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2017 DIGILAW 1207 (HP)

Alka Sharma v. Roshan Lal Verma

2017-10-30

CHANDER BHUSAN BAROWALIA

body2017
JUDGMENT Chander Bhusan Barowalia, J. - The present regular second appeal is maintained by the appellants, who were the defendants before the learned Trial Court (hereinafter to be called as ''the defendants''), laying challenge to the judgment and decree, dated 25.04.2006, passed by learned Additional District Judge, Shimla, H.P., in Civil Appeal No. 60-S/13 of 2001, whereby the judgment and decree, dated 27.08.2003, passed by the then sub-Judge, 1st Class (2), Shimla, District Shimla, H.P., in Civil Suit No. 26/1 of 2001, was set aside and suit was decreed. 2. Briefly, the facts, which are necessary for determination and adjudication of the present appeal, are that the respondent, who was the plaintiff before the learned Trial Court (hereinafter to be called as ''plaintiff''), has maintained a suit for recovery of Rs. 80,000/ - (Rupees eighty thousand) alongwith interest at the rate of 12% per annum, against the defendants, on account of loan advanced by him to the husband of defendant No. 1. As per the plaintiff, on 28.12.1998, late Sh. Sanjay Sharma, husband of defendant No. 1, approached the plaintiff for a loan of Rs. 80,000/-, which was paid to him by the plaintiff through cheque No. 1500670, dated 28.12.1998 and it was agreed between the parties that the said amount will be returned alongwith interest at the rate of 12% per annum. The said amount was encashed by late Sh. Sanjay Sharma on the same day. It is alleged that earlier also late Sh. Sanjay Sharma had borrowed a sum of Rs. 2,00,000/ -from the plaintiff for his business purposes and subsequently the loan of Rs. 80,000/ -was advanced to late Sh. Sanjay Sharma on account of their good personal relations, however on 08.03.2001, Sanjay Sharma has expired and left behind defendants No. 1 & 2. being his legal heirs, hence the plaintiff filed the suit for recovery of Rs. 80,000/ -against the defendants. 3. The defendants, by filing written statement, denied the contents of the plaint. It has been further averred in the written statement that the defendants have not inherited the estate of late Sh. being his legal heirs, hence the plaintiff filed the suit for recovery of Rs. 80,000/ -against the defendants. 3. The defendants, by filing written statement, denied the contents of the plaint. It has been further averred in the written statement that the defendants have not inherited the estate of late Sh. Sanjay Sharma, as he was having no movable or immovable property in his name at the time of his death and at that time defendant No. 1 was being residing with her parents at Kullu, whereas defendant No. 2 was studying in 5th Class in O.L.S. Public School, Kullu, who was being looked after by the father of defendant No. 1. It has been further submitted that both the defendants are totally dependent upon the parents of defendant No. 1 and are having no source of income. Apart from replying the averments on merits, preliminary objections qua maintainability, cause of action and jurisdiction has also been taken by the defendant and ultimately they prayed for dismissal of the suit. 4. By filing replication, the plaintiff re-asserted his case. 5. The learned Trial Court on 03.05.2002 framed the following issues for determination and adjudication: "1. Whether plaintiff is entitled to recover a sum of Rs. 80,000/ - being principal amount alongwith interest at the rate of 12% P.A. from the defendants as alleged ? OPP 2. Whether the suit is not maintainable? OPD 3. Whether the plaintiff has no cause of action? OPD 4. Whether this court has no jurisdiction to try and decide the present suit? OPD 5. Relief." 6. After deciding issues No. 1 and 4 in negative and issues No. 2 and 3 in affirmative, the learned Trial Court dismissed the suit of the plaintiff. Subsequently, the plaintiff maintained an appeal before the learned first Appellate Court, which was allowed and suit of the plaintiff was decreed. Hence the present regular second appeal, which was admitted for hearing on the following substantial question of law: "1. Whether the first Appellate Court has committed serious illegality in not drawing a presumption that the cheque was issued for consideration, received by the plaintiff at the time of issuance of the cheque?" 7. Hence the present regular second appeal, which was admitted for hearing on the following substantial question of law: "1. Whether the first Appellate Court has committed serious illegality in not drawing a presumption that the cheque was issued for consideration, received by the plaintiff at the time of issuance of the cheque?" 7. Learned counsel for the appellants has argued that the presumption that cheque was issued for the consideration, is required to be taken by the Court, as provided under Section 114 of the Indian Evidence Act, 1872 and the learned Trial Court has rightly presumed that the cheque was for the consideration and that presumption was never rebutted by the plaintiff. He has further argued that except self serving statement of the plaintiff that it was the loan amount, there was no iota of evidence before the learned first Appellate Court to conclude that it was the loan amount. He has argued that the plaintiff in his statement feigned ignorance with respect to the business health of the deceased, however he has admitted that the deceased was having good business at Bilaspur and in these circumstances, the presumption of loan, as taken by the learned first Appellate Court is totally perverse, hence the present appeal be allowed and the judgment and decree, passed by the learned first Appellate Court be set aside. 8. In order to appreciate the rival contentions of the parties, I have gone through the record carefully. 9. PW-1, Mansa Ram (Assistant Manager, Punjab National Bank), in his examination-inchief, admitted that M/s Sanjay Enterprises has its account, having account No. 113, with their bank and on 02.12.1998, a sum of Rs. 2,00,000/-, vide cheque No. 1500661, has been deposited to the same from some bank of Shimla. This witness has proved on record copy of voucher, Ext. P-1, copy of ledger sheet, Ext. P-2 and admitted the same to be true. In his cross-examination, he feigned ignorance as to by whom the said cheque was issued. 10. PW-2, Roshan Lal (Retired Executive Engineer, HPSEB), has deposed that on 01.12.1998 he issued a cheque of Rs. 2,00,000/ - to late Sh. Sanjay Sharma and at that time, he was posted as Executive Engineer, Bilaspur. He has further deposed that on 28.12.1998, he again paid Rs. 80,000 - to late Sh. Sanjay Sharma, vide H.P. Cooperative Bank, Branch at Shimla. 