ORDER :

Goutam Bhaduri, J.

Heard.

1. The present appeal is against the impugned judgment and decree dated 05.03.2022 passed by the 8th Additional District Judge, Durg in Civil Suit No.16-B/2015, whereby the suit filed by the appellant for recovery of Rs.17 Lakhs with interest @ 11.50% with quarterly rest, was dismissed.

2. Pleading as made would show that the plaintiff stated that the defendants Sukhvir Singh Raghav, defendant No.1 and Dhurendra Singh Raghav, defendant No.2 are brothers. On 29.12.2013, they approached the plaintiff on the ground that they need certain loan for six months in order to facilitate their business of seeds. The plaintiff stated that he did not have the amount, as such, looking to the relation inter se, wanted to help and pledge his FDR of Rs.18 Lakhs in the bank and obtained Rs.17 Lakhs as loan. The plaintiff further stated that instead of issuing the cheque in the name of the defendants at their request, since it might take few days for clearance, as such, at the request of the defendants, a self cheque, which was endorsed in the name of the defendant No.2 was issued and accordingly, an amount of Rs.17 Lakhs was received by the defendant No.2. The plaintiff further states that he did not repay back the amount till December, 2014, as such, the legal notices were sent, but, it remained unserved and amount was not repaid. Consequently, a civil suit was filed for recovery.

3. The defendants in their written statement have denied the entire averments of the plaint. It was stated that on the request of the plaintiff, since he was a senior citizen and aged person and Rs.17 Lakhs was to be withdrawn from the bank as also considering the incident of burglary and the loot, which may take place, plaintiff asked for support and in order to support him, defendant No.2 went to bank along with the plaintiff and withdrew an amount of Rs.17 Lakhs on a self cheque and gave the amount to the plaintiff. Issuance of legal notice was also denied by the defendants, so dismissal of claim was proposed.

4. The learned Additional District Judge has framed four issues and finding was given in negative that the plaintiff is not entitled for recovery of Rs.17 Lakhs from the defendants. The plaintiff on their behalf examined himself and one Anand Prakash, a person from the Bank of India, one Vijay Laxmi Sharma, who was a witness to the loan and Dr. D.K. Thakur. The defendants examined themselves. The learned trial Court, after evaluating the evidence, recorded a finding that no loan was advanced by the plaintiff to the defendants and dismissed the suit. Hence, this appeal.

5. Learned counsel appearing for the appellant would submit that the learned trial Court completely misdirected itself to evaluate the evidence, as the plaintiff, who was a senior citizen of more than 77 years, at the time of filing suit, at the request of the defendants, obtained loan by pledge of his FDR with the bank. He would further submit that after the money was received, a cheque was endorsed in favour of the defendant No.2, who obtained cash from from the bank, never handed over the cash to the plaintiff as alleged. He would further submit that the learned trial Court mainly went on the issue that no income tax return was placed to show advancement of loan, but failed to take into account a self cheque which was endorsed in favour of the defendant No.2. He would also submit that the defendants failed to deny the legal presumption, which the trial Court has completely lost its sight. Therefore, the case may be decreed in favour of the plaintiff.

6. Per contra, learned counsel appearing for the respondent No.1 would submit that according to the plaintiff, the entire amount of loan was given to the defendant No.1, but, there is no document to this effect that such loan was ever granted. It is alleged that the defendant No.2 was working as an agent of defendant No.1, who obtained the amount, but the evidence placed before the Court would show that it was only on