AMIT GARG Vs. RAMINDER SINGH

JUDGEMENT

(1.) Present is a second appeal under Section 100 of CPC challenging the impugned judgment and decree dated 01.05.2012 passed by the learned ADJ (III), North, Tis Hazari Courts, Delhi upholding the judgment and decree dated 28.05.2011 passed by the learned Civil Judge, Delhi vide which suit of respondent for recovery of Rs. 1,20,000/- along with interest @ 18% per annum has been decreed. Respondent herein i.e. plaintiff before the learned Civil Judge had filed a suit under Order 37 of CPC alleging therein that the appellant herein i.e. defendant before the learned trial court was known to him for the past two years. In June, 2009 the appellant/defendant approached the respondent/plaintiff for a friendly loan of Rs. 1,20,000/-. On 10.06.2009, the respondent/plaintiff had advanced a friendly loan of aforesaid amount to him and the appellant/defendant had executed documents such as promissory note and receipt in his favour with the assurance that he will return the said loan amount within one month. When the amount was not returned, the respondent/plaintiff contacted him and demanded the said amount but he was postponing the payment of loan amount. Ultimately, the respondent/plaintiff filed a suit against him under Order 37 of CPC for recovery of loan amount along with interest @ 18% and had also prayed for awarding of the cost of the suit.

(2.) The summons for appearance were issued to appellant/defendant who had put in appearance within the stipulated period. Thereafter, summons for judgment were issued. After the service of summons for judgment upon appellant/defendant, he had moved an application under Order 37 Rule 3(5) CPC for the grant of leave to defend the suit. In the said application, he had alleged that the suit filed was false and bogus. He denied having taken loan and alleged that the suit had been filed to extract money from him. The appellant had denied having executed the alleged promissory note and receipt dated 10.06.2009 and alleged that the same were false and fabricated documents. He had also denied having known the respondent/plaintiff prior to the filing of the suit. The said application was opposed by the respondent/plaintiff by contending that in the application for leave to defend no triable issue has been raised nor the appellant/defendant had any defence to establish that the case was frivolous one. The respondent/plaintiff took the stand that the documents annexed with the suit were genuine documents.

(3.) After hearing the parties, the learned Civil Judge dismissed the application for leave to defend by holding that the appellant/defendant had failed to explain as to how his thumb impression were there on the promissory note and receipt. Learned Civil Judge also noted that the father of the appellant/defendant had also signed and affixed the thumb mark on the promissory note. The documents were also properly stamped. The learned Civil Judge had also compared the signatures on promissory note/receipt with the admitted signatures of appellant on application for leave to defend, affidavit, etc. on record and came to the conclusion that they appear to be same and accordingly dismissed the application for leave to defend. Even in the appeal before the lower appellate court, the learned ADJ had compared the admitted signatures of the appellant/defendant i.e. which were there on the leave to defend application and on the affidavit on record with the signatures appearing on the promissory note and receipt and came to the conclusion that the signatures on the leave to defend application and affidavit appear to be similar to those appearing on the promissory note and receipt. The same was done in view of the power given to court under Section 73 of Indian Evidence Act. It has also been noted in the impugned order that in response to leave to defend application, the respondent/plaintiff has categorically stated that the promissory note has been witnessed by the father of the appellant/defendant, namely, Sh. Ram Pal Gupta and the said assertion has not been denied by the appellant/defendant by filing rejoinder. In these circumstances, the courts below have rightly observed that the defence put up by the appellant/defendant is improbable and sham one. There are two concurrent findings by the courts below that the admitted signatures appearing on the application for leave to defend and affidavit appear to be similar to those on the promissory note and receipt in question. As noted above, the appellant/defendant has also not denied the signatures of his father and has also not denied the assertion of the respondent/plaintiff in response to leave to defend application that the promissory note has been duly witnessed by the father of appellant/defendant. In these circumstances, both the courts below have rightly held that the defence raised is frivolous.