Delhi High Court High Court

Balbir Singh vs M/S Goel Estate Finance & Ors on 3 March, 2011

Delhi High Court
Balbir Singh vs M/S Goel Estate Finance & Ors on 3 March, 2011
Author: Valmiki J. Mehta
*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                               RFA Nos.533/2001 & 619/2001


%                                                 3rd March, 2011

RFA No.533/2001

Jitender Kumar                                              ...... Appellant
                          Through:     None.

                          VERSUS


M/s Goel Estate Finance & Ors                               ...... Respondents
                       Through:        None.

RFA No.619/2001

Balbir Singh                                                ...... Appellant
                          Through:     None.

                          VERSUS


M/s Goel Estate Finance & Ors                               ...... Respondents
                       Through:        None.


CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

    1.   Whether the Reporters of local papers may be
         allowed to see the judgment?

    2.   To be referred to the Reporter or not?

3. Whether the judgment should be reported in the Digest?

VALMIKI J. MEHTA, J (ORAL)

RFA No. 533&619/2001 Page 1 of 6

1. These cases are on the Regular Board of this Court since

17.1.2011. Today these are effective item no. 5 on the Regular Board. It is

12:25 pm but no one appears for the parties. I have therefore perused the

respective records and am proceeding to dispose of the appeals.

2. By means of these two regular first appeals under Section 96 of the

Code of Civil Procedure, 1908 challenge is laid to the impugned judgment

and decree dated 12.7.2001 passed by the trial court whereby the suit of the

respondent no.1/plaintiff was decreed for recovery of Rs.1,37,280/- along

with the interest at the rate of 12% p.a., as the appellants failed to repay the

loan which was granted to Sh. Jitender Kumar, the appellant in RFA

533/2001. With respect to the loan, guarantees were executed by one

Romesh and Sh. Balbir Singh, the appellant in RFA 619/2001. The appeals

arising from one judgment and decree are therefore being disposed of by

this common judgment.

3 The case of the respondent no.1/plaintiff in the trial court was that it

was engaged in finance business and the appellant/defendant no.1 required

finance to purchase a vehicle HNR-2244. Loan of Rs.1 lac was given to the

appellant/defendant no.1 and in consideration of which, defendants executed

the agreement dated 6.4.1994 and also executed the promissory note for

Rs.1,38,000/-. The loan of Rs.1 lac was repayable in 23 equal installments of

Rs.6000/- each over a period of two years ending on 4.5.1996. Appellant

/defendant no.1 paid five installments but failed to pay other installments

RFA No. 533&619/2001 Page 2 of 6
claiming that the vehicle had got burnt and he was pursuing his claim with

the Insurance Company. It transpired that the Insurance Company rejected

the claim of appellant/ defendant no.1 on the ground that the driver did not

carry a valid driving licence at the time of the incident. On account of the

default of the defendants to repay the loan, defendant no.1 being the

principal borrower and the defendants no.2 and 3 being the guarantors, the

subject suit came to be filed. The suit was originally filed as under Order 37

CPC but subsequently it was treated as an ordinary suit.

4 The suit was contested with the defendant nos.1 and 3 filing a joint

written statement and the other guarantor/defendant no.2 Sh. Balbir Singh,

appellant in RFA 619/2001, filing a separate written statement. In the

written statement filed by the defendants no.1 and 3, it was claimed that

there was no registered partnership firm of the respondent no.1/plaintiff and

that the suit was not maintainable because there was an arbitration clause.

Defendant no.2 Sh. Balbir Singh, appellant in RFA 619/2001 pleaded that he

signed the document only as a witness and not as a guarantor.

5 The trial court, after pleadings were completed, framed the following

issues:

“1. Whether the plaintiff is a registered partnership firm and suit
has been filed by a competent person? OPP

2. Whether the suit is barred by limitation? OPD

3. What is the effect of arbitration clause in the agreement? OPD

RFA No. 533&619/2001 Page 3 of 6

4. Whether this court has no pecuniary jurisdiction as alleged by
defendant No.1? OPP/D1.

5. To what amount the plaintiff is entitled? OPP

6. Whether the plaintiff is entitled to interest, if so, at what rate
and on what amount? OPP

7. Relief.”

6 On the issue no.1, the trial court has held that the respondent no.1 was

a registered partnership concern by referring to the certificate of registration

Ex.PW1/1 and the certified copy of form A Ex.PW1/2. This issue has been

correctly decided by the trial court.

