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2011 DIGILAW 2459 (RAJ)

Surendra Kumar v. Vikash Sharma

2011-11-16

BELA M.TRIVEDI

body2011
JUDGMENT 1. - The present appeal has been filed by the appellant-defendant challenging the judgment and decree dated 8.7.2011 passed by the learned District Judge, Tonk (hereinafter referred to as the 'trial court') in the Civil Suit No. 58/2009 whereby the trial court has decreed the suit of the respondent (original-plaintiff) by directing the appellant to pay Rs. 1,03,365/- with interest at the rate of 6% per annum from the date of suit till realisation. 2. The short facts giving rise to the present appeal are that the appellant and the respondent had friendly relations with each other and therefore the appellant had borrowed Rs. 1,00,000/- from the respondent for his personal use. As per the case of the respondent before the trial court, the appellant had assured to return the said amount with interest within one month, however, the appellant could not pay the same. Thereafter, the appellant issued a cheque being No.103108 of State Bank of Bikaner and Jaipur of Rs. 1,00,000/- in favour of the respondent on 24.7.2008. The said cheque was deposited by the respondent in the bank for clearance, however, the same returned dishonored on the ground of insufficiency of the fund. The respondent thereafter served a notice dated 9.8.2008 to the appellant, however, the appellant did not make the payment and thereafter the respondent had filed the suit. The said suit was resisted by the appellant denying the allegations made in the plaint and further contending interalia that the suit was barred by limitation and that no such amount of Rs. 1,00,000/- was borrowed by the appellant from the respondent. 3. The trial court after appreciating the evidence on record partly decreed the suit of the respondent plaintiff as stated hereinabove. Being aggrieved of the said judgment and decree the appellant defendant has preferred the present appeal. 4. It has been sought to be submitted by learned counsel for the appellant that the trial court has mis-appreciated the evidence on record while decreeing the suit of the respondent. According to him, there were discrepancies in the evidence of the witnesses examined by the respondent plaintiff so far as the time and place of payment of money made by the respondent to the appellant was concerned. According to him, there were discrepancies in the evidence of the witnesses examined by the respondent plaintiff so far as the time and place of payment of money made by the respondent to the appellant was concerned. He also submitted that the notice given by the respondent prior to filing of the suit was under the Negotiable Instruments Act and thereafter no criminal complaint was filed against the appellant by the respondent. 5. Having regard to the submissions made by learned counsel for the appellant and to the judgment under challenge, it clearly transpires that it was not disputed by the appellant defendant in the suit regarding issuance of cheque for the sum of Rs. 1,00,000/- in favour of the respondent plaintiff which cheque was dishonored on the ground of insufficiency of fund in the account of the appellant. The appellant had also not been able to establish under what circumstances and for what purpose the said cheque was issued by the appellant in favour of the respondent. As against that the respondent by examining the witnesses and also by producing the documentary evidence, established that the appellant had borrowed Rs. 1,00,000/- from the respondent and subsequently the appellant had issued the cheque in question towards refund of the said amount. The said cheque having been dishonored, the respondent had filed the suit after serving a notice to the appellant calling upon him to pay the said amount of cheque. However, the appellant having failed to make the payment, the suit was filed by the respondent. 6. The trial court has dealt with in detail the factual and legal aspect involved in the case and this court does not find any illegality or perversity in any of the finding arrived at by the trial court. There being no error in the judgment and decree passed by the trial court, the present appeal deserves to be dismissed and is dismissed accordingly in limine.Appeal dismissed. *******