ORDER : Goutam Bhaduri, J. Heard. 1. The present appeal is against the impugned judgment and decree dated 05.03.2022 passed by the 8th Additional District Judge, Durg in Civil Suit No.16-B/2015, whereby the suit filed by the appellant for recovery of Rs.17 Lakhs with interest @ 11.50% with quarterly rest, was dismissed. 2. Pleading as made would show that the plaintiff stated that the defendants Sukhvir Singh Raghav, defendant No.1 and Dhurendra Singh Raghav, defendant No.2 are brothers. On 29.12.2013, they approached the plaintiff on the ground that they need certain loan for six months in order to facilitate their business of seeds. The plaintiff stated that he did not have the amount, as such, looking to the relation inter se, wanted to help and pledge his FDR of Rs.18 Lakhs in the bank and obtained Rs.17 Lakhs as loan. The plaintiff further stated that instead of issuing the cheque in the name of the defendants at their request, since it might take few days for clearance, as such, at the request of the defendants, a self cheque, which was endorsed in the name of the defendant No.2 was issued and accordingly, an amount of Rs.17 Lakhs was received by the defendant No.2. The plaintiff further states that he did not repay back the amount till December, 2014, as such, the legal notices were sent, but, it remained unserved and amount was not repaid. Consequently, a civil suit was filed for recovery. 3. The defendants in their written statement have denied the entire averments of the plaint. It was stated that on the request of the plaintiff, since he was a senior citizen and aged person and Rs.17 Lakhs was to be withdrawn from the bank as also considering the incident of burglary and the loot, which may take place, plaintiff asked for support and in order to support him, defendant No.2 went to bank along with the plaintiff and withdrew an amount of Rs.17 Lakhs on a self cheque and gave the amount to the plaintiff. Issuance of legal notice was also denied by the defendants, so dismissal of claim was proposed. 4. The learned Additional District Judge has framed four issues and finding was given in negative that the plaintiff is not entitled for recovery of Rs.17 Lakhs from the defendants. Issuance of legal notice was also denied by the defendants, so dismissal of claim was proposed. 4. The learned Additional District Judge has framed four issues and finding was given in negative that the plaintiff is not entitled for recovery of Rs.17 Lakhs from the defendants. The plaintiff on their behalf examined himself and one Anand Prakash, a person from the Bank of India, one Vijay Laxmi Sharma, who was a witness to the loan and Dr. D.K. Thakur. The defendants examined themselves. The learned trial Court, after evaluating the evidence, recorded a finding that no loan was advanced by the plaintiff to the defendants and dismissed the suit. Hence, this appeal. 5. Learned counsel appearing for the appellant would submit that the learned trial Court completely misdirected itself to evaluate the evidence, as the plaintiff, who was a senior citizen of more than 77 years, at the time of filing suit, at the request of the defendants, obtained loan by pledge of his FDR with the bank. He would further submit that after the money was received, a cheque was endorsed in favour of the defendant No.2, who obtained cash from from the bank, never handed over the cash to the plaintiff as alleged. He would further submit that the learned trial Court mainly went on the issue that no income tax return was placed to show advancement of loan, but failed to take into account a self cheque which was endorsed in favour of the defendant No.2. He would also submit that the defendants failed to deny the legal presumption, which the trial Court has completely lost its sight. Therefore, the case may be decreed in favour of the plaintiff. 6. Per contra, learned counsel appearing for the respondent No.1 would submit that according to the plaintiff, the entire amount of loan was given to the defendant No.1, but, there is no document to this effect that such loan was ever granted. It is alleged that the defendant No.2 was working as an agent of defendant No.1, who obtained the amount, but the evidence placed before the Court would show that it was only on the basis of the past relation, defendant No.2 wanted to help out the plaintiff and while accompanying him to the bank, he took him and extended support. It is alleged that the defendant No.2 was working as an agent of defendant No.1, who obtained the amount, but the evidence placed before the Court would show that it was only on the basis of the past relation, defendant No.2 wanted to help out the plaintiff and while accompanying him to the bank, he took him and extended support. It is further submitted that there is nothing on record to substantiate the fact that the amount so withdrawn, was not handed over to the plaintiff. He further submits that the findings of the learned trial Court that the income tax return was not placed on record to show that the amount was advanced has a bearing to the issue and the learned Court below has rightly observed in favour of the defendants that no such loan transaction was ever took place between them and the impugned order is well merited and do not call for any interference. 