ZAKIUDDIN Vs. RAJENDRA KUMAR

JUDGEMENT

(1.) This appeal is by the defendant No. 1, which was admitted on the following substantial question of law:--

(2.) The Trial Court, vide judgment and decree dated 30-1-1985, inter alia held that defendant No. 2 had deposited a sum of Rs. 5000/- on behalf of the plaintiff with defendant No. 1 and defendant No. 1 had agreed to pay interest on the aforesaid amount. Accordingly, the Trial Court directed the defendant No. 1 to pay an amount of Rs. 7650/- to plaintiff and to pay interest at the rate of 6% per annum on the principal amount, i.e., Rs. 5000/- from 1-5-1980, i.e., the date of filing of the suit till its realisation. Being aggrieved by the aforesaid decree, the defendant No. 1 preferred an appeal. The Lower Appellate Court, vide impugned judgment and decree dated 30-1-1985, inter alia held that defendant No. 1 had paid back the amount to defendant No. 2, which is apparent from Exh. D-1. However, it was not proved that the amount in question was paid to the plaintiff. Accordingly, Lower Appellate Court modified the decree of the Trial Court and directed that defendant Nos. 1 and 2 shall pay a sum of Rs. 7650/- to plaintiff and shall pay interest on the principal amount from the date of institution of the suit till its realisation. It was further directed that the amount shall first be recovered from defendant No. 2 and in case, the amount is not recovered from defendant No. 2, the same shall be recovered from defendant No. 1 and in case the amount is recovered from defendant No. 1, the defendant No. 1 shall be at liberty to institute a separate suit for the recovery of the amount in question against defendant No. 2.

(3.) Learned Counsel for the appellant submitted that the Courts below have grossly erred in fastening the liability on the defendant No. 1. It was further submitted that both the Courts have concurrently found that defendant No. 1 had paid back the amount to defendant No. 2 and, therefore, in view of Section 218 of the Indian Contract Act, 1872, the liability on the appellant/defendant No. 1 to pay the amount in question could not have been fastened. In support of his submissions, learned Counsel for the appellant has placed reliance in the cases of Firm Murlidhar Banwarilal Vs. Firm Kishorelal Jagannath Prasad and others, 1960 AIR(Raj) 296 and Babulal Swarupchand Shah Vs. South Satara (Fixed Delivery) Merchant s Association Ltd. and another, 1960 AIR(Bom) 548 On the other hand, learned Counsel for respondent No. 2 submitted that the judgment and decree passed by the Lower Appellate Court is perfectly just and legal and does not call for any interference.