his house. It was further stated that since 2018, the Plaintiff
had been continuously harassing and threatening the Defendants for
extorting money from them.
26. On merits , the Plaintiff was stated to have been regularly threatening
the Defendants with dire consequences and dispossession from their
residential Property bearing No.X-33, Budh Vihar, Delhi.
27. It was specifically denied that any friendly loan of Rs.5,30,000/- had
been advanced by the Plaintiff to the Defendants, for purchase of the
property at Budh Vihar. The property had been jointly purchased by
Defendant Nos.1 and 2 from its erstwhile owner, Surender Kumar, for a total
sale consideration of Rs.1,90,000/-, to which each Defendant had
contributed Rs.95,000/-.
28. It was thus, denied that any amount of Rs.5,30,000/- had been
borrowed from the Plaintiff, towards the payment of sale consideration.
29. The Defendants further maintained that the amounts lying in the
joint Canara Bank account, belonged to Defendant No.2 and Smt. Poonam
Signature Not Verified
RFA 911/2026 Page 6 of 18
Digitally Signed By:ANIL
KUMAR BHATT
Signing Date:09.09.2026
18:35:59
and had been deposited by them from time to time. Some of the deposits
were supported by deposit slips placed on record, while the remaining
deposit slips were stated to have been misplaced.
30. It was thus, denied that the amount of Rs.5,30,000/- withdrawn from
the joint account, represented any loan advanced by the Plaintiff to the
Defendants. It was stated that the Suit is without merits and liable to be
rejected.
31. The Plaintiff, in the Replication, reaffirmed the averments made in
the Plaint and denied the allegations contained in the Written Statement.
32. The issues of the pleadings , were framed on 27.07.2022, as under:-
“1. Whether the plaintiff has concealed material facts
from the court? OPD2
2. Whether the plaintiff is entitled to a decree of money
against the defendants, as prayed for? OPP
3. Relief.”
33. The Plaintiff, Dheeraj Kumar examined himself as PW-1 and
tendered his Affidavit of Evidence as Ex.PW1/A. He relied upon his
Aadhaar Card as Ex.PW1/1, Passbook of his Allahabad Bank account as
Ex.PW1/2 and Passbook of the Canara Bank account as Ex.PW1/3 and
photocopy of the Agreement to Sell dated 04.02.2018 was Mark „B‟.
34. PW-2, Lokesh, Officer Scale-I, Canara Bank, produced the
certified statement of the joint account maintained in the names of Smt.
Poonam and Dheeraj Kumar for the period from 01.05.2011 to 31.12.2018
as Ex.PW2/1, along with the Certificate under Section 2A of the Bankers‟
Books Evidence Act as Ex.PW2/2. His testimony, however, remained
incomplete.
35. PW-3, Surendra Prasad, Chief Manager, Canara Bank , produced
Signature Not Verified
RFA 911/2026 Page 7 of 18
Digitally Signed By:ANIL
KUMAR BHATT
Signing Date:09.09.2026
18:35:59
the certified statement of the aforesaid joint account for the period from
01.05.2011 to 30.09.2018 as Ex.PW3/A, along with the Certificate under
Section 65B of the Indian Evidence Act as Ex.PW3/B.
36. PW-4, Anil Bhatt, Manager, Canara Bank , produced the certified
statement of the account maintained in the name of Starlite Cooperative
Group Housing Society, for the period from 31.05.2013 to 31.12.2018 as
Ex.PW4/1. The statement reflected certain debit entries in the name of
Dheeraj Kumar in respect of cheques presented by him.
37. The Defendants examined Defendant No.2, Bitto as DW2W1 , who
tendered his Affidavit of Evidence as Ex.D2W1/A and deposed in terms of
the defence taken in the Written Statement. He relied upon the complaint
dated 05.11.2017 as Ex.D2W1/1, the Disability Certificate of Smt. Poonam
as Mark „A‟ , Shapath Patra/Vachan Patra as Mark „B‟ (colly.) , Agreement
dated March, 2018 as Mark „C‟ , Legal Notice dated 06.06.2018 as
Ex.D2W1/2 and the original cash deposit slips pertaining to the Canara
Bank account as Ex.D2W1/3.