7. We have heard learned counsel appearing for the parties, perused the pleadings and the evidence available on record. 8. The plaintiff-appellant filed a recovery suit on the primary pleading on the premises that the defendants requested for loan of Rs.17 Lakhs and they being known to each other, on severe persistence, he agreed to advance loan of Rs.17 Lakhs by pledge of his FDR in the bank. Accordingly, FDR worth Rs.18 Lakh was pledged and loan of Rs.17 Lakhs was obtained. 9. Anand Shankar Prasad, PW-1, a witness from the bank, proved the fact of advancement of loan and the copy of such loan transaction is filed as Ex.P-1. The Ex.P-2 is letter of bank was also proved by this witness, which shows that an amount of Rs.17 Lakhs was sanctioned against the pledge of FDR with interest @11.50% at quarterly rest. According to the plaintiff, the said amount was given to the defendants. The defendants have completely disowned such receipt of amount. The learned trial Court has observed that the plaintiff has not filed any document with respect to income tax return to fortify the fact of advancement of loan. Admittedly, there is no documentary evidence exists as to whether amount of Rs.17 Lakhs was obtained as loan by the defendant No.1-Sukhveer Singh Raghav except oral statement. 10. At this juncture, the document, Ex.P-3(c), which is a cheque written with word “pay self through Mr. Admittedly, there is no documentary evidence exists as to whether amount of Rs.17 Lakhs was obtained as loan by the defendant No.1-Sukhveer Singh Raghav except oral statement. 10. At this juncture, the document, Ex.P-3(c), which is a cheque written with word “pay self through Mr. Dhurendra Singh Raghav”, of Rs.17 Lakhs issued by the plaintiff is on record. On the back side of the said cheque, signature of Dhurendra Singh Raghav, the defendant No.2 and the plaintiff are scribed. The plaintiff stated that being an old aged person, on the request of the defendants to help them, he pledged his FDR and obtained the loan. Contrary to it, the defendants stated that they have not availed any loan and witness of defendant No.2-Dhurendra Singh Raghav, in whose name, the cheque was endorsed, stated that in order to help the plaintiff, he went from Raipur to Durg, accompanied the plaintiff to the bank and assisted him to receive the cash and after receipt of cash, the defendant No.2 dropped the plaintiff back to his house. 11. The endorsement in the cheque (Ex.P-3(c) would show that it was endorsed in favour of the defendant No.2. It being so the nature of endorsement would fall under Section 15 of the Negotiable Instrument Act, 1881 (In short “the Act of 1881”). This section purport that for the purpose of negotiation, the instrument is endorsed by signing the instrument and nature of the document would be the person would be the holder in due course. The signature of the defendant No.2 on the back side of the cheque is an admitted fact, which was signed not in the capacity of maker, but in the capacity of holder, which mean that instrument was transferred with an intention for transferring the right to other person for consideration. The holder means a person, who hold the bill in a representative capacity and the effect of such endorsement would be transfer of the property to the transferee and all legal incidents of such property would also stand transferred to the transferee. 12. Further, Section 16 of the Act of 1881 further purport that how to such endorsement is made. For the sake of brevity, Section 15 & 16 of the Act of 1881 is reproduced as under :- 15. 12. Further, Section 16 of the Act of 1881 further purport that how to such endorsement is made. For the sake of brevity, Section 15 & 16 of the Act of 1881 is reproduced as under :- 15. Indorsement.---”When the maker or holder of a negotiable instrument signs the same, otherwise than as such maker, for the purpose of negotiation, on the back or face thereof or on a slip of paper annexed thereto, or so signs for the same purpose a stamped paper intended to be completed as a negotiable instrument, he is said to indorse the same, and is called the “indorser”. 16. Indorsement “in blank” and “in full”-----”Indorsee”----(1) If the indorser signs his name only, the indorsement is said to be ‘in blank”, and if he adds a direction to pay the amount mentioned in the instrument to, or to the order of, a specified person, the indorsement is said to be “in full”, and the person so specified is called the “indorsee” of the instrument. (2) The provisions of this Act relating to a payee shall apply with the necessary modifications to an indorsee.” The principle that to constitute an endorsement within the purview of Section 16 of the Act of 1881 necessitated that there should be an endorsement to pay the amount to named individual embodied. 