SHRI ASGAR ALI SAIYAD Vs. SH. KRISHAN CHAND

JUDGEMENT

(1.) By way of the present appeal, the appellant is assailing the judgment and decree passed by the Court of learned District Judge, Sirmaur District at Nahan in Civil Appeal No. 42 -CA/13 of 2006 dated 09.11.2006 vide which, learned first appellate Court has dismissed the appeal filed by the present appellant and upheld the judgment and decree passed by the Court of learned Civil Judge (Junior Division), Court No. 2, Paonta Sahib, District Sirmaur in Civil Suit No. 37/1 of 2003 dated 30.08.2005.

(2.) This appeal was admitted on 30.11.2007 on the following substantial question of law:

(3.) Facts, in brief, necessary for adjudication of the present case are that respondent/plaintiff (hereinafter referred to as 'plaintiff') filed a Rs.50,000/ - suit for recovery of alongwith interest against the appellant/defendant (hereinafter referred to as 'defendant') on the ground that on 12.02.1998, defendant approached him and requested that he was in need of Rs.50,000/ - for his business of transportation and on his request, the plaintiff agreed to advance him a loan of Rs.50,000/ - and for the said purpose, the plaintiff issued a cheque for an amount of Rs.50,000/ - dated 12.02.1998, which money the defendant agreed to pay back alongwith interest @ 20% per annum till the entire amount was repaid. As per the plaintiff, the defendant had agreed to pay interest on the loan amount latest by 7th day of each month and also promised that he will pay the entire amount in lump sum after expiry of six months, failing which, the loan amount alongwith interest shall be recoverable from his moveable and immoveable property. A pronote to this effect was executed at Nahan on 12.02.1998 on a stamp paper of Rs.10/ - in the presence of one Shri Sarwan Kumar and Bhagel Singh. This pronote was duly attested by Notary Public, Nahan, namely Smt. Usha Aggarwal and the defendant was identified before the said Notary Public by Shri R.L. Garg, Advocate. Defendant issued a cheque dated 12.02.1998 for an amount of Rs.55,000/ - in favour of the plaintiff as security, but the same was subsequently cancelled by the defendant. The cheque issued by the plaintiff in favour of the defendant was duly encashed by him. On 02.04.1998, defendant paid an amount of Rs.5000/ - to the plaintiff vide cheque drawn upon State Bank of India, Nahan. On 03.02.2000, defendant executed one more pronote of Rs.50,000/ - in lieu of previous pronote, in which he admitted having received an amount of Rs.50,000/ - and having issued a cheque in favour of the plaintiff as security of the loan amount. This pronote was written at Paonta Sahib on 03.02.2000 in the presence of one Shri Sarwan Kumar and Ran Bhaj Sharma and was duly attested by Notary Public Shri Satish Gupta, Advocate. The plaintiff presented the said cheque in the State Bank of India, ADB Branch Paonta Sahib on 10.11.2000, but the same was dishonoured on the ground of insufficient funds. He on various occasions requested the defendant to pay back the amount with interest which he had lent to the defendant, but the defendant avoided the payment of the said amount. The plaintiff in these circumstances issued a legal notice to the defendant which was not received by the defendant willfully. Therefore, in these circumstances, the plaintiff filed a suit for recovery alongwith interest.