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Smt.Geeta Devi & Anr. vs M/S Sanjeev Steel Industries & … on 10 November, 2009

Delhi High Court
Smt.Geeta Devi & Anr. vs M/S Sanjeev Steel Industries & … on 10 November, 2009
Author: Hima Kohli
*             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
 

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