38. The learned District Judge , on appreciation of the evidence, held
that the Plaintiff had failed to prove the advancement of the alleged friendly
loan of Rs.5,30,000/-, to the Defendants. There was neither any Loan
Agreement nor any Receipt or acknowledgment, evidencing the alleged
transaction. The two persons, namely, Monu and Mukesh, in whose presence
the cash amount was stated to have been handed over to the Defendants,
were also not examined.
39. The learned District Judge further observed the Plaintiff failed to
establish that the amounts lying in the said joint account, belonged
exclusively to him or that Smt. Poonam had made no contribution thereto.
Signature Not Verified
RFA 911/2026 Page 8 of 18
Digitally Signed By:ANIL
KUMAR BHATT
Signing Date:09.09.2026
18:35:59
40. The plea that the Plaintiff had been transferring money into the joint
Canara Bank account after withdrawing the same from his separate
Allahabad Bank account, was also not proved. Neither the relevant bank
statement of the Allahabad Bank account nor any other documentary
evidence establishing such transfers, was proved on record.
41. It was thus, held that the Plaintiff had failed to prove that the sum of
Rs.5,30,000/- withdrawn from the joint account belonged exclusively to him
that that the said amount had thereafter, been advanced to the Defendants as
a loan. Consequently, the Suit was dismissed .
42. Aggrieved thereby, the Plaintiff has preferred the present Regular
First Appeal.
43. The grounds of challeng e are that the learned District Judge failed
to appreciate the material history of transactions between the Plaintiff, the
Defendants and Smt. Poonam, wife of Defendant No.2.
44. The joint Canara Bank account had been opened solely for
facilitating receipt of the compensation payable to Smt. Poonam in respect
of her Motor Accident Claim and for repayment of the expenses incurred by
the Plaintiff, towards her treatment. The arrangement between the parties
and their subsequent conduct, clearly reflects an acknowledgment of liability
towards the Plaintiff. However, after receipt of the compensation amount,
Defendant No.2 and Smt. Poonam refused to make the agreed payment, to
repay the expenses incurred by the Plaintiff towards her treatment.
45. It is further contended that the learned District Judge failed to
appreciate the source and ownership of the amounts lying in the joint
Canara Bank account. Defendant No.2 failed to produce any cogent oral or
documentary evidence, to establish that he was earning Rs.42,000/- to
Signature Not Verified
RFA 911/2026 Page 9 of 18
Digitally Signed By:ANIL
KUMAR BHATT
Signing Date:09.09.2026
18:35:59
Rs.45,000/- per month or that he or Smt. Poonam had been regularly
depositing substantial amounts, into the said Joint Account.
46. On the contrary, the Plaintiff maintained that the amounts lying in
the joint account, represented his savings and had been deposited by him
from time to time, including by transfer of amounts withdrawn from his
separate account maintained with Allahabad Bank.
47. The testimony of PW-3, Surendra Prasad, Chief Manager, Canara
Bank, was also not appreciated in the correct perspective. PW-3 had proved
the statement of the Joint Account and deposed that Smt. Poonam was the
primary Account Holder, while the Plaintiff was the secondary Account
Holder, and that either account holder was authorized to operate the Account
and withdraw amounts therefrom, which led support to the case of the
Plaintiff that he had infact, extended financial assistance to Defendant No. 2
and his wife.
48. It is further contended that the learned District Judge erroneously
treated the non-examination of the concerned official from Allahabad Bank
and the non-production of deposit slips, as fatal to the case of the Plaintiff.
The absence of such evidence, by itself, could not have led to rejection of
the Plaintiff‟s case regarding the source of the funds lying in the joint
Canara Bank account.
49. The learned District Judge also failed to appreciate the Plaintiff‟s
case that the Defendants had agreed to purchase the property for a total sale
consideration of Rs.9,80,000/- under the Agreement to Sell dated
04.03.2018 and being unable to arrange the entire balance consideration, had
borrowed Rs.5,30,000/- from the Plaintiff as a friendly loan. It is further
contended that the Plaintiff and the Defendants are real brothers and, owing
Signature Not Verified
RFA 911/2026 Page 10 of 18
Digitally Signed By:ANIL
KUMAR BHATT
Signing Date:09.09.2026
18:35:59
to their close blood relationship and the trust subsisting between them at the
relevant time, no written Loan Agreement or Receipt, was executed. The
absence of a written document evidencing the friendly loan could not,
therefore, have been treated as determinative against the Plaintiff.
