1. This is defendant™s Civil 1st Appeal against judgment of learned First Additional District judge, Jammu who vide his judgment dated 28.02.2003 decreed the suit of the plaintiff-respondent for recovery of Rs 1,09,000/- with 9% p.a. interest till realization. 2. The case set up by the plaintiff-respondent in the plaint is that defendant-appellant approached him in the year 1985 for advancement of loan of Rs.50,000/- and promised to repay the same alongwith interest @ 18% per annum. The plaintiff advanced the loan amount to defendant at Jammu and defendant acknowledge the same vide his letter dated 17.10.1985 addressed to the plaintiff. The plaintiff repeatedly demanded his money back but the defendant refused to pay, hence the suit was filed. 3. The defendant contested the suit and controverted the allegations. The defendant denied borrowing of money from the plaintiff and pleaded that he had never visited at Jammu after 14.11.1985. He further pleaded that defendant was working with Chahal Engineering Company from May to November 1984 as a Project Manager at Salal Hydroelectric Project. He met with Baldev Sharma plaintiff and Mr. Suri at the residence of Mr. Kochhar who was also working with National Hydroelectric Project, Jyotipuram. The defendant left his services and went to Delhi and plaintiff and Mr. Suri suggested the defendant to start some business as a joint venture. The defendant was convinced about the viability of the T.V.Project and informed the plaintiff and Mr. Suri to come over to Delhi for meetings and after one or two meetings in the month of Feb./March, 1985, they decided to establish a private limited company. M/s Jai Devices Private Ltd. Company was already registered of which Mr.K.L.Narang was a Director. So it was decided to utilize this company for T.V.Project. The plaintiff and Mr. Suri promised to contribute bulk of the finance required for the Project. The defendant informed about the progress of the Project on telephone and also in writing. 4. On the pleadings of the parties, following issues were framed; - 1. Whether this court has no jurisdiction to try the suit? OPD 2. Whether the amount of Rs.50,000/- as loan was taken by the defendant from the plaintiff? OPP 3. If issue No. 2 is proved in affirmative, what is the rate of interest which the defendant is liable to pay on the loan amount? OPP 4. Whether this court has no jurisdiction to try the suit? OPD 2. Whether the amount of Rs.50,000/- as loan was taken by the defendant from the plaintiff? OPP 3. If issue No. 2 is proved in affirmative, what is the rate of interest which the defendant is liable to pay on the loan amount? OPP 4. At last to what relief the plaintiff is entitled.� Learned trial court decided all the issues in favour of the plaintiff and decreed the suit, aggrieved by which the present appeal has been preferred. 5. I have heard Mr. Sharma learned counsel for the appellant and perused the record carefully. The sole point which is to be determined in this case is whether the plaintiff-respondent had advanced a loan of Rs.50,000/- to the defendant. The plaintiff has not brought on record any document showing that the loan was advanced. The plaintiff has not demanded back the loan even though it was alleged that it was advanced in year 1985. Further it has not been mentioned in the plaint that in whose presence this amount of Rs.50,000/- was advanced nor there is any receipt of advance. The plaintiff for the first time demanded money through legal notice issued by Advocate, Shri Madan Baru on 21.02.1991 and suit was filed on 06.05.1991 i.e. after the delay of more than six years. The defendant in his written statement has pleaded as under: - ¦ Since defendant was coming to Delhi after quitting his job with Chahal Engineering. The plaintiff and Mr. Suri had suggested to start some business as a joint venture. They had known Mr. K.L.Narang earlier and discussed about a Colour T.V. Project. They wanted the defendant to meet Mr. Narang at Delhi to find out about the T.V.Project. After defendant arrived at Delhi, he met Mr. Narang in December 1984 for the first time. They met again two or three times in January, February 1985. The defendant was convinced about the viability of the T.V.Project and informed the plaintiff and Mr. Suri. They came over to Delhi and all had meeting together. After one or two more meetings in February, March 1985 it was decided that a Private Limited Company be formed. Jai Devices Private Limited Company was already registered of which Mr. K.L.Narang was a Director so it was decided to utilize this Company for T.V.Project. The plaintiff and Mr. Suri. They came over to Delhi and all had meeting together. After one or two more meetings in February, March 1985 it was decided that a Private Limited Company be formed. Jai Devices Private Limited Company was already registered of which Mr. K.L.Narang was a Director so it was decided to utilize this Company for T.V.Project. The plaintiff and Mr. Suri had promised to contribute bulk of the finances required for the project so long as defendant and Mr. K.L.Narang managed the project at Delhi. Some money was brought by Mr. Suri, his nephew™s the plaintiff and others, for which receipt were issued and proper accounts were maintained. Later during the year 1985 defendant was keeping the plaintiff informed about the progress of the project on phone and through letters. It is one of these letters which is being quoted, on which this case is framed. Mr. Baldev Sharma had never visited after 14th November 1984 the date he left Salal Project site for Delhi from Mr. Kochhar; s residence. This T.V.Project could not be