TaxTMI 
TaxTMI 
2019 (2) TMI 1012
X X X X Extracts X X X X
X X X X Extracts X X X X
....s. 6,00,000/- to the appellant/defendant no.1, and the same was confirmed by the appellant/defendant no.1 by executing an Affidavit-cum-Undertaking dated 13.12.2007 for a sum of Rs. 6,00,000/- . It was pleaded that the appellant/defendant no.1 had issued a Cheque dated 14.11.2008 for a sum of Rs. 80,000/- in favour of the respondent/plaintiff, which was dishonoured twice. When the cheque was dishonoured for the second time, a Legal Notice dated 06.06.2009 was issued to the appellant/defendant no.1, and thereafter a complaint was filed under Section 138 of the Negotiable Instruments Act, 1881. The appellant/defendant no.1 had deposited sums of Rs. 50,000/-, Rs. 40,000/- and Rs. 40,000/-, totaling to Rs. 1,30,000/- in the bank account of the respondent/plaintiff on three separate occasions i.e. December 2008, March 2009 and April 2009. The respondent/plaintiff has therefore filed the subject suit pleading that an amount of Rs. 6,00,000/- has to be recovered as the principal amount and an amount of Rs. 3,90,000/- as interest, and that since Rs. 1,30,000/- stands paid towards interest, now the balance amount due would be Rs. 8,60,000/-. 4. The appellant/defendant no.1 contested the su....
X X X X Extracts X X X X
X X X X Extracts X X X X
....4/11 titled "Priya Ranjan Chauhan Vs. Gaurav Garg, decided on 04.07.2013 by Ms. Niti Phutela, Ld. Civil Judge-01, South, Saket, New Delhi bearing Goshwara No. 206/13, Civil (South). He has relied upon following documents: i. Ex.PW2/1- The certified copy of the statement of DW-1 Sh. Gaurav Garg S/o Sh. Ramniwas Garg dated 11.02.2013, in CS No.74/11 (contains three pages) ii. Ex.PW2/2- The certified copy of original receiving i.e pay order bearing no.143176 of Rs. 1,84,860/- in favour of Hutchison Essar Mobile Services Ltd. Dated 31.01.2007. Both the witnesses were duly cross-examined by the defendants' counsel and thereafter, PE was closed. 6. In the defence evidence, the defendants have examined two witnesses which are as under: (1) DW-1 Sh. Priya Ranjan Chauhan - defendant no.1 himself. In lieu of his examination-in-chief he has deposed by way of affidavit Ex.DW1/1 and has relied upon following document: i. Mark DW1/A- Copy of complaint dated 27.05.2009 written to SHO, P.S. Badarpur. (2) DW-2 HC Anil Kumar- He has produced the copy of DD entry No.52B dated 25.08.2009 as Ex.DW-2/A and order by which the said DD entry was destroyed as DW-2/B." 7. In my opinion, the trial ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....espondent/plaintiff, and not for and by the appellant/defendant no.1, and therefore the payment made for settlement of the Negotiable Instruments Act case under Section 138 filed against the brother of the appellant/defendant no. 1 cannot be taken as discharge of liability of the appellant/defendant no. 1 towards the subject and different loan of Rs. 6,00,000/-. The trial court in my opinion has therefore rightly held against the appellant/defendant no.1 by observing as under:- xxx xxx xxx "In nut shell the case of the plaintiff is that out of the total loan liability of Rs. 6 lacs admitted by the defendant vide affidavit cum undertaking dated 13.12.2007 Ex. P1, the defendant had only paid Rs. 1,30,000/- and the rest of the amount has not been cleared till date on which substantial interest has also accrued. On the other hand the two fold defence of the defendant is that; firstly that his liability was only to the extent of Rs. 4,10,000/- though it is stated to be Rs. 6 lacs in the affidavit Ex. P1. The same was written by him upon asking of the plaintiff and with an oral assurance that he will have to....
X X X X Extracts X X X X
X X X X Extracts X X X X
....o the defendant to raise such a plea. It needs no gainsaying that the validity of document Ex. P1 was the sole issue in contention in the said suit and the same has been held against the defendant. That finding is re-sjudicata and cannot be re-agitated herein. Though one composite issue has been framed herein, however, it takes within its sweeps the out come of the said litigation and the same is a very material fact. To sum up the agreement Ex. P1 is a valid document as per which the defendant had taken a loan of Rs. 6 lacs from the plaintiff. Now, as regards to the payment made, the plaintiff's case is that in total he has paid Rs. 1,30,000/- to the defendant by way of cheques, Rs. 18,500/- in cash and further sum of Rs. 1,70,000/- by way of demand drafts during settlement of the complaint case. The plaintiff though have admitted the payment of Rs. 1,30,000/- but has claimed that the said payment was not made in partial payment towards the loan amount but the said payment was on account of interest accrued on the principle loan amount. However, during cross examination, PW-1 has categorically admitted that the said payment of Rs. 1,30,000/- was made by defendant No.1 as par....