ALKA SHARMA AND ANOTHER Vs. ROSHAN LAL VERMA

JUDGEMENT

(1.) The present regular second appeal is maintained by the appellants, who were the defendants before the learned Trial Court (hereinafter to be called as ?the defendants?), laying challenge to the judgment and decree, dated 25.04.2006, passed by learned Additional District Judge, Shimla, H.P., in Civil Appeal No. 60-S/13 of 2001, whereby the judgment and decree, dated 27.08.2003, passed by the then sub-Judge, 1st Class (2), Shimla, District Shimla, H.P., in Civil Suit No. 26/1 of 2001, was set aside and suit was decreed.

(2.) Briefly, the facts, which are necessary for determination and adjudication of the present appeal, are that the respondent, who was the plaintiff before the learned Trial Court (hereinafter to be called as ?plaintiff?), has maintained a suit for recovery of Rs. 80,000/- (Rupees eighty thousand) alongwith interest at the rate of 12% per annum, against the defendants, on account of loan advanced by him to the husband of defendant No. 1. As per the plaintiff, on 28.12.1998, late Sh. Sanjay Sharma, husband of defendant No. 1, approached the plaintiff for a loan of Rs. 80,000/-, which was paid to him by the plaintiff through cheque No. 1500670, dated 28.12.1998 and it was agreed between the parties that the said amount will be returned alongwith interest at the rate of 12% per annum. The said amount was encashed by late Sh. Sanjay Sharma on the same day. It is alleged that earlier also late Sh. Sanjay Sharma had borrowed a sum of Rs. 2,00,000/- from the plaintiff for his business purposes and subsequently the loan of Rs. 80,000/- was advanced to late Sh. Sanjay Sharma on account of their good personal relations, however on 08.03.2001, Sanjay Sharma has expired and left behind defendants No. 1 & 2, being his legal heirs, hence the plaintiff filed the suit for recovery of Rs. 80,000/- against the defendants.

(3.) The defendants, by filing written statement, denied the contents of the plaint. It has been further averred in the written statement that the defendants have not inherited the estate of late Sh. Sanjay Sharma, as he was having no movable or immovable property in his name at the time of his death and at that time defendant No. 1 was being residing with her parents at Kullu, whereas defendant No. 2 was studying in 5th Class in O.L.S. Public School, Kullu, who was being looked after by the father of defendant No. 1. It has been further submitted that both the defendants are totally dependent upon the parents of defendant No. 1 and are having no source of income. Apart from replying the averments on merits, preliminary objections qua maintainability, cause of action and jurisdiction has also been taken by the defendant and ultimately they prayed for dismissal of the suit.