The court emphasized the importance of contemporaneous documentary evidence and the conduct of the parties in determining the nature of the transaction.

PRADEEP NANDRAJOG, J.

CM No.1523/2015

For the reasons stated in the application the delay of 9 days in filing the appeal is condoned.

RFA (OS) No.11/2015

1. Mediation has failed and thus we have proceeded to hear arguments in the appeal. Learned counsel for the appellant urges that the respondent never gave the cheque in question to the appellant, as pleaded by her in the plaint. Learned counsel urges that the falsity of the stand of the respondent is evidenced by the fact that in her affidavit by way of evidence, Ex.PW-1/A, tendered by way of examination-in-chief she deposed that in consultation with her husband she gave the cheque. Learned counsel urges that in cross-examination she admitted that the cheque in question was signed by her husband. Counsel urges that in the plaint she pleaded that she gave the cheque in presence of her husband but did not depose to said fact in her affidavit by way of evidence.

2. We have put to learned counsel for the appellant as to what is the relevance of said arguments, and the answer is that it falsifies the case pleaded by the respondent.

3. To appreciate the argument (in fact its absurdity) relevant facts would be that the respondent sued the appellant for recovery of principal debt in sum of Rs.15,00,000/-(Rupees Fifteen Lacs only) and Rs.6,90,000/-(Rupees Six Lacs and Ninety Thousand only) towards pre-suit interest calculating the same @ 24% per annum.

4. As per the respondent she advanced a friendly loan to the appellant by cheque No.44147 dated December 05, 2005 drawn on ING Vysya Bank in the presence of her husband. She pleaded that it was orally agreed that the amount would be refunded with interest @ 24% per annum and that the appellant returned to her Rs.5,00,000/-(Rupees Five Lacs only) on May 19, 2006 vide cheque No.022026 drawn on Lord Krishna Bank Ltd. and another sum of Rs.5,00,000/-(Rupees Five Lacs only) on December 13, 2007 vide cheque No.18025 drawn on Standard Chartered Bank, which cheques were honoured when presented for encashment. She pleaded that the appellant started avoiding her and did not return the balance loan amount in sum of Rs.15,00,000/-(Rupees Five Lacs only) nor paid interest on the loan amount. In the written statement filed by the appellant he admitted having received Rs.25,00,000/-(Rupees Twenty Five Lacs only) vide cheque No.44147 dated December 05, 2005 drawn in ING Vysya Bank but claimed that the cheque was issued by the husband of the respondent.

5. In the written statement the appellant pleaded that the money was received as advance rent for five months, with agreed monthly rent being Rs.5,00,000/-(Rupees Five Lacs only) for his property No.115, Sainik Farms, New Delhi which husband of the respondent had agreed to take on rent. He pleaded that neither the respondent nor her husband shifted to the property in question. He pleaded that he was entitled to retain Rs.25,00,000/-(Rupees Twenty Five Lacs only) towards rent for five months. Appellant admitted having issued two cheques in sum of Rs.5,00,000/-(Rupees Five Lacs only) each in the name of the respondent from his accounts maintained with Lord Krishna Bank and Standard Chartered Bank. He explained return thereof as a good will gesture.

6. It is apparent that the issue which had to be decided by the learned Single Judge was : Whether Rs.25,00,000/-(Rupees Twenty Five Lacs only) was received by the appellant towards loan or towards 5 months advance rent for property No.115, Sainik Farms, New Delhi.

7. View taken by the learned Single Judge is in favour of the respondent. Faced with no documentary evidence contemporaneous when appellant received Rs.25,00,000/-(Rupees Twenty Five Lacs only) from the respondent by way of a cheque, and it being a case of : a word of mouth versus a word of mouth, the learned Single Judge has applied the test of prudence and natural course of conduct required to be followed by humans of ordinary prudence. The conduct of the appellant in not writing any letter