50. The Defendants also failed to dislodge the surrounding
circumstances relied upon by the Plaintiff, in support of the loan
transaction. It is contended that the learned District Judge placed an unduly
onerous burden upon the Plaintiff, by insisting upon documentary proof of
each stage of the transaction, despite the admitted close relationship between
the parties.
51. Furthermore, the Plaintiff had issued a Legal Notice dated
06.06.2018 to Defendant No.2 demanding repayment, which admittedly
remained unreplied. It is contended that this circumstance ought to have
been considered, while appreciating the rival versions of the parties.
52. It is also contended that Defendant No.2 failed to prove that the
amounts lying in the joint Canara Bank Account, had been deposited by him
or Smt. Poonam. On the other hand, PW-4 had proved debit entries in the
name of the Plaintiff in respect of cheques presented by him. It was thus,
submitted that the evidence on record had not been appreciated in its correct
perspective and that the impugned Judgment and Decree are liable to be set
aside.
Submissions heard and records perused.
53. The controversy in the present Appeal, lies in a narrow compass. The
Plaintiff and the two Defendants are real brothers and shared cordial
relations, till 2018. The Plaintiff sought recovery of Rs.7,07,550/- on the
premise that he had advanced a friendly loan of Rs.5,30,000/- to the
Signature Not Verified
RFA 911/2026 Page 11 of 18
Digitally Signed By:ANIL
KUMAR BHATT
Signing Date:09.09.2026
18:35:59
Defendants for purchase of the property at Budh Vihar, which despite
repeated demands, had not been repaid.
54. The Plaintiff sought to connect the alleged loan with the purchase
transaction by claiming that the property had been agreed to be purchased
for Rs.9,80,000/- and, after payment of earnest money of Rs.90,000/-, a
balance sale consideration of Rs.8,90,000/- remained payable. Since the
Defendants were unable to arrange the entire balance amount, a sum of
Rs.5,30,000/- was stated to have been advanced by the Plaintiff, as a
friendly loan carrying interest @ 12% per annum.
55. The Defendants have, however, denied having taken any loan from
the Plaintiff. Their defence is that the property was purchased for
Rs.1,90,000/-, towards which Defendant Nos.1 and 2 contributed
Rs.95,000/- each, from their own resources.
56. The Plaintiff had produced the photocopy of the Agreement to Sell
dated 04.02.2018, Mark „B‟, wherein the total sale consideration was
reflected as Rs.9,80,000/-. On the other hand, the Agreement to Sell
Ex.D2W1/P2 produced during the cross-examination of Defendant No.2,
reflected the sale consideration as Rs.1,90,000/-. Defendant No.2 also
deposed that the said consideration had been contributed equally by the two
Defendants by paying Rs.95,000/- each towards purchase of the property.
57. Thus, while the Agreement to Sell Ex.D2W1/P2 as proved in
evidence, reflects the sale consideration as Rs.1,90,000/-, however, Mark
„B‟ relied upon by the Plaintiff reflects the sale consideration as
Rs.9,80,000/-. Even if the case of the Plaintiff is accepted for the sake of
argument that the agreed sale consideration was Rs.9,80,000/- and, after
payment of Rs.90,000/- as earnest money, a balance amount of
Signature Not Verified
RFA 911/2026 Page 12 of 18
Digitally Signed By:ANIL
KUMAR BHATT
Signing Date:09.09.2026
18:35:59
Rs.8,90,000/- remained payable, the same would only establish, at best, that
the Defendants required funds for completing the purchase. The material
question which was still required to be proved was whether towards such
requirement, the Plaintiff had in fact advanced a sum of Rs.5,30,000/- to the
Defendants, as a friendly loan.
58. Be that as it may, the Plaintiff had explained that he had withdrawn
Rs.5,30,000/- from the joint account of himself and Smt. Poonam, wife of
Defendant No.2, and thereafter, handed over the cash to Defendant No. 2 to
be repaid at an interest of 12% p.a. w.e.f. 15.03.2018.
59. Admittedly, no Loan Agreement, Receipt, acknowledgment or other
contemporaneous document evidencing advancement of Rs.5,30,000/- to the
Defendants, was executed. The fact that the parties are real brothers may
explain the absence of a formal Loan Agreement; however, the close
relationship between the parties cannot dispense with the requirement of
proving the advancement of the loan itself.
