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2017 Supreme(Bom) 1489
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT GOA
C.V. BHADANG, J.
Dr. Mrunal Bhagat - Appellant
Versus
Merle Irene Carvalho - Respondent
First Appeal No. 63 of 2010
Decided On : 18-09-2017
For the Appellant :Guru Shirodkar, Advocate.
For the Respondent:V.A. Lawande, Advocate.
The main legal point established in the judgment is the requirement to establish the nature of the transaction (loan or gift) based on the evidence presented, and the court's refusal to enforce an agreement with an immoral purpose.
Headnote:
friendly loan - Recovery of Loan - [Indian Contract Act, 1872 - Section 25, Section 23, Section 17, Section 23, Section 10, Section 11, Section 16, Section 18, Section 20, Section 21, Section 22, Section 24, Section 27, Section 26, Section 19, Section 15, Section 14, Section 12, Section 13, Section 9, Section 8, Section 7, Section 6, Section 5, Section 4, Section 3, Section 2, Section 1] - The court discussed the appellant's claim of friendly loan and the respondent's claim of gift, analyzing the evidence of letters and gift certificates. The court found that the appellant failed to establish that the amount was advanced by way of a friendly loan and dismissed the suit.
Fact of the Case:
The appellant, an American citizen, claimed to have advanced a 'friendly loan' to the respondent no.1 for various amounts from 2002 to 2005, totaling Rs. 98,40,994. The respondent no.1 denied requesting any friendly loan and claimed the amounts were gifted by the appellant.
Finding of the Court:
The court found that the appellant failed to establish that the amount was advanced by way of a friendly loan and dismissed the suit.
Issues: The main issues were whether the appellant proved the loan and whether the respondent proved that the amounts were gifted by the appellant.
Ratio Decidendi: The court analyzed the evidence of letters and gift certificates and found that the appellant failed to establish that the amount was advanced by way of a friendly loan.
Final Decision: The Appeal was dismissed with no order as to costs.
1. The challenge in this Appeal, is to the judgment and decree dated 25.02.2010, passed by the learned Senior Civil Judge at Vasco-Da-Gama in Special Civil Suit No. 23/2006/B. By the impugned judgment, the suit filed by the appellant/plaintiff for recovery of an amount of Rs. 98,40,994/- from the respondents/defendants, has been dismissed.
2. The brief facts necessary for the disposal of the Appeal may be stated thus: The appellant is an American Citizen and is married to Mrs. Irene Fernandes Bhagat. The appellant is of Indian origin and the appellant as well as his wife, regularly visit Goa and stay in their bungalow at Dona Paula. Julie Carvalho is the sister of the wife of the appellant. The respondent no.1 happens to be the daughter of Julie Carvalho. The respondent no.1 was married to the respondent no.2 somewhere in October, 2005 and at the relevant time was staying at Chicalim, Mormugao, Goa. The respondent no.1 was working as a Teacher in St. Andrew's High School at Vasco. Her mother was working as an office staff in the said School. The respondent no.1 lost her father somewhere in the year 1988. Melroy Carvalho, who is the brother of respondent no.1, is without any gainful employment. Prior to her marriage, respondent no.1 was staying with her mother and brother, Melroy Carvalho. The appellant got acquainted with the respondent no.1 during his visit to Goa and in fact, the respondent no.1 was introduced to the appellant by his wife, the respondent no. 1 being her niece.
3. It is the material case of the appellant that somewhere in August 2002, the respondent no. 1 requested the appellant to advance her a “friendly loan” of Rs.5 lakhs for purchase of a flat at Porvorim. She assured to repay the amount within a period of three years. Acting on the request of the respondent no. 1, the appellant advanced her a loan of Rs.5 lakhs by way of cheque from his NRE Savings Account No.30631. The respondent no. 1 encashed the cheque on 17.08.2002 by crediting the amount to her Bank Account.
4. Subsequently, somewhere in November 2002, the respondent no. 1 again requested the appellant for a friendly loan of Rs.1,80,000/-, which she said was required by her to repay one Sita D'Souza. The respondent no. 1 had represented, that she will repay the amount, alongwith the amount of Rs.5 lakhs. Again, acting on the said representation, the appellant paid Rs.1,80,000/- to the respondent no. 1 from the aforesaid NRE Account.
5. Again, in the year 2004, the respondent no. 1 represented the appellant that she want to buy a bigger flat at Porvorim and requested for further loan, which she promised to repay by October, 2005 and assured that if, she fails to do so, she would pay interest thereon at the rate of 18% per annum with quarterly rests. Acting on the said representation, the appellant advanced an amount of Rs.25,76,850/- to the respondent no. 1 in the year 2004, comprising of Rs.22,16,850/- by way of a cheque from his NRE Account and an amount of 8,000/- USD (equivalent to Rs.3,60,000/- at the then prevailing rate of Rs.45/- per USD).
6. According to the appellant, at the request of the respondent no. 1, out of the amount of Rs.22,16,850/-, an amount of Rs.6 lakhs was paid in favour of one Harish Salgaonkar and Rs.6,16,850/- in favour of Mapusa Bank. This is not the end of the story. After availing the aforesaid loan amount, the respondent no. 1 again represented the appellant that she proposes to go to UK to undergo a specialised course in Travel and Tourism and one Mr. Gomes had assured to provide all assistance to her in getting admission to the said course. The respondent no. 1 represented to the appellant that in order to facilitate her to obtain visa, the respondent no. 1 had to satisfy the Authorities that she had at her disposal an amount of Rs.40 lakhs or assets worth Rs.40 lakhs and therefore, further requested the appellant to pay Rs.40 lakhs, which she promised to return on acquiring the visa. Accordingly, the appellant
