TaxTMI 
TaxTMI 
2026 (8) TMI 1588
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.... treatment of his ailing mother, as well as, for his certain personal requirements. The Plaintiff arranged Rs. 6,00,000/-and gave it to the Defendant, in cash on 27.02.2020 as a friendly loan, on an assurance that the Defendant would return the money on or before 2022. 5. The Plaintiff thereafter, visited the office of the Defendant in March, 2022, to ask for the return of the friendly loan, but he sought time by expressing financial difficulties. He, however, gave a cheque bearing No.314023 dated 02.05.2022 for Rs. 6,00,000/-, drawn on ICICI Bank, Rajinder Nagar Branch, New Delhi, in discharge of his liability. 6. The cheque, on presentation on 10.05.2022 was returned unpaid vide Return Memo dated 11.05.2022, with the remarks "image not clear, present again with paper". The Plaintiff upon enquiry from the Banker, was informed that since it was an old cheque, it would not be cleared even on re-presentation. 7. Thereafter, the Plaintiff again demanded the money from the Defendant, but he gave no satisfactory reply. A Legal Notice dated 26.05.2022 was served upon the Defendant by speed post, which was delivered on 27.05.2022, despite which the Defendant failed to pay the loa....
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....dia Post tracking report as Ex. PW1/F. 16. The Defendant appeared as DW-1 and tendered his affidavit of evidence, exhibited as Ex. DW1/A. The Defendant did not rely upon any documentary evidence, in support of his defence. 17. Upon appreciation of the evidence, the learned District Judge concluded that the cheque in question had indeed been issued by the Defendant. Although the Defendant claimed that the cheque had been misplaced, his evidence did not substantiate this defence. It was accordingly, held that the Plaintiff had established the advancement of the loan of Rs. 6,00,000/-, which was further supported by the issuance of the cheque for the same amount. The suit was, therefore, decreed for Rs. 6,00,000/- along with pendente lite and future interest @9% p.a. 18. Aggrieved by the aforesaid Judgement and Decree, the Appellant filed the present Appeal to set aside of the Impugned Judgment and Decree and in the alternative, prayed that the Suit may be remanded to the learned Trial Court, for fresh consideration. 19. The grounds of challenge are that his defence of the cheque being misplaced, was established from the circumstances and material emerging from the Respond....
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....issued towards the alleged liability in May, 2022. 26. It was submitted that the inconsistency in the Plaintiff's own pleadings and deposition and his cross-examination, have not been considered. Reliance is placed on Basalingappa v. Mudibasappa, (Supra). 27. Furthermore, the service of Legal Notice could not have been presumed by reference to Section 27 of the General Clauses Act, 1897, notwithstanding his categorical denial of receipt, on oath. It was required to be determined with reference to the evidence led in the present proceedings. 28. Reliance has been placed on C.C. Alavi Haji v. Palapetty Muhammed, (2007) 6 SCC 555, to assert that the proceedings under Section 138 of the Negotiable Instruments Act, could not have been mechanically applied to the civil suit. 29. The award of pendente lite and future interest at 9% per annum, is also challenged on the ground that there was no oral or written Agreement between the parties, about any rate of interest. The discretion under Section 34 CPC was exercised, without sufficient regard to the disputed nature of the underlying transaction. 30. The Appellant also disputes the territorial jurisdiction of the learned Tria....
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....en returned on account of being an old cheque and on the ground of "image not clear, present again with paper." 39. While the Defendant had asserted that this proves that the cheque was an old cheque, which corroborates his case, but it is otherwise. The cheque had been given by the Defendant and it was for him to explain how old the cheque was. 40. Furthermore, it could have been easily done by him by presenting the cheque book from which the cheque in question, had been issued. It is also a normal practice for a person issuing a cheque, to make a corresponding entry in the index of the cheque book. Had the cheque gone missing, there is no way that the Defendant would not have come to know about it. 41. It has been rightly held by the learned District Judge that though the Defendant had tried to wriggle out of the cheque which pertained to him, by asserting that it was misplaced, but had failed to corroborate his claim by any cogent evidence. The only conclusion from the evidence of the Plaintiff and the Defendant that can be drawn is that in fact, the Defendant had handed over the cheque of Rs. 6,00,000/- to the Plaintiff. 42. Even if the claim of the Defendant, is ac....
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....v. P. Balasubramanian (2021) 5 SCC 283. 48. Once it is established that the cheque had been handed over by the Defendant, he cannot deny the liability on the specious grounds as claimed by him; rather the cheque corroborates the case of the Plaintiff that the Defendant had been given a friendly loan in discharge of which, the impugned cheque Ex.PW-1/B had been issued. 49. The Defendant had further tried to rebut his liability by asserting that he was a Government employee and was well placed and there was no financial constraints for him, to take the loan. His mother was also getting a family pension and there was no occasion for the loan to have been taken. 50. However, merely because the Defendant was employed, cannot be a circumstance to say that he could not have required a lump sum amount of Rs. 6,00,000/-, for his financial exigency. The Defendant's mere assertion that he had sufficient funds, does not discredit the taking of loan by him especially in the light of the cheque, which has been proved to have been issued by him. 51. The Appellant sought to contend that while the Plaintiff's pleaded case in Paragraph 4 of the plaint was that the cheque was handed over ....