60. The Plaintiff had specifically pleaded that the sum of Rs.5,30,000/-
was handed over in cash to the Defendants, in the presence of Monu and
Mukesh. These two witnesses were, therefore, material witnesses to the
actual advancement of the alleged loan. Neither Monu nor Mukesh was
examined during the trial. Their non-examination assumes significance since
there is otherwise no documentary acknowledgment of the alleged cash
transaction.
61. Insofar as the withdrawal of Rs.5,30,000/- is concerned, both sides
admit that the amount was withdrawn by the Plaintiff from the joint Canara
Bank account, maintained with Smt. Poonam. Their versions, however,
diverge thereafter. The Plaintiff claims that the amount belonged exclusively
Signature Not Verified
RFA 911/2026 Page 13 of 18
Digitally Signed By:ANIL
KUMAR BHATT
Signing Date:09.09.2026
18:35:59
to him and was handed over to the Defendants as a friendly loan. The
Defendants, on the other hand, claim that the Plaintiff had obtained the
signatures of Smt. Poonam on a blank cheque, used the same to withdraw
Rs.5,30,000/- from the Joint Account and never advanced the said amount to
them as a loan.
62. The crucial question, therefore, is whether the sum of Rs.5,30,000/-
withdrawn from the joint account, represented the exclusive funds of the
Plaintiff. Admittedly, the account was jointly maintained in the names of the
Plaintiff and Smt. Poonam and either account holder was authorised to
operate the same. The amounts in the Joint Account are held jointly by the
joint account holders and both have an equal right on all the amounts lying
therein, unless the either party is able to establish that there was any
understanding that the amounts so deposited in the account, would belong
exclusively to one joint holder.
63. The mere authority of the Plaintiff to withdraw money from the joint
account would not, by itself, establish his exclusive ownership over the
amount withdrawn. The Plaintiff was, therefore, required to establish his
plea that the amount of Rs.5,30,000/- represented his own funds to the
exclusion of Smt. Poonam.
64. His case was that though the Canara Bank account was jointly held
with Smt. Poonam, the amounts lying therein belonged exclusively to him,
as he had been transferring his savings into the said account, after
withdrawing amounts from his separate Allahabad Bank account. This
assertion, however, was required to be established by evidence showing the
flow of funds from the Plaintiff's separate account, into the joint Canara
Bank account.
Signature Not Verified
RFA 911/2026 Page 14 of 18
Digitally Signed By:ANIL
KUMAR BHATT
Signing Date:09.09.2026
18:35:59
65. Though the Passbook of the Allahabad Bank account was produced
as Ex.PW1/2, the Plaintiff had not specified the dates and amounts of the
withdrawals allegedly made from the said account and the corresponding
deposits made into the joint Canara Bank account. No deposit slips
evidencing such deposits were also produced. The learned District Judge,
therefore, held that the Plaintiff had failed to establish that the sum of
Rs.5,30,000/- lying in the joint account, represented funds belonging
exclusively to him.
66. The explanation regarding the opening of the joint Canara Bank
account for receipt of the MACT compensation payable to Smt. Poonam,
also does not establish the alleged loan transaction.
67. The Plaintiff claimed that he had incurred expenses towards the
treatment of Smt. Poonam following her accident in the year 2010 and, in
terms of a Settlement between the parties, was entitled to receive 50% of the
compensation amount. Though, after receiving the compensation amount of
Rs.15,60,031/- including interest in her favour, in the year 2018, the
Defendants denied to share the compensation amount in terms of the
Settlement. The said arrangement has been disputed by Defendant No.2 and
Smt. Poonam and is already the subject matter of separate Suit between the
parties.
68. The explanation regarding the opening of the joint Canara Bank
account for receipt of the MACT compensation payable to Smt. Poonam,
also does not prove the loan transaction. The Plaintiff had explained that the
Joint Bank Account with Smt. Poonam had been opened way back in 2013
in order to facilitate deposit of the compensation amount which he was to
get in due course, on which the Plaintiff had a 50% right, in terms of an
Signature Not Verified
RFA 911/2026 Page 15 of 18
Digitally Signed By:ANIL
KUMAR BHATT
Signing Date:09.09.2026
18:35:59
Agreement between them.
69. First and foremost, the compensation has come in the account only
in 2018, while the account was opened in 2013. If it was intended solely for
putting the compensation amount in the account, there was no occasion for
the Plaintiff to have deposited money in this Joint Account, after
withdrawing money from his own Allahabad Bank.
