The importance of providing evidence to support factual pleas and the requirement for sufficient reasons for condonation of delay and restoration.

VALMIKI J. MEHTA, J.

C.M. Nos.35478/2016 (restoration), 35479/2016 (condonation of delay) & RSA No.328/2014

1. These applications for restoration and condonation of delay along with the main Regular Second Appeal were argued in the morning by the counsel Mr. Saurabh Kansal. After arguments, it was found that neither the applications nor the main RSA had any substance and therefore the appellant who was present in person took time for giving instructions to his counsel as to whether the appeal was to be pressed on merits or the appellant does not press the applications and the appellant should only seek refund of Rs.25,000/- deposited as pre-conditional costs when the appeal was dismissed vide Order dated 11.2.2015. The matter was passed over.

2. After a pass over the appellant appears in person and states that a judgment be passed on merits. 3. So far as the application for condonation of delay is concerned, it is seen that there is no sufficient reason given for condonation of delay of 552 days in filing of the application for restoration because it is not believable that appellant would not have contacted his counsel right from 11.2.2015 till March, 2016 when he received the notice of the execution proceedings. Merely filing a complaint to the Bar Council of India will not absolve the appellant of not furnishing the requisite explanation for delay and which is a large delay of 552 days. Accordingly, the applications for restoration and condonation of delay are liable to be dismissed because there are no sufficient reasons for condonation of delay and restoration. However, even on merits I have heard the counsel for the appellant.

4. Appellant is the defendant in the trial court. The subject suit was filed by the respondent/plaintiff for recovery of Rs.2 lacs given as loan to the appellant/defendant. Appellant/defendant admitted that he received the loan but the defence was that the loan was repaid. However the appellant/defendant failed to file any proof whatsoever of the loan having been repaid and accordingly this issue was decided against the appellant/defendant by the courts below. Trial court, in this regard, has made the following salient observations:-

“10. ISSUE No.1: Whether the plaintiff is entitled for decree of recovery of Rs.2,00,000/- along with interest and pendentelite interest on the principle amount @ 24 % p.a. as prayed for in the plaint? The case of the plaintiff is that he advanced a personal loan of Rs 2 Lac to the defendant which the defendant agreed to return within two years with interest. The plaintiff has duly proved the pro-note & written acknowledgment as Ex PW1/1 & 2. The defendant has not disputed the acceptance of loan from the plaintiff and during course of his cross examination admitted that he took a loan of Rs 2 lac from the plaintiff for period of one year in September, 2009. The defense put forth by the defendant is that he has already re-paid the loan amount taken by him from the plaintiff.

11. However, in his affidavit Ex. D1, the defendant has testified that he has returned the loan amount to plaintiff on 03.05.2012 after he sold the property of his wife Smt. Madhu Rani. However, the defendant has not placed any document on record to prove that he has sold the property of his wife to re-pay the loan. The defendant has also not produced any receipt showing the payment given by him to the plaintiff on 03.05.2012. In absence of any proof of payment by the defendant to the plaintiff it cannot be believed that the loan taken by the defendant stands re-paid.

12. The defendant has argued that the plaintiff has failed to disclose from which source he managed Rs 2 lac, the plaintiff did not reflect the payment of loan in his ITR and he is habit of filing false & frivolous cases against numerous persons. Therefore, the plaintiff is not entitled to nay claim against the defendant. As stated above, the defendant has admitted to have taken a loan of Rs 2 Lac as such the non declaration by the p