2,00,000/ - to late Sh. Sanjay Sharma and at that time, he was posted as Executive Engineer, Bilaspur. He has further deposed that on 28.12.1998, he again paid Rs. 80,000 - to late Sh. Sanjay Sharma, vide H.P. Cooperative Bank, Branch at Shimla. He has stated that despite asking for money time and again, late Sh. Sanjay Sharma has not returned money to him and on 08.03.2001, Sanjay Sharma has expired. In his cross-examination, he deposed that after the death of Sanjay Sharma, his widow and daughter are inheriting his property. He denied that no cheque was issued by him to late Sh. Sanjay Sharma. He has admitted that late Sh. Sanjay Sharma, was having healthy business at Bilaspur, however he denied that he was not in need of money. 11. DW-1, Alka Sharma (widow of late Shri Sanjay Sharma), has deposed that in the year, 2001, when her husband has expired, he was not having any movable or immovable property in his name and neither she, nor her daughter has inherited his property. She has further deposed that after the death of her husband, she alongwith her daughter is being residing with her father at Kullu, who is bearing their maintenance, as well as other educational expenses of her daughter. In her cross-examination, she admitted that she may have received a sum of Rs. 50,000/ - or Rs. 55,000/ - as compensation in respect of the car, however she feigned ignorance about the exact amount. She has further admitted that the industrial plot at Bilaspur was purchased by her in her own name, where she used to work as a partner with Tripat Kaur in respect of electrical goods, however after shifting to Kullu, she relinquished her share in favour of Tripat Kaur. She could not tell whether she had filed any income tax return in her name or not. She deposed that after the death of her husband, she has not operated his bank accounts. She deposed that she has utilized her personal savings and the money given by her father for establishment of the said business. She has further deposed that Partnership Deed, Ext. P-3, was executed by her after the death of her husband. She feigned ignorance about the dealings, which her husband was having with the plaintiff. She deposed that she has utilized her personal savings and the money given by her father for establishment of the said business. She has further deposed that Partnership Deed, Ext. P-3, was executed by her after the death of her husband. She feigned ignorance about the dealings, which her husband was having with the plaintiff. She denied that neither she, nor her father has ever applied for issuance of succession certificate with regard to the estate of her husband. 12. DW-2, Sunil Kumar (Patwari, main Market, Bilaspur), has admitted that Certificate, Ext. D-1, was issued by him, which bear his signatures. In his cross-examination, he admitted that Ext. D-1 has been issued in favour of Sh. Onkar Nath, father of the deceased and the property was also in his name. He denied that the property was in the name of late Sh. Sanjay Sharma and his widow. 13. From the evidence produced on record, it is clear that the plaintiff though has stated that he paid Rs. 80,000/ - as loan to late Sh. Sanjay Sharma, vide cheque, however he could not prove on record any agreement or evidence in this regard. Thus, issuance of cheque, without there being anything on record, does not mean that the cheque was issued as loan. Further the plea taken by the plaintiff that after the death of late Sh. Sanjay Sharma, his widow and minor daughter have inherited his entire estate, as such, they are liable to return the suit amount to the plaintiff, being his legal heirs. So it was incumbent on the part of the plaintiff to lead convincing evidence to prove the moveable and immoveable property, the deceased was acquiring at the time of his death, which has been later on succeeded by the defendants. However, the entire evidence is clearly missing on this aspect also and in these circumstances, this Court is not in a position to infer as to what moveable or immoveable property has been left by the deceased, which was later on succeeded by the defendants, being his legal heirs. However, the entire evidence is clearly missing on this aspect also and in these circumstances, this Court is not in a position to infer as to what moveable or immoveable property has been left by the deceased, which was later on succeeded by the defendants, being his legal heirs. In order to hold that a particular property belonged to the estate of the deceased, following points are necessary to take into account: (1) The property must be in existence at the time before the death of deceased, (2) The deceased must have beneficial for the property, (3) The deceased must be in possession and control of such property, (4) The deceased must have power to dispose of such property. However, after carefully going through the entire evidence, oral as well as documentary, which has come on record, there is nothing on record to prove the aforementioned facts. 14. Further the plaintiff was working in the Government service, as Engineer HP PWD and the deceased was having nothing to do with the plaintiff in any manner, as he was businessman and having no dealings with PWD Authorities. Simply because in one photograph of the marriage of the son of plaintiff deceased Sanjay Sharma is appearing, nowhere suggests that deceased had taken loan from the plaintiff. In these circumstances, in the absence of plaintiff proving that the amount was paid as a loan, the widow of deceased Sanjay Sharma, cannot be held liable just on the basis of presumption. Thus, the findings, recorded by the learned first Appellate Court are perverse, there is no evidence on record to conclude that any loan was advanced by the plaintiff to the deceased. So, substantial question of law is answered holding that the learned first Appellate Court has committed serious illegality in not drawing a presumption that the cheque was issued for consideration, received by the plaintiff at the time of issuance of the cheque and was not the loan amount. 15. In view of the aforesaid discussion, the present regular second appeal is allowed and the judgment and decree, passed by the learned first Appellate Court is set aside and the judgment and decree, passed by the learned Court below is restored. However, in view of peculiar facts and circumstances of the case, the parties are left to bear their own costs. 16. Pending miscellaneous application(s), if any, also stand(s) disposed of.