7 The second issue was whether the suit was barred by limitation. In this

regard, the trial court has held that with respect to the installment, the same

fell due monthly and those installments which were due within three years

within the date of filing of the suit, were within the period of limitation, and

the suit was accordingly decreed for such installments, and for which, the

relief was prayed. The trial court had rightly referred to Article 36 of the

Limitation Act. I have also referred to the agreement between the parties

exhibited as Ex.PW1/3 and in terms of this agreement, the case clearly falls

under Article 36, inasmuch as there is no automatic termination of the

agreement and no notice of termination of agreement was ever served by

the respondent no.1. Even if, the agreement was to be automatically

terminated for non-payment, surely, it was a right which the respondent

company could have waived so as to continue with the agreement. The trial

court has therefore rightly held the suit to be within limitation The trial court

RFA No. 533&619/2001 Page 4 of 6
has also rejected the stand of the appellant that no amount was received

because it was proved that the appellant/ defendant no.1 purchased an old

truck which was financed with another financer and therefore a sum of

Rs.82,000/- was paid by the respondent no.1 to the previous financer and a

sum of Rs.18,000/- was paid to the previous owner of the vehicle.

8 With respect to the defence of the defendant no.2, the appellant in RFA

619.2001, the trial court has held that plea of the said defendant

no.2/appellant could not be believed that the documents at the time of his

signing them were blank and he signed only as a witness. I note that

signatures of the appellant/defendant no.2 Balbir Singh appeared at the

place of the guarantor and not at the place of the witness. The trial court

has held that there was no reason why the appellant Balbir Singh should not

be held liable because there is no ill will alleged against the respondent no.1.

In this regard, the trial court has rightly given the following findings and

conclusions in para 27, and which I agree with:-

“27. It is the case of the plaintiff that defendant no.2 and 3
stood as guarantors. In this regard, it may be mentioned that
defendant no.2 has nowhere disputed that he signed the
agreement Ex.PW1/3. His only plea is that he never stood a
guarantor, he was called by Sh.P.K. Goel and was told that Sh.
Jitender Kumar Singh was taking a loan from him and that he
should sign the documents as a witness. According to him, he
knows only Urdu language and does not know what was written on
those documents. The contents of the documents were not even
read over to him. No demand notice was served upon him. Here,
it may be mentioned that it has come in cross-examination of
plaintiff that all the three defendants were present when the
contents were explained to the guarantors and at that time,

RFA No. 533&619/2001 Page 5 of 6
witness Sh. Ishwar Singh Lakhra was also present. He
categorically denied the suggestion that signatures of defendant
No.2 were obtained on blank agreement and on pronote or that
defendant no.2 signed the documents as witness and not as a
guarantor. It is pertinent to note that defendant no.3 has nowhere
objected to the execution of the agreement or that he stood as a
guarantor. He has never taken the plea that documents were
blank when he signed the same. Under these peculiar
circumstances, it was incumbent upon defendant No.2 to have
proved that the documents were blank or that he was never
informed about the contents of the documents or that he never
stood as a guarantor. No illwill has been alleged by him against
the plaintiff for which reasons, plaintiff could fraudulently obtained
his signatures on the agreement as guarantor. Rather, it has
come in his cross-examination that plaintiff was known to him for
the last 25 years and during this period, prior to this case, he was
never called by the plaintiff to sign any document. Therefore, it
cannot be presumed that defendant no.2 would have signed the
documents as a witness and not as a guarantor without
understanding the contents of the documents.”

9 This court is not entitled to interfere with the findings and conclusions

of the trial court unless the same are wholly illegal or perverse or cause

grave injustice/prejudice. I do not find any illegality or perversity in the

impugned judgment and decree which calls for any interference in the

appeal. The appeals being devoid of any merit, are dismissed leaving the

parties to bear their own costs. Trial court record be sent back.

March 03, 2011                                   VALMIKI J. MEHTA, J.
ib




RFA No. 533&619/2001                                                Page 6 of 6