13. A perusal of Ex.P-3, which was a self cheque endorsed in the name/favour of defendant No.2, certainly contains a direction to pay specified person to the bank. A perusal of the word in Ex.P-3 would reflect the intention of the parties which shows pay self through Dhurendra Singh Raghav or bearer of Rs.17 Lakhs. The endorsement in full made in the cheque, which naturally authorize the defendant No.2 to receive the amount form the bank. 14. The contention of the defendant No.2, who accompanied the plaintiff to the bank that in order to help him out to receive the money on the request of the plaintiff, he travelled from Raipur to Durg and went along with him to the bank and thereafter, after the money was received, it was handed over to the plaintiff. This statement of fact when evaluated with the statement of plaintiff that the defendant was in hurry to get the amount and instead of A/c payee cheque, asked for self cheque with endorsement appears to be more probable. This statement of fact when evaluated with the statement of plaintiff that the defendant was in hurry to get the amount and instead of A/c payee cheque, asked for self cheque with endorsement appears to be more probable. The statement of defendant that only to help the plaintiff to receive the amount from bank, he travelled from Raipur to Durg and received the amount in cash counter of bank and handed over to plaintiff, appears only a self serving statement against human conduct. If the plaintiff was capable enough to go to the bank, we don't see any sufficient reason that he will sit back only at the time of receipt of cash and push the defendant No.2 to receive the cash by making endorsement on the cheque under Section 16 of the Act of 1881. Therefore, the submission of the plaintiff that though the documents have not been proved to show that actually, the defendant No.2 was acting on behalf of defendant No.1, who availed loan, the fact that the cash received by the defendant No.2 from the bank can be presumed on the basis of the preponderance of probability by evaluating the documentary and oral statements and conduct of the parties. 15. According to the plaintiff, an amount of Rs.17 Lakh was given to the defendant No.2 by way of loan may not be admitted, but the fact remains the liability of the person to whom money is paid by mistake, the analogy can be drawn from Section 72 of the Indian Contract Act, 1872 that a person to whom money has been paid, or anything delivered by mistake, must repay or return and the same can be applied in the facts of this case. 16. Further, the said receipt of money by the defendant No.2 can also be branded as unjust enrichment. 17. The Supreme Court in the matter of Indian Council for Envirolegal Action v Union of India and others, reported in (2011) 8 SCC 161 , laid down the principles with respect to unjust enrichment at paras 152, 153, 154, 155 & 156, which are reproduced hereinbelow:- 152. “Unjust enrichment' has been defined by the court as the unjust retention of a benefit to the loss of another, or the retention of money or property of another against the fundamental principles of justice or equity and good conscience. “Unjust enrichment' has been defined by the court as the unjust retention of a benefit to the loss of another, or the retention of money or property of another against the fundamental principles of justice or equity and good conscience. A person is enriched if he has received a benefit, and he is unjustly enriched if retention of the benefit would be unjust. Unjust enrichment of a person occurs when he has and retains money or benefits which in justice and equity belong to another. 153. Unjust enrichment is "the unjust retention of a benefit to the loss of another, or the retention of money or property of another against the fundamental principles of justice or equity and good conscience." A defendant may be liable "even when the defendant retaining the benefit is not a wrongdoer" and "even though he may have received [it] honestly in the first instance." (Schock v. Nash (732 A 2d 217) Delware 1999),232-33. 154. Unjust enrichment occurs when the defendant wrongfully secures a benefit or passively receives a benefit which would be unconscionable to retain. In the leading case of "......It is no longer appropriate, however, to draw a distinction between law and equity. Principles have now to be stated in the light of their combined effect. Nor is it necessary to canvass the niceties of the old forms of action. Remedies now depend on the substance of the right, not on whether they can be fitted into a particular frame-work. The right here is not peculiar to equity or contract or tort, but falls naturally within the important category of cases where the court orders restitution, if the justice of the case so requires." 156. The above principle has been accepted in India. This Court in several cases has applied the doctrine of unjust enrichment.” 18. Accordingly, by considering the statement of witnesses, we are of the view that the learned trial Court has not appreciated the evidence in its proper perspective and order of dismissal of suit has been passed. 19. In the result, the First Appeal No.83 of 2022 is allowed and the impugned judgment and decree dated 05.03.2022 passed by the 8th Additional District Judge, Durg in Civil Suit No.16-B/2015 is hereby set aside. 19. In the result, the First Appeal No.83 of 2022 is allowed and the impugned judgment and decree dated 05.03.2022 passed by the 8th Additional District Judge, Durg in Civil Suit No.16-B/2015 is hereby set aside. We directed that the plaintiff would be entitled for amount of Rs.17 Lakhs with interest @ 11.50% from the defendant No.2 with effect from 30.12.2013 till the recovery of the amount along with cost of the suit.