PRABHATI LAL Vs. YASH PAL

JUDGEMENT

(1.) THE appellant/plaintiff is aggrieved from the judgment dated 31 st March, 2010 of the Court of the learned Addl. District Judge 02 (North) Delhi, decreeing his suit, being CS No.04/2009 for recovery of Rs.3,99,000/ , only for a sum of Rs.1,60,000/ with costs and interest at 9% per annum from the date of institution of the suit and till realization.

(2.) NOTICE of the appeal was issued. It appears that the appellant/plaintiff was unable to even execute the decree for the sum of Rs.1,60,000/ with interest in his favour. On 20th January, 2011 an offer was made by the counsel for the respondent/defendant that the respondent/defendant was willing to pay the sum of Rs.1,60,000 with 9% interest within six months from then. The counsel for the appellant/plaintiff sought time to obtain instructions and also submitted, that the appellant/plaintiff, to show his bona fides should be asked to pay at least Rs.50,000/ . The said request of the appellant/plaintiff was accepted and the respondent/defendant was directed to bring Rs.50,000/ on the next date. The respondent/defendant issued two post dated cheques of Rs.25,000/ each and which were accepted by the counsel for the appellant/plaintiff without prejudice to his rights and contentions. The said cheques were not honoured and from time to time a sum of Rs.50,000/ in cash was paid by the counsel for the respondent/defendant to the counsel for the appellant/plaintiff and which the appellant/plaintiff accepted without prejudice to his rights and contentions. It appears that the respondent/defendant could not even pay the fees of his Advocate, who stopped appearing and the respondent or his wife started appearing in person. The respondent/defendant on 4th August, 2011 again stated that he would pay the balance decretal amount in instalments in six months but could not honour the said commitment also. Vide order dated 19th August, 2011 the respondent/defendant was directed to file an affidavit of his assets as well as income in Form 16A, Appendix E under Order 21 Rule 41 (2) of the CPC along with relevant documents. Though such an affidavit has been filed by the respondent/defendant but neither has the appellant/plaintiff inspite of opportunity filed any response thereto nor has the counsel for the appellant/plaintiff during the hearing today referred to the same. A further sum of Rs.5,000/ was paid in cash by the respondent/defendant to the appellant/plaintiff as recorded in the order dated 28th September, 2011 and which was accepted by the counsel for the appellant/plaintiff without prejudice to his rights and contentions. The appeal was on 21st October, 2011 admitted for hearing. On application of the appellant/plaintiff that he is a senior citizen, hearing was expedited. The order dated 30th May, 2013 records payments of another amount of Rs.6,000/ by the respondent/defendant to the appellant/plaintiff. The counsel for the appellant/plaintiff and the respondent/defendant in person have been heard.

(3.) THE counsel for the appellant/plaintiff has fairly stated that that is the fate of the appellant/plaintiff.