Allowed

Shambhu Prasad Jaiswal v. Abhishek Singh

Chhattisgarh HC16 Feb 2022FA/85/2020

Case brief

AI extract

What is this about?

Chhattisgarh High Court allowed an appeal against a dismissal of a suit for recovery of a loan. The court held that the trial court erred in refusing to allow the plaintiff to summon bank officials under Order 16 Rule 2 CPC, despite the right of evidence being closed. The matter was remanded for fresh adjudication.

What did the court decide?

The impugned judgment and decree dated 9-12-2019 set aside; matter remanded to trial court for fresh adjudication after notice to defendant.

Shambhu Prasad Jaiswal Vs Abhishek Singh — Contract and Commercial Disputes | Chhattisgarh HC (2022)

FA No.85 of 2020

NAFR

HIGH COURT OF CHHATTISGARH, BILASPUR

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FA No.85 of 2020

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{Arising out of judgment & decree dated 9-12-2019 passed by the Seventh Additional District Judge, Ambikapur, District Surguja, in civil suit No.01-B/2019}

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Shambhu Prasad Jaiswal S/o Late Shankatha Prasad Jaiswal Aged About 45 Years Occupation Contractor, R/o Namnakala, District Surguja, Chhattisgarh.

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---- Appellant/Plaintiff

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Versus

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Abhishek Singh S/o Shri Dinesh Singh Aged About 30 Years Occupation - Contractor, R/o Ring Road, Bauripara, Ambikapur, Tahsil - Ambikapur, District Surguja, Chhattisgarh.

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---- Respondent/Defendant

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For Appellant Mr. A.N. Bhakta & Mr. Vivek Bhakta, Advocates

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For Respondent None, despite service of notice.

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Hon'ble Mr. Justice Goutam Bhaduri & Hon'ble Mr. Justice Sanjay S. Agrawal

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Judgment on Board

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Per Goutam Bhaduri, J.

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16-02-2022

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Challenge in this appeal is to the judgment & decree dated 9-12-2019 passed by the Seventh Additional District Judge, Ambikapur, District Surguja, in civil suit No.01-B/2019 whereby the suit for recovery of amount, was rejected.

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The facts, in brief, are that the plaintiff claimed that he had advanced loan of Rs.13,90,300/- on 2-11-2017 to the defendant.

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FA No.85 of 2020

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Out of which the defendant returned an amount of Rs.2,00,000/on 6-11-2017, however, the subsequent amount was not returned. Therefore, legal notice sent to the defendant in the month of January, 2019 and when he failed to make repayment of the loan amount, the suit was filed.

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Before the Court below, the defendant remained ex parte .

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The trial Court, however, dismissed the suit on the ground that in respect of copy of account, which was proved as Ex.P/3, the plaintiff is not able to prove the fact that amount of loan was advanced to the defendant according to the entry and to whom the account belongs. The trial Court further held that on the basis of oral agreement, since it is not supported by any documentary evidence, no inference can be drawn and accordingly dismissed the suit.

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Learned counsel appearing for the appellant/plaintiff would submit that in order to prove the fact that amount paid to defendant, the plaintiff relied on document Ex.P/3 i.e. copy of account. The application was moved by the plaintiff under Order 16 Rule 2 of the Code of Civil Procedure, 1908 (for short ‘the CPC’) with a prayer to call the Bank officials to prove the fact that the said amount was withdrawn by the defendant, as the cheque was deposited in certain account and the said account belongs to the defendant, however, the trial Court dismissed the said application vide its order dated 22-10-2019 holding that the case is

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FA No.85 of 2020

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already fixed for final arguments and the prayer of like nature cannot be allowed. Learned counsel would also submit that because of such reason the appellant suffered an irreparable loss and lost opportunity to prove his case. He would next submit that on mere technicalities the orders have been passed, therefore, the issue is required to be remitted back to the trial Court for fresh adjudication.

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The defendant remained ex parte before this Court too.

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We have heard learned counsel for the appellant/plaintiff and have also gone through the records of the trial Court. The primary finding is recorded at paras 12 & 13 of the impugned judgment, wherein it has been observed that to whom amount of Rs.13,90,300/- was paid and in whose account it was deposited has not been proved by the plaintiff. The Court further observed that it has also not been proved by the plaintiff that the Account No.0020123182163 belongs to whom, in which the amount was transferred. The Court also observed that neither the promissory note nor any agreement was produced by the plaintiff so that the transaction can be proved.

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We have also gone through the record and the document Ex.P/3, which is a copy of account of the plaintiff. A bare perusal of the same would show that an amount of Rs.13,90,300/- was debited/ paid to the Account No.0020123182163. Naturally, only by mentioning of Account number, it cannot be said that the said

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FA No.85 of 2020

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account belongs to the defendant. From the record it is also evident that an application under Order 16 Rule 2 of the CPC was filed wherein the plaintiff claimed that the Branch Manager of the State Bank of India should be summoned along with necessary documents i.e. Account sheet so as to prove the fact that to whom the Account No.0020123182163 belongs and to whom the amount was paid. The said application was dismissed vide order dated 22-10-2019 by the Court below. Primary reading of the order would show that the application was rejected on the ground that the plaintiff's right of evidence is closed, therefore, it cannot be again re-fixed for evidence of the plaintiff.

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In our considered opinion, the learned Court below was too technical in adopting such view. These nature of orders give rise to multiplicity of proceedings instead of deciding the case on merits. Had the application been allowed, irrespective of its merits adjudication would have been there. The evidence, which is required to be adduced before the Court, could have been placed. Perusal of the order of the trial Court also shows that no exorbitant delay was caused in the trial as the suit itself was filed in the month of February, 2019. Therefore, only for the reason the case was fixed for argument as such, such application to call for evidence having dismissed appears to be erroneous.

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In view of the above, we deem it appropriate to give an opportunity to the plaintiff to prove the document Ex.P/3 by

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FA No.85 of 2020

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calling the Bank officials along with necessary original account sheet so that he may be able to adduce proper evidence before the Court. The plaintiff shall also be allowed to prove the fact that to whom the Account No.0020123182163 belongs and whether the transaction entered in Ex.P/3 is tallied with the entry of said account number.

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In the result, the appeal is allowed and the impugned judgment and decree dated 9-12-2019 is set aside to the above extent. The matter is remitted back to the Court below with a direction to adjudicate the suit afresh after issuance of notice to the defendant.

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No order as to cost(s).

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Sd/Sd/(Goutam Bhaduri) (Sanjay S. Agrawal) Judge Judge

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Gowri

Shambhu Prasad Jaiswal v. Abhishek Singh

Case brief

What is this about?

What did the court decide?

Shambhu Prasad Jaiswal v. Abhishek Singh

Case brief

What is this about?

What did the court decide?

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