The court emphasized the importance of substantiating claims and providing evidence to support defenses in cases involving loan repayment and cheque ownership.

VALMIKI J. MEHTA, J.

C.M. No.43442/2018(exemption)

1. Exemption allowed subject to just exceptions.

C.M. stands disposed of.

RFA No.856/2018 and C.M. No.43441/2018(stay)

2. This Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) is filed by the defendant in the suit impugning the Judgment of the Trial Court dated 03.07.2018 by which the trial court has decreed the suit for recovery of Rs. 20 lakhs given by the respondent/plaintiff to the appellant/defendant as a loan, and this loan amount was secured by the appellant/defendant vide cheque no. 013992 dated 05.03.2011, and this cheque was dishonoured resulting in the filing of the subject suit.

3. The facts of the case are that, the respondent/plaintiff filed the subject suit pleading that he gave a loan of Rs. 20 lakhs to the appellant/defendant for construction of the appellant’s house as also for the tent business being run by the appellant/defendant. It was further pleaded that the appellant/defendant in part-payment, first, gave a cheque of Rs. 3 lakhs on 28.02.2009 which was dishonoured with the remarks 'Funds Insufficient'. Thereafter, another cheque of Rs. 14 lakhs was given by the appellant/defendant to the respondent/plaintiff on 30.08.2009 and the same was also dishonoured on presentation. Ultimately, the subject cheque of Rs. 20 lakhs was given by the appellant/defendant to the respondent/plaintiff on 05.03.2011, and when the same was deposited with the bank, it was returned with the remarks 'Funds Insufficient'. After serving the Legal Notice dated 22.03.2011, the subject suit was filed for recovery of the loan granted of Rs. 20 lakhs alongwith interest @ 12% per annum.

4. Appellant/Defendant contested the suit and pleaded that he had, in fact, had not given the subject cheque to the respondent/plaintiff (Mr. Kehar Singh), but to one Mr. Vijay Singh, who had agreed to assist the appellant/defendant to purchase of a shop for opening of a tent house business. It was pleaded that the respondent/plaintiff, in connivance with Sh. Vijay Singh, had misused the blank cheque given by the appellant/defendant to Mr. Vijay Singh. The appellant/defendant, however, admitted that he had taken various loans from the respondent/plaintiff prior to 23.12.2008 but stated that all such loans stood repaid. The suit was, therefore, prayed to be dismissed.

5. After the pleadings were complete, the trial court framed issues and parties led evidence, and these aspects are recorded in paras 5 to 7 of the impugned judgment, which read as under:-

“ISSUES

5. On the basis of the pleadings, following issues were settled on 28.07.2014:-

(1) Whether the plaintiff is entitled to recover amount of Rs. 20 lacs as claimed from defendant? OPP.

(2) Whether the cheque no. 013992 dated 02.03.2011 was infact the blank, undated cheque given by the defendant to Vijay Singh? OPD.

(3) If yes to issue no.1, Whether the plaintiff is entitled to interest on the said amount, keeping in view the pecuniary jurisdiction of this court? OPP.

(4) Relief.

Plaintiff Evidence

6. In order to prove its case, plaintiff has examined himself as PW1. He has tendered his evidence by way of affidavit Ex.PW1/1 and relied upon the following documents:-

1. The cheque dated 05.03.2011 as Ex.PW1/A.

2. The return memo dated 07.03.2011 as Ex.PW1/B.

3. The copy of legal notice/demand notice as Ex.PW1/C.

4. The postal receipts as Ex.PW1/D & E.

Defendant Evidence

7. In order to prove its case defendant has examined himself as DW1 and Sh. Ashruddin Khan as DW2. Both these witnesses have tendered their evidence by way of affidavit Ex.DW1/A and DW1/B. DW1 has relied upon following documents:-

1. Copy of complaint dated 23.12.2010 as Mark X.

2. Ex.DW1/ Y.

3. Copy of complaint dated 18.09.2010 as mark A.

4. Complaint dated 11.08.2011 as Mark B.”

6. The trial court has decided the issues, as against the appellant/defendant, by observing that the appellant/defendant admitted his signatures on the cheque. The appellant/defendant did not