ARUN DUGGAL Vs. D N TALWAR

JUDGEMENT

(1.) THIS appeal is against the judgment of the learned Additional District Judge passed on 09/02/09 in Suit No. 75 of 2006 filed by the respondent herein under order XXXVII of the Code of Civil Procedure, 1908 ('cpc' in short) whereby a decree for a sum of Rs. 8,80,000/- with pendente lite and future interest thereon @ 12% p. a. has been passed against the two appellants-defendants after rejection of their separate applications for leave to defend the suit.

(2.) THE relevant facts are that the respondent herein, who shall hereinafter be referred to as 'the plaintiff', filed a suit under Order XXXII CPC for recovery of Rs. 8,80,000/- against the two appellants-defendants, who shall hereinafter be referred to as 'the defendants', on the allegation that on 31/05/05 he had advanced a loan of Rs. 8,00,000/- to the defendants for a period of four months. The defendants had agreed to re- pay the loan alongwith interest @ 12% p. a. It was averred in the plaint that at the time of taking the loan on 31/05/05 the defendants had executed an undertaking, based on which the suit was filed under order XXXVII CPC, to repay the loan amount within four months alongwith interest. However, they did not honour their commitment and so a legal notice dated 09/03/06 was served upon them requiring them to re-pay the loan amount as per the undertaking executed by them. The defendants replied to that notice denying that they had taken any loan from the plaintiff. Regarding the alleged undertaking referred to in the notice they asked the plaintiff to give them a copy of that undertaking so that they could take civil and criminal action against him. On the refusal of the defendants to re-pay the loan amount to the plaintiff he filed the suit for recovery and the suit amount included a sum of rs. 8,00,000/- on account of the principal loan amount and Rs. 80,000/- as interest thereon accrued upto the date of the institution of the suit.

(3.) THE defendants filed separate affidavits as required under Order XXXVII Rule 3 (5) CPC disclosing facts which according to them entitled them to get leave to defend the suit. As far as defendant no. 1 (appellant no. 2) Atul Duggal is concerned, he had sought leave to defend the suit on the ground that he had neither taken any loan from the plaintiff nor had he signed any undertaking as was being claimed by the plaintiff and thus the suit qua him was liable to be dismissed. Defendant no. 2 (Appellant no. 1) Arun Duggal in his affidavit although admitted that the document purporting to be an undertaking and being relied upon by the plaintiff in support of his claim bore his signatures but he denied having taken any loan from the plaintiff. Elaborating further his stand, it was pleaded by defendant no. 2 Arun Duggal that he alongwith his brother, had entered into a property transaction with the plaintiff regarding the sale of 2nd and 3rd floors of property no. 8/18, Ramesh Nagar, New Delhi for a total sale consideration of Rs. 22,30,000/- and some earnest money had also been received from them by him vide two receipts dated 31/05/05 (which date in the rejoinder, the defendant clarified to be 31/03/05 and not 31/05/05) and copies of which are placed on record. Later on it had transpired that the plaintiff had misrepresented himself to be the owner of the said property and actually he was not the owner but his wife owned it. So another agreement to sell was got executed by the plaintiff between his wife and defendant no. 1, Atul Duggal and his uncle, defendant no. 2, Arun Duggal on 30/05/05 for a sum of Rs. 9 lacs and that agreement showed payment of Rs. 20,000/- as earnest money and Rs. 8,80,000/- received from defendant's banker by pay order and sale deed was executed on 08/06/05, copy of which was placed on record. It was also pleaded that sale in respect of 3rd floor sale deed could not be executed although defendant no. 2 and his brother had paid the plaintiff and his wife Rs. 20,80,000/ -. Since sale deed in respect of 3rd floor could not be executed the balance sale consideration of Rs. 1,50,000/- could not be demanded by the plaintiff from the defendant no. 2 and his brother and not only that the defendant no. 2 and his brother became entitled to the refund of excess money received from them by the plaintiff and that this suit was filed to pressurize the defendants to not to ask for the refund of the excess amount. In these circumstances, there was no occasion for the defendant to take loan from the plaintiff. Regarding the alleged Undertaking it was pleaded by the defendant that the stamp paper on which the Undertaking was drawn out was actually signed by defendant no. 2 and one other person (who in the memorandum of appeal is stated to be Dalip Duggal, the brother of Arun Duggal) for the loan transaction with the ICICI Bank, on a blank stamp paper but the agent of the said bank seemed to have colluded with the plaintiff and the plaintiff allowed him to convert that blank stamp paper having the signature of the defendant no. 2 into an Undertaking of the said defendant acknowledging the receipt of Rs. 8,00,000/-as loan from the plaintiff.