SURESHCHANDRA NANDLAL Vs. LALA GOPIKRISHNA GOKULDAS AGENCIES

JUDGEMENT

(1.) THIS is an Appeal filed by the Appellant-Plaintiff against the dismissal of his Suit being Summary Suit No.3018 of 1974 by the City Civil Court at Bombay as per the Judgment and Decree dated 29th April, 1980.

(2.) THE said Judgment and Decree was a common Judgment in respect of two Summary Suits. Summary Suit No.3018 of 1974 was filed by Sureshchandra Nandlal against Lala Gopikrishna Gokuldas Agencies and the Summary Suit No.3019 of 1974 was filed by Krishnachandra Laxmichand against Lala Gopikrishna Gokuldas Agencies. Though the Judgment was common, since the Decrees were different, two different Appeals were preferred before this Court by the Plaintiff and this Appeal is only in respect of Suit No.3018 of 1974. THE other Appeal did not come for hearing and Mr. Rajesh Shah, Counsel for the Appellant-Plaintiff is the present Appeal informed me that he is not appearing for the Appellants-Plaintiff is the other Appeal arising out of the Summary Suit No.3019 of 1974. So far as this Appeal arising out of the Summary Suit No.3018 of 1974 is concerned, the facts are as under :- 07-01-1971 - Loan of Rs.20,000/- was given to the Defendants by the Plaintiff Sureshchandra. 03-05-1971 - Cheque given by the Defendant in favour of the Plaintiff Sureshchandra. 19-07-1971 - Cheque presented to the bank for the first time and dishonoured. 24-09-1971 - Cheque dishonoured for the second time. March 1972 - Kailashchand Bhaiya manager of the Defendants was removed from the service by the Defendant. 15-09-1972 - First notice of demand given by the Plaintiff's Advocate to the Defendant. 14-10-1972 - Defendant's reply to the Plaintiff's Advocate. 10-12-1973 - Second notice of the demand from the Plaintiff's Advocate to the Defendant. 19-12-1973 - Reply of the Defendant to second notice of demand. 20-03-1974 - Suit filed.

(3.) ON the other hand, it was argued by Mr. Devashray that the Suit of the Plaintiff was rightly dismissed by the Lower Court because the Plaintiff failed to prove the following counts :- (1) That when there was no relation of the Plaintiff with the Defendant, it was not acceptable that the Plaintiff would advance such a huge amount of Rs.20,000/- to the Defendant. (2) If at all, any advance was made by the Plaintiff to an unknown person, the Plaintiff was required to obtain receipt for the same, but no such receipt was accepted and no satisfactory explanation was given by the Plaintiff in that regard. (3) The case of the Plaintiff was that it was a sarafi transaction. The word sarafi was nowhere pleaded in the Notice which preceded the suit or in the plaint and no explanation was given by the Plaintiff for this omission. (4) If the transaction was a loan transaction, the Plaintiff did not charge an interest in the Accounts Book when the Defendant failed to repay the loan within 15 days or within the time agreed. (5) The cheque that was given by the Defendant was not presented immediately, and the presentation of the cheque was only after two months. (6) That the Defendant was in sound financial position and was not in need of any loan or money. (7) That Kailaschandra was not authorised to borrow money and Plaintiff before advancing loan to Mr. Kailashchandra should have made necessary enquiry as to the right and powers of Kailashchandra to raise loan for the Defendant. (8) That Books of Account were not relied upon by the Plaintiff initially when the Plaint was filed though affidavit of document was filed in that regard and the books of account were not proper, not regularly kept in course of business, were written in pencil and therefore the Books of Account should have been rejected. (9) That the Plaintiff was admittedly the money lender and sine the Suit transaction was a money lending transaction, the suit was liable tobe dismissed under the Bombay Money Lenders' Act, 1946.