RAMESH Vs. NARAYAN

JUDGEMENT

(1.) By this appeal, the appellant (original defendant), is challenging concurrent orders passed by the two Courts below, whereby summary suit for recovery of amount filed by the respondent, has been decreed.

(2.) The respondent (original plaintiff) filed the aforesaid suit for recovery of amount of Rs.2,50,000/- against the appellant herein. It was contended by the respondent that the appellant had entered into an agreement to sale dated 03 /05/2001, with the respondent in respect of house property for consideration of Rs.3,50,000/-. It was claimed that the respondent paid an amount of Rs.2,50,000/- as earnest amount to the appellant herein and that the same was acknowledged by the appellant in the presence of Notary, the respondent himself and two attesting witnesses. Later, according to the respondent, the appellant communicated to the respondent that the appellant did not wish to sell the house and that he was ready to repay the entire earnest amount by March, 2003. An agreement dated 26/11/2001, was executed between the parties in that regard and accordingly, the appellant allegedly issued cheque dated 28/03/2003 for an amount of Rs.2,50,000/- in favour of the respondent. It was claimed that the appellant requested the respondent to deposit the said cheque after some time as there was some financial crisis faced by the appellant and ultimately the cheque was deposited on 02/08/2003, which was returned on 07/08/2003 as unpaid with an endorsement "funds insufficient". In pursuance thereof, the respondent issued notice and initiated complaint proceedings under the provisions of the Negotiable Instruments Act . On the basis of these facts, the respondent prayed for decree of recovery of the said amount along with future interest @18% p.a.

(3.) The appellant was served with summons and he filed an application for leave to defend at Exh.40. In the said application, the appellant submitted that he had never issued aforesaid cheque for an amount of Rs.2,50,000/- and that he had paid the amounts by cash and cheques to the respondent. It was claimed that amount of Rs.1,40,000/- was paid by way of four cheques issued between January 2002 to September 2002 and that the remaining amount of Rs.1,10,000/- had been paid by cash to the respondent, as a result of which there was no amount due and, therefore, there was no question of issuance of the said cheque for amount of Rs.2,50,000/- in favour of the respondent. The said application was allowed by order dated 16/06/2006.