JAGDISH KUMAR Vs. SUBHASH CHANDER SACHDEVA

JUDGEMENT

(1.) THIS appeal has impugned the judgment and decree 07.05.2005 which had reversed the findings of the trial Judge. Trial Judge vide judgment and decree dated 30.04.2003 had dismissed the suit of the plaintiff. The impugned judgment had decreed it.

(2.) THIS is a dispute between two brothers. The plaintiff Subhash Chandra had filed the present suit for recovery of Rs.2,23,255.00. His allegation was that his brother i.e. defendant<APL> Jagdish Kumar </APL>along with Shanti Devi had taken funds in trust from the plaintiff to purchase a flat i.e. flat No. A-10, Sector 9, Rohini, Delhi. A sum of Rs.1,03,000.00 had thus been entrusted to the defendant and was duly transferred from the bank account of the plaintiff. Further sums were again entrusted to the defendant for being paid to the HDFC and Sahyog Cooperative Group Housing Society, Parwana Vihar, Rohini, Delhi. Total of this was Rs.42,140.00 of which Rs.38,640.00 was the amount paid to the HDFC and Rs.3,500.00 was the amount paid to the Society. Thus a total of Rs.1,45,140.00 had been entrusted to the defendant. The defendant had purchased the aforenoted flat out of funds of the plaintiff. The plaintiff has a lien over the said flat; the defendant had agreed to repay the entrusted amount to the plaintiff. Part payments of Rs.85.00 and Rs.100.00 was in fact made by the Shanti Devi on 17.07.1994 and 17.04.1997; balance of Rs.1,44,955.00 was yet payable. The defendant had surreptiously sold his flat for an amount of Rs.3,20,000.00; the sale consideration was pocketed; half of it was paid to Shanti Devi and the remaining half amount was usurped by the defendant without paying back the entrusted amount to the plaintiff. The plaintiff is entitled to the refund of this aforestated amount along with interest @ 18% per annum. The plaintiff before filing the suit had also served a legal notice dated 15.09.1999 reiterating his claim.

(3.) ON the pleadings of the parties, the trial Judge had framed three issues. Oral and documentary evidence was led. On the basis of said evidence, the suit of the plaintiff was dismissed. Trial Judge returned a finding that the statement of accounts Ex. PW-4/A1 to Ex. PW-4/A7 does not show that the payments had been made by the plaintiff on behalf of the defendant or on behalf of Shanti Devi; amount was not recoverable. On the question of limitation also, the suit was dismissed. The findings of the trial Judge on the issue of limitation was returned as follows:-