CHUNILAL ANAND Vs. NARENDRA

JUDGEMENT

(1.) The plaintiff, who is the appellant in the present appeal, had filed a suit for recovery of Rs. 26,500.00 against the defendants/respondents herein. Suit was based on the averments that the plaintiff was a partner of M/s. Anand Metal Works carrying on business in C-143, Industrial Area, Naraina, New Delhi which was owned by the plaintiff and his sons Subhash Chander, Gulshan Kumar and Ashok Kumar in equal shares. Defendant No. 2 was having a garment manufacturing unit. He shifted his unit to C-143, Industrial Area Naraina, New Delhi. During his continuance there the defendant No. 2 succeeded in having his own industrial plot No. C-31, Sector VI at Noida (U.P.). He wanted to construct his own industrial shed on this plot. He requested the plaintiff to advance him loan for this purpose so that after the construction he is able to shift his fabricating unit to Noida. The plaintiff agreed to his request and advanced him loan of Rs. 20,000.00 provided the defendant No. 1, father of the defendant No. 2, stood guarantee for the repayment of the loan. Defendant No. 1 agreed to be a guarantor. The plaintiff advanced Rs. 20,000.00 to the defendant No. 2 by means of a cheque No. MIT/SB-008627 dated 9th March, 1985 dra on Union Bank of India, East Patel Nagar, New Delhi. An agreement dated 9th march, 1985 (Exhibit DW 1/1) stipulating terms and conditions of the loan transaction was also executed between the parties. As per this agreement, the defendant No. 2 had to repay the loan in twenty instalments of Rs. 1,000.00 each. these instalments were to start after six months from the date of agreement. In para 3 of the agreement, it was mentioned that in case of default in payment by the defendant No. 2, the plaintiff would be entitled to recover the amount from defendant No. 1 with interest and expenses, etc. and responsible for eviction of premises. As no instalment was paid by the defendant No. 2 even after the expiry of six months from the date of agreement, the plaintiff sent notice (Exhibit DW 1/4) dated 24th March, 1986 to defendants calling upon the defendants to pay the amount in question along with interest at the rate of 21 per cent per annum. Notice was duly received by the defendants. However, neither any reply was given nor amount paid. Therefore, the appellant was compelled to file. suit for recovery of Rs.26,500.00.

(2.) Defendants contested the suit by filing the written statement. In the written statement, the main defence of the defendants was that defendant No. 2 did not take any amount from the plaintiff by way of loan. Receipt of the cheque dated 9th March, 1985 for Rs. 20.000.00 from the plaintiff was admitted. However, it was alleged that the defendant No. 2 had given security in cash to the plaintiff at the time of taking premises No. C-143, Industrial Area Naraina, New Delhi on loan from the plaintiff and the plaintiff had refunded this security to the defendant No. 2 at the time of vacation of the premises. Therefore, no amount was payable by the defendants.

(3.) After the pleadings following issues were framed by the learned Trial Court: