DESHRAJ SINGH Vs. RAKESH DAVE

JUDGEMENT

(1.) Instant regular first appeal has been filed under section 96 of the Code of Civil Procedure against the judgment and decree dated 7.1.2005 passed by the Additional District Judge (Fast Track), Parbatsar in Civil Original Suit No. 4/2004 (20/2002). whereby, the Trial Court decree the suit filed by the respondent - plaintiff.

(2.) Brief facts of the case are that a suit was filed for recovery of amount of Rs. 1,46,300.00 along with interest at the rate of 1.5 p.m. from the date of filing the suit till recovery of the said amount. In the plaint, it is specifically stated that respondent plaintiff Rakesh Dave is resident of Kuchaman City and appellant - defendant borrowed Rs. 15,651/- and Rs. 81.800.00 on 9.6.1999 and 16.6.1999 respectively which was deposited with Ashok Leyland Finance Ltd. and Rathore Auto Pvt. Ltd. Receipts of the said amount were lying with the plaintiff. It was assured that the said money will be returned soon but the amount was not returned. Thereafter, a cheque for a sum of Rs. 95,000.00 was given to the plaintiff by the appellant - defendant drawn on the Central Bank, Kuchaman City. The said cheque was submitted before the Bank for payment but the same was returned on 1.6.2001 by the Bank on the ground that amount is not sufficient in the account of the defendant. Thereafter, on 10.10.2001. notice for payment was sent to the defendant through Advocate but no reply was given to the notice nor payment was made by the appellant - defendant. Therefore, suit for recovery of Rs. 1.46.300.00 i.e., for principal amount of Rs. 95.000.00 along with interest from the date of filing suit was filed before the Trial Court.

(3.) After issuance of the notice by the Trial Court in the suit filed by the respondent - plaintiff, a reply was filed by the defendant contending that he has not borrowed money from the plaintiff. It is submitted by the defendant in the reply that the plaintiff was working as sub - agent of Ashok Leyland Finance Ltd. and, in fact, the defendant took loan through respondent plaintiff Rakesh Dave and the loan was obtained from the company and. for that, ten advance cheques were given to the respondent plaintiff because there was a condition that loan will be repaid in 24 instalments. As per appellant - defendant, out of ten cheques two cheques were utilised and after repayment of loan only seven cheques were returned by the finance company and one cheque was kept by the respondent - plaintiff with malafide intention to misuse the same. This fact came to the notice of the appellant - defendant for the first time when a notice was served upon him through Advocate. The respondent - plaintiff for his malicious act and due to enmity has cheated the defendant. However, it is also stated In the written - statement that the plaintiff kept one cheque out of ten cheques to deceive the appellant - defendant and used the cheque for committing mischief whereas ten cheques were given by the appellant - defendant.