Krishan Kumar v. Ganga Dutt & Ors.

CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present:- Mr. N.S.Shekhawat, Advocate, appellant. Gurdev Singh, J (oral) C. M. No. 13827 – C of 2010 Heard. For the reasons stated in the application, which is supported by an affidavit, the delay of 39 filing days in filing the appeal is hereby condoned. C. M. No. 13826 – C of 2010 Heard. For the reasons stated in the application, which is supported by an affidavit, the delay of 280 days in refiling the appeal is hereby condoned. R.S.A. No. 4658 of 2010 This second appeal is by Krishan Kumar-appellant/defendant (one of the legal representatives of Ram Singh, who was the original defendant) against whom the suit was filed by Ganga Dutt-plaintiff /respondent No.1 for the recovery of ` 1,30,000/-; ` 70,000/- principal amount and ` 60,000/- as interest thereon. That suit was dismissed by the Additional Civil Judge (Sr. Division), Mahendergarh, vide judgment and decree dated 7.11.2006. R.S.A. No. 4658 of 2010 (O&M) -2- The plaintiff preferred first appeal against that judgment and decree which was accepted by Additional District Judge, Narnaul and after setting aside the judgment and decree of the trial Court decreed the suit for recovery of ` 1,30,000/- along with interests @12% per annum from the date of institution of the suit till the date of decree and further interest @6% from the date of decree till the realisation of that amount. The case of the plaintiff is that he was owner of the tractor bearing chasis No. 3767 and engine No.3767, which was sold by him to the defendant for the sum of ` 2,05,000/-. He received ` 15,000/- as earnest money and the balance amount of ` 1,90,000/- was to be paid by the defendant in the bank, from where he had taken the loan for purchasing the tractor. Agreement dated 17.3.1998 was executed between them, vide which the defendant agreed to pay the remaining installments to the tune of ` 1,90,000/- to the bank on his behalf, on or before 20.11.1998, for obtaining no objection certificate from it. It was also agreed between them that in case the defendant failed to pay that amount to the bank, he (plaintiff) shall have right to get his property measuring 16 kanals, detailed in the plaint, transferred in his favour. The defendant failed to pay that amount to the bank and, therefore, he filed suit of recovery for the afore- mentioned amount. The suit was contested by the defendant. In his written statement he admitted that he had purchased the tractor from the plaintiff for `2,05,000/- and that he had agreed to deposit the balance price of `1,90,000/- with the bank. He denied the other contentions made in the plaint and pleaded that no such agreement was executed by him and the R.S.A. No. 4658 of 2010 (O&M) -3- same is the result of fraud and mis-representation. He never agreed to transfer his land in favour of the plaintiff and as such his suit is not maintainable. He also pleaded that the suit is barred by time. In replication to the written statement, the plaintiff denied all the contentions raised therein and reiterated his averments made in the plaint. On the pleadings of the parties, following issues were framed by the learned trial Court:-

1. Whether the plaintiff is entitled to recover ` 1,30,000/- from the defendant as prayed for?OPP

2. Whether the plaintiff has no locus standi to file the present suit?OPD

3. Whether the suit is not maintainable in the present form?OPD

4. Whether the plaintiff is estopped from filing the suit due to his act and conduct?OPD

5. Whether the suit is time barred?OPD

6. Relief. To prove his case, the plaintiff examined himself as PW1, Abhey Singh as PW2, Gurdayal Sharma, Deed Writer as PW3 and Ram Chander Clerk as PW4. On the other hand no evidence was produced by the defendants. After going through the evidence so produced in the Court and hearing learned counsel for both the sides, learned trial Court decided issues No. 1 to 4 against the plaintiff and Issue No.5 in his favour and resultantly dismissed the suit. As already said above that judgment and decree was set aside in the first appeal and the suit was decreed. R.S.A. No. 4658 of 2010 (O&M) -4- I have heard learned counsel for the appellant. It has been submitted by learned counsel for the appellant that the plaintiff failed to prove the agreement so pleaded by him in the plaint and no finding could have been recorded by the first appellate Court on the basis of the evidence produced by him that the defendant was to deposit ` 1,90,000/- in the bank and that he deposited only ` 1,20,000/-. When the finding recorded by the first Appellate Court is based on the mis-reading of the evidence, it can certainly be said that substantial question of law is involved in the present appeal. The first Appellate Court, after duly scrutinizing the evidence produced by the plaintiff, recorded a finding in his favour that the defendant was to deposit ` 1,90,000/- and he deposited only ` 1,20,000/-. After the defendant admitted in his written statement that the tractor was sold to him for ` 2,05,000/- and he was to deposit ` 1,90,000/- in the bank, onus was upon him to prove that such amount was deposited by him in the bank as it was the fact which was in his personal knowledge. The evidence produced by the plaintiff in support of his contentions was not rebutted by him. There is no such mis-reading of evidence while recording the findings in favour of the plaintiff. No substantial question of law arises in the present appeal. The same is, therefore, dismissed. December 6, 2010 tripti (Gurdev Singh) Judge