RSA 279/2015 Page 1 of 6

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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RSA 279/2015

Date of Decision: 23.03.2016

HARISH DUBEY

..... Appellant

Through:

Mr.K.P.Tomas, Advocate.

versus

ANKUR JAIN

..... Respondent

Through:

Mr.Vikrant Arora and Mr.Ashok

Kumar Sharma, Advocates.

CORAM:

HON'BLE MR. JUSTICE ASHUTOSH KUMAR

ASHUTOSH KUMAR, J. (ORAL)

1.

The appellant has challenged the judgment passed by the

District & Sessions Judge (North-West), Rohini Courts, Delhi in RCA

No.20/2014 on 29.05.2015 whereby the judgment and decree of the

Trial Court dated 22.03.2014 passed in Suit No.146/2012 (filed by the

respondent) whereby the suit was decreed, was upheld and affirmed.

2.

The respondent had filed a suit bearing No.146/2012 seeking

recovery of Rs.1 lakh with interest at the rate of 12% per annum and

the cost of the suit.

3.

The case of the respondent/plaintiff is that because of the

appellant/defendant being his neighbour and on friendly terms with

him, Rs.1 lakh was given as loan to him in the month of August, 2011.

The appellant/defendant had assured that the amount would be

returned to him soon. The first demand for return of the loan amount

was made by the respondent/plaintiff in November, 2011 when he

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required money for purchase of a car. The appellant/defendant did not

pay the amount, showing his inability and he sought some more time.

Again a demand for repayment was made in the month of January,

2012 when the respondent/plaintiff had to get his child admitted in a

school which required lumpsum expenses. On that occasion also,

money was not returned. Then, finally, in March, 2012 when the

respondent/plaintiff reminded the appellant of his obligation and

requirement to return the money, it was refused point blank.

4.

Hence the suit.

5.

Before the Trial Court, the respondent/plaintiff examined

himself as PW-1 and also filed his affidavit (Exh.PW-1/A). Neelam

Jain, wife of the respondent/plaintiff (PW-2) supported the case of the

respondent/plaintiff.

6.

The appellant/defendant examined himself as DW-1 and filed

his affidavit (Exh.DW-1/A).

7.

The factum of the appellant being the neighbour of the

respondent/plaintiff and residing in the same building was admitted by

the appellant. The appellant has denied of his having taken any

friendly loan from the respondent/plaintiff. Appellant also claims to

have lodged a complaint with the Drugs department against the

respondent; that being the sole reason for the respondent to have filed

a case against the appellant.

8.

The Trial Court, however, decreed the suit, taking into account

that the fact of grant of loan had been proved by the oral testimonies

of the respondent (PW-1) and his wife (PW-2). The Trial Court was of

the opinion that even in the absence of documentary evidence, friendly

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loan having been advanced by the respondent to the appellant could be

presumed as there was no discrepancy in the deposition of either PW-

1 or PW-2 for the Court to disbelieve them. The aforesaid witnesses

were not cross-examined with respect to their capacity to advance loan

or of proving the bank account, as well as the demand notice for return

of the loan. The Trial Court took the view that even if the loan amount

is not reflected in the Income Tax Returns of the respondent/plaintiff,

that by itself would not render the claim of the respondent/plaintiff

nugatory or be taken as an illegal transaction which could not have

been enforced. The opinion of the Trial Court was reinforced by the

fact that if there were lack/paucity of evidence for the claim of the