activated mainly due to lack of finances. In August 1988 Mr. K.L.Narang suggested that Jai Devices Private Limited could be sold. The defendant resigned as Director in August 1988. Mr. Narang paid all the money received from various share holders. Defendant also received part of his investment in the company. Some money is still to be paid to him which defendant gave up as a bad debt¦� In paragraph No. 2 the defendant has further pleaded as under: - ¦ ¦ ¦ ¦ The defendant neither came to Jammu on 18.05.1985 nor borrowed any sum from the plaintiff nor question of borrowing Rs. 50,000/- without receipt does arise. It is denied that defendant received Rs.50,000/- from the plaintiff and agreed to pay interest at a rate of 18% p.a. The letter referred to in this para was pertaining to the account of Jai Devices Pvt. Ltd. of the expenses incurred in the project and asking the plaintiff to contribute the balance amount of his and others sharers in order to complete the project¦� 6. The perusal of the above paragraphs show that the defendant has set up a new case. The plaintiff had not filed rejoinder challenging the averments made in the aforesaid paragraphs. Once the defendant has set up a new case, the plaintiff could have challenged the same by filing rejoinder. The perusal of the above paragraphs show that the defendant has set up a new case. The plaintiff had not filed rejoinder challenging the averments made in the aforesaid paragraphs. Once the defendant has set up a new case, the plaintiff could have challenged the same by filing rejoinder. It is a settled proposition of law that when pleadings remain un-rebutted and unchallenged then the facts are deemed to have been admitted by the parties. 7. The case of the plaintiff is based on the letter written by the defendant-appellant on 17.10.1985 allegedly acknowledging the loan of Rs. 50,000/-. The learned Additional District Judge, Jammu had mis-read and mis-interpreted this letter, ignoring the fact that from the letter it is not proved that the plaintiff has advanced the loan to the defendant. It has not been denied by the defendant-appellant that he has not written a letter to Baldev Sharma marked as BS�. The relevant part of the letter reads as under: - Coming to the accounts/financial position. We have spent about Rs. 71,000/- including (50,000) given by you,. Main items of expenses are land Rs. 45,000/- Rs. 10,000/- booking for a Maruti Van, balance Rs. 11,000/- for miscellaneous expenses like honorarium, transport and other sundry expenses. Following is the break up of funds required by the Company immediately: - 1. Antenna Dies : Rs. 30,000/- 2. Models : Rs. 15,000/- 3. Instruments : Rs. 25,000/- 4. Building : Rs. 36,000/- plus 84,000 loan from Govt. 5. Misc. expenses : Rs. 24,000/- -------------------- : Rs. 1,20,000/- -------------------- Out of this the shares contribution by you amounting to Rs. 31,000/- may be sent by demand draft in the name of the Company. I am putting Rs. 15,000/- for self. You contribute for K.L. Narang, R. S. Taneja and S. Roy, yourself and Mrs. Pathi at the rate of Rs. 5000/- each and Suri brothers put Rs. 6000/-. Balance amount could be given in cash if you wish.� 8. At the hearing when it was pointed to the counsel for the plaintiff-respondent why the appellant had written a letter marked as BS to Baldev Sharma if Baldev Sharma has not invested money in Jai Devises Pvt. Ltd., he was unable to reply. The perusal of letter shows that plaintiff had invested Rs. 50,000/- to Jai Devises Pvt. Ltd. and never advanced loan to defendant. The perusal of letter shows that plaintiff had invested Rs. 50,000/- to Jai Devises Pvt. Ltd. and never advanced loan to defendant. If plaintiff has not invested money in the Company then on receipt of letter, the plaintiff must have written a letter to the defendant informing him that he has not invested the money in the company but he has given cash loan to the defendant. 9. The learned Additional District Judge has failed to appreciate the pleadings as well as evidence led by the parties. The defendant has admitted that he has received an amount of Rs. 50,000/- but the same is not acknowledging the debt. The learned Additional District Judge has picked up one word that the defendant has received an amount of Rs. 50,000/- without elaborating the point whether this was an investment in M/s Jai Devices Pvt. Ltd. by the plaintiff or it was a loan given to the defendant-appellant. The appellant has written a letter on the paper of Jai Devices Pvt. Ltd. The letter clearly indicates that an amount of Rs. 50,000/- was apportioned towards the shares of the plaintiff. It further makes it clear that the defendant has asked the plaintiff to send more money through demand draft. So from the letter, it establishes that this letter is not the acknowledgement of the loan rather this was a communication between the plaintiff and defendant with regard to investment made by the plaintiff in M/s Jai Devices Pvt. Ltd. 10. For the reasons mentioned above, I accept this appeal and set aside the judgment and decree dated 28.02.2003 and dismiss the suit of the plaintiff. The appellant is also entitled to costs of the appeal. The bank guarantee furnished by the appellant stands discharged. The parties to bear their own costs. Record be sent back to the court concerned. 21.07.2005 Mr. L.K. Sharma, Advocate for appellant. Judgment of 1st Addl. Distt. Judge, Jammu was set aside by this Bench vide order dated 05.05.2005. But in the last paragraph of the judgment, inadvertently it has been observed that parties shall bear their own costs, though the costs of the appeal were allowed.