MAHENDRA DAYAL, J. - (1.) THE defendant -appellant, feeling aggrieved by the judgment and order dated 24.01.1996 passed by the First Additional District Judge, Bahraich, in Civil Appeal No.107 of 1995, has filed this second appeal.
(2.) THE brief facts of the case are that the plaintiff -respondent filed a suit for recovery of Rs.28,325/ - with the allegation that he was proprietor of Naseem Engineering Company, Bahraich while the defendant -appellant had also been doing business in the name of Kisan Centre. It was further stated that the defendant -appellant used to take loan from him whenever he was short of finance and in the series of these transactions, he took Rs.5000/ - on 26.03.1990 by means of cheque, and subsequently, on 30.03.1990 he took Rs.3000/ - by means of another cheque and when the plaintiff -respondent demanded the aforesaid amount, the defendant - appellant returned the same. The plaintiff -respondent was, therefore, under the impression that whenever any amount would be taken by the defendant -appellant by way of loan, the same would be returned to him in due course of time. Under the aforesaid impression, the plaintiff -respondent gave him Rs.20,000/ - by means of two different cheques dated 04.07.1991 and 20.08.1991 which the defendant -appellant had assured to return but inspite of repeated demands, the said amount was not returned. The plaintiff -respondent then issued a notice on 21.09.1993 by registered post calling upon him to pay the entire amount due along with interest. The defendant -appellant inspite of service of notice upon him, did not pay the aforesaid amount.
(3.) THE defendant -appellant contested the suit and filed his written statement in which he stated that he did not take any amount by way of loan from the plaintiff -respondent. In fact, the plaintiff -respondent used to take money from him in connection with his business and on his assurance he had given him some amount. It was further stated in the written statement that the plaintiff -respondent had taken loan from District Industries Centre and since he was not in a position to re -pay the loan with interest, he took money from the defendant -appellant and it was on account of the said loan that the plaintiff -respondent gave him two cheques of Rs.10,000/ - each which was subsequently encashed. The said amount was not given by way of any loan and as such the plaintiff -respondent was not entitled to any amount and the suit was liable to be dismissed. The learned trial court on the basis of pleadings of the parties framed as many as seven issues and on the basis of evidence on record came to the conclusion that the plaintiff -respondent has failed to prove that he gave loan of Rs.20,000/ to the defendant -appellant and as such he was not entitled to recover any amount from the defendant -appellant. W ith the aforesaid finding, the suit of the plaintiff -respondent was dismissed with cost.;