Decided on November 05,2007



- (1.) APPELLANT Shri Love Kumar Sethi has preferred this appeal against the judgment dated 1st March, 2005 passed by the Addl. District Judge, dismissing his suit No. 80/2002 filed by the appellant recovery of Rs. 4,64,400/- (Four Lac sixty four thousand four hundred only ). Parties were left to bear their own costs. The present appeal was preferred on 7th October, 2005. After counting time taken in obtaining certified copy, there is a delay of nearly 146 days in institution of the appeal. Appellant has accordingly moved CM 15787/2005 being an application under Section 5 of the limitation Act for condonation of delay in filing of the appeal. Reply to the said application has been filed. We shall advert later to this aspect.
(2.) THE facts in brief culminating in filing of the present appeal may be noted :- (i) Appellant Love Kumar Sethi filed a suit under Order XXXVII cpc for recovery of Rs. 4,64,400/- together with pendente lite and future interest. Appellant claims to have deposited with the respondents a sum of Rs. 15,000/- per month commencing from 7th February, 2000 till 7th January, 2002 resulting in total deposit of Rs. 3,60,000/ -. The suit amount of Rs. 4,64,000/- is inclusive of interest @ 24% from 7th February, 2000 till 7 january, 2002. The respondents executed promissory notes for the sum of Rs. 15,000/- deposited each month carrying interest @ 24% for a period of two years. Respondents failed to make repayment of the amount mentioned in the promissory notes executed by the respondents in favour of the appellant from 7th february, 2000 to 7th January, 2002. (ii) Appellant accordingly served a legal notice demanding payment in respect of all the promissory notes executed by the respondents in favour of the appellant from 7th February, 2000 to 7th january, 2002 together with interest @ 24% amounting to Rs. 4,64,000/ -. Despite notice dated 9th April, 2002, respondents failed and neglected to make the payment. Leave to contest the suit was granted to the respondents and written statement was filed. Respondents in the written statement raised a number of preliminary objections claiming the suit to be premature since no cause of action had yet accrued to the appellant for instituting the suit. It was claimed by the respondents that promissory notes had been executed by respondents 2 and 3 in the year 1993-1994 and were handed over to one Mr. Vijay Kumar Bhardwaj. The present suit was barred by limitation. It was the respondent's case that money had been advanced by one Vijay Kumar bhardwaj, a high police functionary, who had obtained the signed promissory notes and promised to return the same but failed to do so. (iii) It was claimed that promissory notes had not been executed on behalf of respondent No. 1-firm but had been signed by respondents 2 and 3 in their individual capacity- It was claimed that as the financial condition of the respondent did not improve, mr. Bhardwaj suggested respondents 2 and 3 to transfer first and second floor of shop No. 41, Defence Colony Market to him and his nominees. For this purpose, Sale deeds in respect of first and second floors of the shop were made in name of his brother mr. Ajay Kumar Bhardwaj and his brother in law Mr. Pramod kumar respectively and the entire loan given by Vijay Kumar bhardwaj stood adjusted against the said transactions. However, Vijay Kumar Bhardwaj deceitfully and maliciously did not return the promissory notes by making false excuses that same were not traceable.
(3.) LEARNED counsel, therefore, submits that substantial justice has been done in the matter to the respondents by the finding of the trial court that the said promissory notes not being inadmissible in evidence inasmuch as respondents had more than discharged their liability by transferring of first and second floor of the shop in question and were being made to suffer double jeopardy on being sued on promissory notes that had not been deceitfully returned.;

Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.