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2010 DIGILAW 1173 (DEL)

OM PRAKASH v. PREM JEWELLERS

2010-11-11

INDERMEET KAUR

body2010
INDERMEET KAUR, J. 1. This second appeal has impugned the judgment and decree dated 10.04.2001 which had endorsed the finding of the Trial Judge dated 08.08.2000 thereby dismissing the suit of the plaintiff, Sh. Om Prakash. 2. Plaintiff had filed a suit for recovery of Rs. 38,4000/- against three defendants of which Rs. 20,000/- had been claimed as the principal amount; Rs. 14,400/- was the interest which was w.e.f 20.04.1993 to 19.04.1996 @ 24 % per annum; Rs. 4000/- had been claimed as notice charges. The case of the plaintiff was that he had advanced a loan of Rs. 20,000/- vide cheque no. 202196 dated 20.04.1993 to defendant no.1 through defendant no. 2 and on the asking of defendant no. 3. Amount was repayable with interest @ 24% per annum. Defendants utilized the amount for their business. The defendants failed to pay back the loan to the plaintiff. Hence, the present suit was filed. 3. Defendants denied the liability. It was stated that on 16.04.1993, plaintiff had taken a cash loan of Rs. 20,000/- from defendant no. 3 on assurance of its re-payment within 2/3 days. A cheque for Rs. 20,000/- in refund of the loan was according given by the plaintiff to defendant no. 3; this was a blank bearer cheque. Defendant no. 3 had a liability towards Sh. Anil Khattar; in consideration thereof he gave this bearer cheque of Rs. 20,000/- to his friend Sh. Anil Khattar. On the same day i.e. on 19.04.1993, Sh. Anil Khattar purchased one gold chain and one ring for a sum of Rs. 20,000/- from the shop of Defendant no. 2 (proprietor of Defendant no. 1, M/s. Prem Jewellers); Rs. 330.80/- which was in excess was paid by Sh. Anil Khattar for clearance of the said bill; the balance was paid by this cheque of Rs. 20,000/- . 4. Trial Judge had framed five issue which interalia reads as follows:- 1. Whether the plaintiff advanced loan of Rs. 20,000/- to defendant no. 1 through defendant no. 2 at the instance of defendant no. 3? OPP. 2. Whether the plaintiff issued a cheque for Rs. 20,000/- in favour of defendant No. 3 who delivered the said cheque to Sh. Anil Khattar who in turn purchased gold chain and gold ring from defendant no. 2 for a sum of Rs. 20,330/- and paisa 80 and paid Rs. 2 at the instance of defendant no. 3? OPP. 2. Whether the plaintiff issued a cheque for Rs. 20,000/- in favour of defendant No. 3 who delivered the said cheque to Sh. Anil Khattar who in turn purchased gold chain and gold ring from defendant no. 2 for a sum of Rs. 20,330/- and paisa 80 and paid Rs. 330.80 in cash and the qheque for Rs. 20,000/- issued by plaintiff to defendant no. 3 against the said purchase? OPD. 3. To what amount, if any, the plaintiff is entitled? OPP. 4. Whether the plaintiff is entitled to interest? If so, at what rate and for which period? OPP. 5. Relief. 5. Two witnesses were examined on behalf of the plaintiff; cheque was proved as Ex. PW 1/1. Four witnesses had come into the witness box on behalf of the defendants; the ledger accounts of Sh. Anil Khattar were proved in the version of DW-1; they are Ex. DW 1/3 and Ex. DW 1/4. Defendant no. 3 had come into the witness box as DW-2. He had reiterated the averment on oath. Sh. Anil Khattar has come into witness box as DW-4. 6. The Trial Judge on the basis of this oral and documentary evidence held that the version of the defendants appears to be more natural and trustworthy. The case of the plaintiff was disbelieved. It was dismissed. The impugned judgment dated 10.04.2001 had endorsed this finding of the Trial Judge. 7. This is a second appeal. It was admitted on 30.04.2004. On 28.10.2010 the following substantial question of law was formulated:- 1. Whether the findings in the impugned judgment dated 10.04.2001 qua the interpretation of the document Ex. PW-1/1 is a perverse finding. If so, its effect? 8. On behalf of the appellant, it has been urged that the findings in the impugned judgment are perverse and call for interference. It has been pointed out that issue no. 2 was the crucial issue of which the onus has been placed upon the defendant. The defendants have failed to discharge this onus. If so, its effect? 