* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No. 184/1990
Date of decision : 10.11.2009
IN THE MATTER OF :
SMT.GEETA DEVI & ANR. ..... Appellants
Through: Mr. M.L.Bhargava, Advocate
versus
M/S SANJEEV STEEL INDUSTRIES & ANR. ..... Respondents
Through: Nemo
CORAM
* HON'BLE MS.JUSTICE HIMA KOHLI
1. Whether Reporters of Local papers may
be allowed to see the Judgment? No.
2. To be referred to the Reporter or not? No.
3. Whether the judgment should be
reported in the Digest? No.
HIMA KOHLI, J. (ORAL)
1. The present appeal arises out of a judgment dated 25.9.1989
passed by the learned Additional District Judge in a suit for recovery of a
sum of Rs.30,000/- filed by the appellants against the respondents.
2. The present appeal was admitted vide order dated 6.3.1991.
However, no paper book has been filed by the appellants till date. The trial
court record was also not requisitioned. Vide order dated 17.11.2008, it was
noticed by the Division Bench that the respondents were not served and nor
had the trial court record been requisitioned. The trial court record was
RFA No. 184/1990 Page 1 of 6
directed to be requisitioned through a special messenger. It was reported
that the same was already destroyed on 21.7.2003, in the process of
weeding out of old records. In the order dated 5.2.2009, the submission of
the counsel for the appellants was recorded that he would make efforts to
prepare the appeal paper book on the basis of whatever documents he had.
No paper book has been filed by the appellants till date. Steps were taken
to serve the respondents by ordinary process as well as dasti, but in view of
the affidavit of service filed by the appellants stating, inter alia, that the
respondent No.2, who is the proprietor of respondent No.1 refused to accept
notice, the respondents were deemed to be served. In the absence of the
trial court record and on account of non-filing of the paper book, this Court
has no option but refer to and rely upon the contents of the impugned
judgment alone.
3. As noted in the impugned judgment, the facts averred by the
appellants are that the appellant No.2 gave a loan of Rs.20,000/- on
07.07.1983 by issuing two cheques of Rs.10,000/- each in the name of
respondent No. 1 and the respondents agreed to repay the same with
interest @ 18% p.a. As per the appellants, the respondents paid them
interest upto August 1983 and failed to pay the same thereafter, despite
repeated demands and requests. As a result, the appellants preferred a suit
on 3.7.1986, claiming a sum of Rs.20,000/- from the respondents as the
principal amount and a sum of Rs.10,000/- as interest @ 18% p.a.
w.e.f.7.7.1983 onwards.
4. The aforesaid suit was contested by the respondents, who
entered appearance and filed their written statement. In their written
RFA No. 184/1990 Page 2 of 6
statement, certain preliminary objections were raised with regard to the
jurisdiction of the court stating that the suit was based on two different and
distinct alleged transactions and that the suit was liable to be dismissed
under the provisions of the Money Lending Act and also that the suit was
barred by limitation. On merits, the respondents stated that in the month of
December 1982, the appellant No.2 approached the respondent No.2 with a
request to supply steel tubing of various dimensions and sizes through M/s
Geeta Steel Furniture, Vikas Puri, Delhi. The appellant No.2 advanced a
cheque of Rs.10,000/- in the first week of January 1983, but the respondent
No.2 requested the appellant No.2 to make full payment of the goods he
wanted to have. The appellant No.2 kept delaying the matter for some time
and requested for delivery of the goods on credit. The respondent No.2
refused to part with the steel tubes without the full payment. However, on
the assurance of one Mr.Dinesh Kumar, an employee of the respondents and
a near relation of the appellant No.2, the goods were finally supplied to the
appellants, vide Bill No. 603 dated 7.7.1983 for Rs.30,013/- (Ex.DW-3/1).
Against the aforesaid bill, the appellant No.2 handed over two cheques of
Rs.10,000/- each to the respondent No.2. One cheque for an amount of
Rs.10,000/- was already given by the appellants to the defendants as
advance against the order placed by them. However, on presentation, one of
these cheque of Rs.10,000/- was dishonoured. The respondent No.2 claimed
that it was with great difficulty that he could recover the amount against the
dishonoured cheque.
RFA No. 184/1990 Page 3 of 6
5. On the basis of the pleadings of the parties, the following issues
were framed in the suit:-
“1.Whether the pltff. gave a loan of Rs.20,000/- to the
deft?
2.Whether the pltff.is entitled to charge interest @ 18%
p.a.?
3.Whether this court has no jurisdiction to try this case
as the suit is based on two different and distinct
transactions?
4.Whether the suit is barred by time?
5.Whether the suit is not maintainable because the
petitioners are money lenders and not registered under
the Money Lending Act?
6.Whether the pltff. is entitled to recover the amount in
suit?
7.Relief.”
6. In support of their case, the appellants produced appellant No.2
who examined as PW-1. On behalf of the respondents, four witnesses
appeared. The respondent No.2, proprietor of respondent No.1 appeared as
DW-3. The respondents also summoned and examined Sh.Rakesh Kumar,
Clerk, Central Bank of India, Loha Mandi, Naraina, Delhi, as DW-1 and
Sh.S.K.Gulati, Clerk, Central Bank of India, Ram Tirath Nagar, Jhandewalan,
Delhi, as DW-2 and Sh.Jagat Narain Sharma as DW-4. The trial court arrived
at a finding that the appellants had failed to lead any evidence to establish
that the cheques were given as a loan to the respondents whereas the
respondents had placed on record documents to establish that the goods
were sold to the appellants for a sum of Rs.30,013/- and the same were duly
reflected in the sales tax returns. Thus issues No.1 & 2 were decided
RFA No. 184/1990 Page 4 of 6
against the appellants by holding that the appellants had failed to prove that
a sum of Rs.20,000/- was advanced to the respondents as a loan.
7. Aggrieved by the aforesaid judgment, the appellants have
preferred the present appeal. Counsel for the appellants submits that the
trial court erred in overlooking the submission made on behalf of the
appellants that the appellant No.1 is a housewife whereas the appellant No.2
is a teacher and hence no business transaction could have taken place
between the parties, as claimed by the respondents. His second submission
is that the signatures appearing on Bill No. 603, marked as Ex.DW-3/1 filed
by the respondents was denied by the appellants and hence reliance could
not have been placed by the trial court on the said document, while
returning the findings in respect of issue No.1.
8. The aforesaid submissions made on behalf of the appellants can
only be examined upon scrutinizing the trial court record. As noted above,
except for the impugned judgment dated 25.9.1989, there is no record
available for perusal. The appellants have failed to file the appeal paper
book for the past 18 years. Despite non-filing of the appeal paper book, the
Court had directed summoning of the trial court record on 17.11.2008, as it
was not requisitioned earlier. But it was too late in the day as the trial court
record had been weeded out on 21.7.2003. Despite liberty granted to them
on 17.11.2008, no effort has been made by the appellants to prepare the
appeal paper book on the basis of whatever documents they had. In the
complete absence of any pleadings, documents and evidence, this Court is
unable to examine the impugned judgment in the light of the submissions
made by the appellants. The appellants have none other, but themselves
RFA No. 184/1990 Page 5 of 6
alone to blame for their present predicament. In these circumstances, this
Court has no option but to dismiss the appeal. The appeal is dismissed with
no orders as to costs.
(HIMA KOHLI)
NOVEMBER 10, 2009 JUDGE
mk
RFA No. 184/1990 Page 6 of 6