70. Much emphasis has been placed upon the failure of Defendant No.2
to prove that he was earning Rs.42,000/- to Rs.45,000/- per month or that he
and Smt. Poonam had been regularly making substantial deposits into the
Joint Account. It is true that Defendant No.2 did not produce documentary
evidence of his stated income and the deposit slips relied upon by him
pertained to the year 2014. However, the weakness in the defence of the
Defendants, cannot discharge the Plaintiff of the primary burden of proving
the advancement of the loan on which his Suit is founded.
71. The second aspect which emerges is that, even if it is believed that
the Plaintiff had withdrawn Rs.5,30,000/- from the joint account and
thereafter, handed over the said amount to the Defendants, it cannot be
overlooked that the money had been withdrawn from a joint account, over
which both the account holders had a right. In effect, the Plaintiff withdrew
the amount from an account jointly held with Smt. Poonam and handed it
over to Defendant No.2, who is her husband.
72. In these circumstances, unless the Plaintiff was able to establish that
the sum of Rs.5,30,000/- belonged exclusively to him, to the exclusion of
Smt. Poonam, the mere handing over of the said amount to Defendant No.2
could not, by itself, establish that the Plaintiff had advanced his own funds
to the Defendants by way of a loan.
Signature Not Verified
RFA 911/2026 Page 16 of 18
Digitally Signed By:ANIL
KUMAR BHATT
Signing Date:09.09.2026
18:35:59
73. It can also not be overlooked and the Cheque of Rs. Rs.5,30,000/- as
per the Defendants, was signed by Smt. Poonam, but money was withdrawn
through the cheque by the Plaintiff, who had gone with the cash and for
construction of his house, in the native village.
CM APPL.58021/2026:
74. An Application under Section 151 of the Code of Civil Procedure,
1908 ( hereinafter referred to as “CPC”) has been filed on behalf of the
Plaintiff/ Appellant seeking permission to examine two witnesses, namely,
Monu and Mukesh, in whose presence the alleged cash loan of
Rs.5,30,000/- was stated to have been advanced to the Defendants.
75. The Plaintiff/Appellant also seeks to examine Surendra Kumar,
from whom the property had been purchased by the Defendants, to establish
that the sale consideration was Rs.9,80,000/- and not Rs.1,90,000/-, as
claimed by the Defendants.
76. The permission is also sought to examine the concerned official(s)
from Allahabad Bank, to prove the withdrawals made from his account,
which according to him, were subsequently deposited in the joint account
maintained with Canara Bank.
77. Order XLI Rule 27 CPC permits additional evidence at the appellate
stage, but the conditions to be satisfied are that notwithstanding the exercise
of due diligence, such evidence was not within his knowledge or could not,
after the exercise of due diligence, be produced by him at the time when the
decree appealed against was passed, or the Appellate Court requires any
document to be produced or any witness to be examined to enable it to
pronounce judgment, or for any other substantial cause.
78. The witnesses are now sought to be examined, essentially are on
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Digitally Signed By:ANIL
KUMAR BHATT
Signing Date:09.09.2026
18:35:59
account of the adverse inference drawn by the learned Trial Court for their
non-examination. These witnesses were well within the knowledge of the
Plaintiff, but had not been examined by him. It is only when the adverse
observations have been made by the Court, while appreciating the evidence,
that this Application has been filed. The present Application is, in effect, an
endeavour to fill the gaps and lacunae in the evidence, which were noted by
the learned Trial Court, while appreciating the evidence leading to dismissal
of the Suit.
79. There is, therefore, no merit in the Application, which is hereby,
dismissed.
Conclusion:
80. The learned District Judge had rightly observed that there was no
document whatsoever or cogent evidence from where it could be inferred
that indeed a loan of Rs.5,30,000/- had been given by the Plaintiff to the
Defendants.
81. The Suit of the Plaintiff has been rightly dismissed by observing that
he failed to prove having given any loan to the Defendants.
82. There is no merit in the Appeal, which is hereby, dismissed .
Pending Applications also disposed of, accordingly.
(NEENA BANSAL KRISHNA)
JUDGE
AUGUST 31, 2026
N
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Digitally Signed By:ANIL
KUMAR BHATT
Signing Date:09.09.2026
18:35:59