8. On behalf of the appellant, it has been urged that the findings in the impugned judgment are perverse and call for interference. It has been pointed out that issue no. 2 was the crucial issue of which the onus has been placed upon the defendant. The defendants have failed to discharge this onus. Attention has been drawn to the cross examination of DW 1 wherein he has stated that the cheque in question was a crossed cheque; it has been pointed out that this is contrary to the version set up by the defendants who have stated that this was a bearer cheque; futher DW-1 in his cross examination has stated that the cheque in question bore the signatures of Mr. Anil Khattar which is not the case of the parties; admittedly this cheque had been issued by the plaintiff, Sh. Om Prakash. Attention has also been drawn to the version of DW-2 wherein he has stated that the plaintiff had demanded a sum of Rs.20,000/- saying that he was in dire need of money; it is difficult to imagine that DW-2 could have arranged such an amount when he himself owed money to Anil Khattar which was the next part of his deposition. It is pointed out that DW-4 has for the first time stated that the cheque did not have a date. These versions are contrary and conflicting; the Trial Judge relying upon these versions has committed a perversity. Counsel for the appellant has placed reliance upon a judgment of the Supreme Court reported in AIR 2010 SC 2685 Bharatha Matha & Anr. Vs. R.Vijaya Renganathan & Ors. to support his submission that where a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the said judgment would be perverse. Ratio is applicable to the instant case. 9. Arguments have been countered by the learned counsel for the respondent. 10. It is stated that this court is sitting in second appeal and cannot re-appreciate facts; it is not the third fact finding court. It is pointed out that the findings of the impugned judgment are in no manner perverse and call for no interference. 11. Perusal of the record shows that both the courts below had given concurrent findings. 10. It is stated that this court is sitting in second appeal and cannot re-appreciate facts; it is not the third fact finding court. It is pointed out that the findings of the impugned judgment are in no manner perverse and call for no interference. 11. Perusal of the record shows that both the courts below had given concurrent findings. The defence of the defendants had been substantiated in the version of four witnesses who had adduced oral evidence and the documentary evidence which comprises of DW 1/1 to DW 1/4. Defendant no. 2, Sh. Ved Prakash, the proprietor of M/s Prem Jewellers has come into the witness box as DW-1. He had deposed that the cheque in question was given to him by Sh. Anil Khattar for the payment of his bill which was of Rs. 20,000/- which was raised by him for the purchase of a gold ring and a chain by Sh. Anil Khattar. Anil Khattar had come into the witness box as DW-4 to corroborate this version. The entries in his ledger book had been proved as Ex. DW 1/3 and DW 1/4. Defendant no. 3, Sh. Rajeshwar Sandhi, has come into the witness box as DW-2. He had deposed that on 16.04.1993, he had given a loan of Rs. 20,000/-. to the plaintiff in cash which was returned by the plaintiff vide the cheque in question i.e. PW-1/1; this was on 19.04.1993; cheque did not have any name or endorsement on it. DW-4 deposed that Rajeshwar Sandhi (DW-2) had taken a loan of Rs. 20,000/- from him. On 19.04.1993, DW-4 approached DW-2 for money as he was in need of it; DW-2 gave him a cheque of Rs. 20,000/-; on 19.04.1993 DW-4 purchased one gold ring and one chain from the shop of defendant no. 2 and in lieu of that payment, he had given that Ex. PW 1/1 to defendant no. 2 (DW-1) which was of Rs. 20,000/-; balance amount of Rs. 330.80/- was paid in cash. 12. Both the courts below had correctly appreciated the oral and the documentary evidence. Relevant extract of the impugned judgment reads as follows:- “11. No doubt by the testimony of PW-1 the cheque dt. PW 1/1 to defendant no. 2 (DW-1) which was of Rs. 20,000/-; balance amount of Rs. 330.80/- was paid in cash. 12. Both the courts below had correctly appreciated the oral and the documentary evidence. Relevant extract of the impugned judgment reads as follows:- “11. No doubt by the testimony of PW-1 the cheque dt. 20.4.93 for