VIJAY KUMAR Vs. TARLOK CHAND

JUDGEMENT

(1.) THIS judgment shall dispose of Regular Second Appeal Nos. 2487 and 2488 of 1991, as common questions of law and fact are involved in both these appeals. Even otherwise, it has been submitted before me by the learned counsel appearing for the parties that the result of Regular Second Appeal No. 2487 of 1991 shall determine the fate of the other appeal bearing Regular Second Appeal No. 2488 of 1991. Thus, for the purpose of deciding both these appeals, the facts of Regular Second Appeal 2487 of 1991 may be noticed.

(2.) REGULAR Second Appeal No. 2487 of 1991 has been filed by Vijay Kumar Plaintiff, challenging the judgment and decree dated 18.10.1991, passed by the Additional District Judge, Hoshiarpur, whereby the appeal filed by Tarlok Chand defendant was accepted, the judgment and decree dated 7.10.1989 passed by the trial Court, were set aside and the suit filed by Vijay Kumar plaintiff for the recovery of Rs. 35,234.65 was dismissed.

(3.) THE said suit filed by Vijay Kumar plaintiff was contested by Tarlok Chand defendant by filing the written statement, taking up various preliminary objections including the stand that the alleged family settlement dated 20.3.1984 was a bogus and fictitious document and inadmissible in evidence. It was alleged that the alleged award dated 20.3.1984 was void and fictitious document and was never made the Rule of the Court and was inadmissible in evidence. On merits, it was admitted that the plaintiff, the defendant along with Abhey Kumar and Parphul Kumar were the partners of the firm M/s Nek Chand Tarlok Chand Jain and the same was dissolved on 8.11.1983. It was alleged that the plaintiff and his brother Abhey Kumar were never allowed to keep the name of the firm for any period, whatsoever, after 8.11.1983. It was also denied that the aforesaid truck was ever handed over to the defendant or that its value was assessed at Rs. 1,50,000/-. It was further alleged that the defendant had never agreed to pay a sum of Rs. 1,05,764.95 or any other amount to the New Bank of India Balachaur and the defendant had also never agreed to pay Rs. 44,238.05 to the plaintiff on account of truck No. PJD-507 nor did he agree to pay interest to the plaintiff. It was alleged that in fact the plaintiff had agreed to hand over cloth of the value of Rs. 44,238.05 to the defendant but later on he backed out of his commitment, whereupon the defendant had cancelled the pay order which he had drawn on the New Bank of India, Balachaur for handing over the same to the plaintiff in lieu of the price of the cloth. It was alleged that the plaintiff had undertaken to pay the amount of various persons. He owed the said amounts towards them on account of transactions in respect of the cloth. It was alleged that the defendant had not deposited any amount in the truck loan account of the plaintiff through Varinder Kumar nor did he ever receive any amount from the Truck Union personally or through anyone else. It was further alleged that if it was proved that the defendant had ever received any amount from the truck Union, that must have been on the instructions of the plaintiff and on his behalf. It was further alleged that no dispute was ever referred to any arbitrator nor any family settlement was ever arrived at or executed between the parties. It was alleged that the alleged arbitration award was a bogus and fictitious document besides being void and inadmissible in evidence. It was alleged that the same was never made the Rule of the Court and was never acted upon and would have no affects on the rights of the defendant. It was alleged that the plaintiff should first file the alleged award before a competent Court and get a ruling, before it could be enforced by a Civil Court. It was alleged that in view of this the question of there being any reference of truck No. PJD-507 in the memorandum of family settlement/arbitration award did not arise. It was alleged that the defendant did not deposit any amount by way of instalments of the truck loan with the New Bank of India personally or through anybody else nor did he pledge FDR of any one with the said Bank. It was alleged that in fact the defendant was not responsible to deposit any instalment in the Bank nor the Bank had any right to adjust the amount of any FDR against the loan account of the truck. It was alleged that in fact the truck had always been in possession of the plaintiff. It was denied that the plaintiff had taken the possession of the truck after receipt of notice from the Bank. It was alleged that the defendant was not aware if the plaintiff had sold the said truck and if so to whom and for how much, nor the defendant was aware of the fact as to what the plaintiff did with the alleged sale proceeds. It was alleged that the plaintiff had never handed over any draft payable to anyone to the defendant except a draft of Rs. 14,596.10 which the plaintiff owed to the defendant and his son Parphul Kumar. It was alleged that the pay order which was got prepared by the defendant and later on got cancelled, had nothing to do with truck No. PJD-507. It was denied that the defendant had agreed to pay any amount to the plaintiff towards the price of the truck or that the plaintiff was entitled to recover any amount from the defendant on that account. Other allegations contained in the plaint were also denied and it was prayed that the suit be dismissed.