Single Judge Appeal filed under Section 96 CPC to set aside the decree dismissing a suit for recovery of money. The High Court held that the appellant failed to prove the loan amount paid by his wife and sons who were not impleaded as parties, and dismissed the appeal suit.
Set aside the Judgment and Decree dated 13.08.2019 passed in O.S.No.86 of 2013.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
A.S.No.116 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 21.02.2023
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
A.S.No.116 of 2020
Rangarajan ... Appellant Vs. Chandrasekaran ... Respondent
Prayer: Appeal Suit is filed under Order 41 Rule 1 and 2 read with Section 96 of the Code of Civil Procedure, to set aside the Judgment and Decree of the Principal District Judge, Villupuram in O.S.No.86 of 2013.
For Appellant : Mr.R.Rajasekar For Mr.A.P.Neelamegavannan For Respondent : No appearance
J U D G M E N T
The Appeal Suit has been instituted against the Judgment and Decree
dated 13.08.2019 passed in O.S.No.86 of 2013.
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money. The plaintiff is an Auditor by profession and the defendant is the
proprietor of “Sri Venkateswara Silks” Textile shop at Villupuram. The defendant had close contact with the plaintiff and it had gone to the extent of borrowing money from the plaintiff and the plaintiff advanced the money during the year 2008 and 2009 at various occasions and the defendant was repaying the amount with interest at the rate of 18%. As per the plaintiff, the amount due from the defendant to the plaintiff accrued to the sum of Rs.10,00,000/- and the plaintiff demanded the defendant to pay the amount, since he was in need of money. The defendant issued 4 post dated cheques of Axis Bank Limited, Villupuram, bearing Nos.063601, 063602, 063603 and 063604 dated 24.07.2010, 24.08.2010, 24.09.2010 and 24.10.2010 respectively. The defendant expressed his business crises and requested to accept the post dated cheques, which will enable him to pay the dues in easy installments and the defendant being a leading textile businessman, the plaintiff believed his words and agreed the same. The cheques were subsequently presented and was returned since there was insufficient funds in the bank account of the defendant. Thus, the plaintiff issued notice on 25.06.2013 demanding to pay the amount due to him. The defendant issued
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a reply dated 11.07.2013 through his lawyer, denying the borrowal of the sum of Rs.10,00,000/- as stated in the plaint. Consequently, the plaintiff instituted the Suit for recovery of money of Rs.15,16,000/- from the defendant along with interest at the rate of 18% from the date of filing of the Suit.
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P.W.1 and Ex.A1 to Ex.A10 documents were marked. Regarding the issue
nos. 1 to 4, the Trial Court had considered the documents Ex.A1 to Ex.A10. ExA1 to Ex.A4 are the cheques. Ex.A5 is the advocate notice issued to the defendant. Reply notice is marked as Ex.A6. The income tax returns of the plaintiff are marked as Ex.A7. Income tax returns of the Plaintiff's wife / Kalpana is marked as Ex.A8 and the income tax returns of the son of the plaintiff are marked as Ex.A9 and Ex.A10.
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elaborate and the statement in the cross-examination. Relying on the deposition of P.W.1, the Trial Court made a finding that there is no proper document to prove the loan. As per the income tax returns of the plaintiff, Ex.A7, the plaintiff had paid only Rs.11,000/- to the defendant. Cheques are filled without the name of the person to whom the amount is to be paid. Even as per the evidence of P.W.1, he had paid Rs.11,000/- to the defendant. He had also paid Rs.3,73,000/- during the period 2009-2010 but the payment of amount had not been proved. Other amounts paid by his wife and sons were not made available in the plaint. Further, the wife and sons of the plaintiff are not added as parties in the Suit. However, the defendant had admitted that he borrowed a sum of Rs.2,00,000/- from the plaintiff. But the plaintiff himself admitted that he had paid Rs.11,000/- from his account and the other amount had been paid by his wife and sons. No documents are filed by the plaintiff for Rs.3,73,000/-. The defendant also had not filed any document to prove that the plaintiff had purchased textiles to adjust the loan amount. At the outset, the plaintiff had not filed any document to prove that the defendant had borrowed a sum of Rs.10,00,000/- nor he could be able to establish through his income tax returns that he had paid the said sum of Page 6 of 9
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Rs.10,00,000/-. In his own evidence, P.W.1 has stated that the loan amount
was paid through his wife and sons but the wife and sons have not been impleaded as parties in the Suit nor any other document has been filed to establish the said statement in the pleadings.
averments and the evidence of P.W.1 are contradictory and he has not impleaded his wife and sons as parties in the Suit. Receiver name in the cheques are also not mentioned. In view of the fact that the plaintiff had not proved that the Suit amount had been paid to the defendant by way of loan and there is no pleadings regarding the payment through his wife and sons, the Trial Court dismissed the Suit on the ground that the plaintiff had not proved his case. Accordingly, the Trial Court decided issue nos.1, 3 and 4 against the plaintiff and issue no.2 in favour of the defendant. The issuance of 4 cheques was established but the amount of loan was not established.
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21.02.2023
skr Index : Yes Speaking order Neutral Citation : Yes
To The Principal District Judge, Principal District Court, Villupuram.
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S.M.SUBRAMANIAM, J.
skr
A.S.No.116 of 2020
21.02.2023
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1 issue framed by the court
Whether the appellant is entitled to set aside the Judgment and Decree of the Principal District Court in respect of a suit for recovery of money?
1 provisions across 1 enactments
Rangarajan
Chandrasekaran
S.M.Subramaniam
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