Rs.20,000/- favouring of M/s Prem Jeweller for the Account No.10987 drawn by Om Parkash has been proved and the same has been proved as Ex.PW-1/1 and encashment of cheque is not in dispute by the respondent M/s. Prem Jeweller. What has been disputed is the loan advanced by the appellant to the respondent. In order to prove the loan by the appellant-plaintiff to the respondent-defendant No.1 no other document has been proved and at the same time it has come on record from the testimony of the appellant himself that previously the appellant and respondent No.1 were not known to each other. It is very difficult to understand as to how the loan has been advanced to the unknown person if that person is not known to the party previously. At the same time, ld. counsel for the appellant submitted that the presumption goes in favour of the plaintiff in respect of issuing the cheque regarding consideration thereof. No doubt this presumption is perfectly available and valid and a cheque issued in favour of any person is to be presumed that it was issued for some consideration. At the same time, ld. counsel for the appellant submitted that the presumption goes in favour of the plaintiff in respect of issuing the cheque regarding consideration thereof. No doubt this presumption is perfectly available and valid and a cheque issued in favour of any person is to be presumed that it was issued for some consideration. But consideration is not in dispute and that too has been pleaded and proved by the respondent in his pleading and on evidence also and corroborating document have also been proved on record to prove with preponderance of evidence for the said cheque had been given to the respondent No.1 by one A.K. Khattar for the purchase of golden ornament i.e. ring and a chain and the corresponding entry in the account book and issuance of the bill, documents relating to sales tax and income tax and concerned entry relevant for transaction which is very much on record, corroborate the plea taken by the respondent to successfully rebut the case of the appellant in all respect and in those circumstances in the absence of any corroborating document for advancing a loan it is really very difficult to believe the story of the appellant that he had advanced a loan of Rs.20,000/- to respondent No.1 and on the other hand the plea taken by the respondent No.3 and successfully proved on record by documentary as well as oral evidence on record, I find that the ld. Trial Court was perfectly justified in believing the evidence led by the respondents in support of their pleadings and on evidence there was no reason to discard their testimony as unreliable since on cross-examination nothing contradictory has been pointed out and at the same time there was no reason found on record to disbelieve the testimony of DW-1 Rajiv Saxena, DW-4 A.K. Khattar, who handed over the cheque to the respondent No.1 and DW-2 Rajeshwar Sandhi, who had given that cheque to A.K. Khattar and in view of these facts proved on record, I find no justification to interfere the impugned judgment and decree passed by the ld. Commercial Civil Judge, and , accordingly, I find no merit or substance in the appeal. 13. In no manner can it be said that these findings of the two courts below were perverse. Commercial Civil Judge, and , accordingly, I find no merit or substance in the appeal. 13. In no manner can it be said that these findings of the two courts below were perverse. Perverse- has been defined as a verdict which is not only against the weight of evidence but is altogether against the evidence. 14. In (2009) 10 Supreme Court Cases 206 Arulvelu And Another Vs. State , the Supreme Court on the meaning and the scope of a „perverse finding? had inter alia held as follows:- “A broad distinction has, therefore, to be maintained between the decisions which are perverse and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be, the conclusions would not be treated as perverse and the findings would not be interfered with.” 15. It is clearly not the case, as is apparent from the record, that the impugned judgment had taken into account evidence not adduced by the parties or had ignored or misread the documentary evidence. Hands of this court are tied; it cannot re-examine facts. Appeal has no merit; it is dismissed.