MAHENDER KUMAR KANWARIA Vs. SH SANJAY BAROLIA

JUDGEMENT

(1.) C.M. Appl. No. 30101/2016 (for exemption) Exemption allowed, subject to all just exceptions.

(2.) The facts of the case are that respondent/plaintiff by means of a cheque dated 8.7.2008 gave a loan of Rs.1,00,000/- to the appellant/defendant. The cheque of Rs.1 lakh bearing no. 554745 drawn on ICICI Bank Limited, Janakpuri, New Delhi was admittedly credited in the account of the appellant/defendant. Since the appellant/defendant failed to pay the loan amount in spite of requests and service of legal notice, the subject suit for recovery came to be filed. Appellant/defendant contended that he never took any loan from the respondent/plaintiff but it is the respondent/plaintiff who had earlier taken a loan of Rs.3,50,000/- from the appellant/defendant and out of this loan a sum of Rs.2,00,000/- was already returned in cash by the respondent/plaintiff to the appellant/defendant and out of the balance of Rs.1,50,000/- the subject cheque from ICICI Bank Limited was given in repayment of part of the balance amount. The suit was accordingly prayed to be dismissed.

(3.) The only issue before this Court, and as was before the first appellate court, was as to whether the appellant/defendant had given a loan of Rs.3,50,000/- and the subject cheque for the amount of Rs.1,00,000/- was given towards repayment of balance amount of Rs.1,00,000/- out of the total balance remaining of Rs.1,50,000/-. In this regard, the first appellate court has noted that the appellant/defendant has filed no proof whatsoever that a loan of Rs.3,50,000/- was given by the appellant/defendant to the respondent/plaintiff and also that if the respondent/plaintiff had paid back earlier an amount of Rs.2,00,000/- then how and when it was paid. Appellant/defendant, therefore, led no evidence whatsoever to show that he had advanced any loan of Rs.3,50,000/- to the respondent/plaintiff for the subject cheque of Rs.1,00,000/- being towards re-payment of a balance amount of Rs.1,00,000/- out of the total balance of Rs.1,50,000/-. The first appellate court in this regard has rightly observed in paragraph 13 of the impugned judgment that the appellant/defendant failed to prove that the cheque of Rs.1 lakh was not towards repayment of alleged loan granted by the respondent/plaintiff but was actually towards the repayment of loan of Rs.1 lakh granted by the appellant/defemdant to the respondent/plaintiff, and the same reads as under:-