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Judgment
Mr. Justice J.C. Upadhyaya
The challenge in this appeal is to the judgment and decree dated 18.08.1994, rendered by learned Judge of the City Civil Court, Ahmedabad (Court No. 10) in Civil Suit No. 833/86 whereby the afore mentioned suit filed by the appellants herein came to be dismissed.
2.The brief facts leading to the suit before the Trial Court are that:-
2.1 The appellant-plaintiff No. 1 was Trust and the appellant-plaintiff nos. 2 & 3 were the Trustees of that said Trust. Plaintiff No. 1 Trust used to do financial transactions somewhere in the year 1983-84. The trust was closed and the authority to recover assets and dues of the Trust was assigned to appellant-plaintiff No. 4.
2.2 It is the case of the plaintiffs that respondent-defendant was in need of money, and therefore, he met plaintiff No. 2 on 28.05.1983 and demanded Rs.30,000/- towards Sharafi amount and assured to return the amount within two months. Upon such assurance being given, Plaintiff No. 1-Trust paid Rs.30,000/- to the defendant by account payee cheque No. 188331 of Madhavpura Mercantile Co.Operative Bank Ltd in the name of Ambica Structural and Engineering Works on 28.05.1983.
2.3 It is the case of the plaintiffs that thereafter, on 19.09.1983, defendant again demanded Rs.30,000/- more and Rs.30,000/-were paid to the defendant by a Bank draft No. 008713 of Madhavpura Mercantile Co.Operative Bank Ltd. drawn on Bombay Branch in the name of the defendant dated 19.09.1983.
2.4 It is the case of the plaintiffs that thereafter, as the defendant failed to return the total amount of Rs.60,000/-, notice was given to the defendant to which he gave evasive reply and hence, suit was filed to recover in all Rs.65,000/-(Rs.60,000/- principal amount and Rs.5000/- by way of interest).
The respondent-defendant resisted the suit by filing his written statement at Exh.11 interalia denying all the avermnents made by the plaintiffs in their plaint and put up defence that he had invested Rs.60,000/- by way of fixed deposit in the firm called R.Natvarlal and above referred cheque in question as well as draft in question were issued to him by way of returning his amount of deposited. He denied the fact pleaded in the plaint that since he was in need of money, he had borrowed Rs.60,000/- from the Plaintiff No. 1- Trust. He denied that he was dealing in Stainless Steel Sheets business.
The Trial Court framed issues at Exh.33. Before the Trial Court, Plaintiff No. 2 came to be examined at Exh.39. No more witness was examined on behalf of the plaintiffs. The defendant was examined at Exh.68. No witness was examined by him. Both the sides produced documentary evidence before the Trial Court.
Appreciating and evaluating the evidence on record and considering the submissions advanced on behalf of both the sides, the Trial Court came to the conclusion that the Plaintiff No. 1 was a Trust and Plaintiff Nos.1 & 2 were its Trustees. However, Trial Court disbelieved the case of the plaintiffs that since the Plaintiff No. 1-Trust was closed, the plaintiffs had assigned the dues of the Plaintiff No. 1-Trust to Plaintiff No. 4 for recovering the same from the defendant. The Trial Court disbelieved the case of the plaintiffs that the defendant had borrowed in all Rs.60,000/- by way of advance from the Plaintiff No. 1-Trust and the same amount was paid by an account payee cheque as well as by draft respectively. The Trial Court came to the conclusion that there was no privity of contract between the plaintiffs and defendant. The Trial Court accepted the defence of the defendant that Rs.60,000/- in question were the amount of fixed deposit, which he had deposited before the firm called R.Natwarlal and by virtue of cheque in question and the draft in question, what was paid to him was his own deposited amount. Ultimately, the Trial Court dismissed the suit of the plaintiffs and hence the appeal.
Mr.Dhaval Shah, learned advocate for plaintiffs- appellants, at the outset, submitted that the Trial Court committed serious error in not properly appreciating the oral and documentary evidence on record. It is submitted that the plaintiffs produced cogent and reliable documentary evidence in the form of certificate issued by the concerned bank produced at Exh.42 and 43 regarding the cheque transaction and the draft transaction and also produced relevant books of account in support of said transaction.
6.1 Mr.Shah, learned advocate for the plaintiffs- appellants asserted that as against such cogent and clear oral and documentary evidence, not only the Trial Court disbelieved such evidence, but also, relied upon only the oral say of the defendant that he had deposited Rs.60,000/- in the firm called R.Natvarlal and his deposited amount to the tune of Rs.60,000/- were returned back to him by virtue of disputed cheque and the disputed draft.
6.2 Mr.Shah learned advocate for the plaintiffs- appellants contended that the bare perusal of impugned judgment rendered by the Trial Court would reveal that the Trial Court appeared to have been swayed away by a letter Exh.55 and came to the incorrect conclusion. That letter dated 06.12.1984, Exh.55, came to be issued to the defendant by a partnership firm called R.Natvarlal. There is no dispute that in the said letter referring to the said disputed cheque and disputed draft, it has been stated that those instruments were given to the defendant by said R.Natvarlal, but, in fact the defendant failed to prove his basic defence regarding any amount having deposited by him in that said firm R.Natvarlal. It is submitted that as against that the plaintiffs relied upon the certificate Exh.42 and 43 issued by concerned bank whereby the drawer of the disputed cheque and the disputed draft is said to be Plaintiff No. 1-Trust. There is no evidence whatsoever on record to come to the conclusion that the disputed draft and disputed cheque were issued by R.Natvarlal firm.
6.3 Mr.Shah learned advocate for the plaintiffs- appellants read over relevant oral evidence of the Plaintiff No. 2 and the defendant as well as relevant documents and ultimately, submitted that the Trial Court erred in dismissing the suit of the plaintiffs. It is submitted that the appeal may be allowed and the claim made by the appellants-plaintiffs in the suit be decreed in toto.
None appeared for the respondent-original defendant though he is reported to have been served with the notice by R.P.A.D.
Perusing the impugned judgment rendered by the Trial Court so also the papers contained in the paper-book supplied by Mr.Shah, learned advocate for the appellants-plaintiffs, it becomes clear that in all Rs.60,000/- were received by the defendant. It is pertinent to note that the defendant does not dispute the receipt of Rs.60,000/-. There is also no dispute that Rs.60,000/- were paid to the defendant by virtue of two negotiable instruments viz. cheque dated 28.05.1983 bearing No. 188331 as well as draft dated 19.09.1983 bearing No. 008713. Considering the certificate issued by Madhavpura Mercantile Co.Operative Bank Ltd. at Exh.42 and 43, both these instruments were drawn by Plaintiff No. 1- Trust. Only the dispute is as to whether Rs.60,000/-, which the defendant received were by way of advance or by way of return of his deposited amount as contended by the defendant.
I have minutely perused the oral evidence in the form of deposition of Plaintiff No. 2 as well as the deposition of defendant. The plaintiffs, in support of their case that the defendant was in need of money, and therefore, he borrowed in all Rs.60,000/- from the Plaintiff No. 1-Trust has produced the cogent evidence in the form of certificates issued by the bank Exh.42 and 43 together with the documentary evidence in the form of relevant entries contained in the account books maintained by Trust as well as maintained by Plaintiff No. 4. To meet with such evidence, defendant came forward with a defence that he had deposited in all Rs.60,000/- in a partnership firm called R.Natvarlal and what was returned to him (i.e.Rs.60,000/-) by way of disputed cheque and the disputed draft was his own investment amount. As stated above, brushing aside the case of the plaintiffs and the oral and documentary evidence produced by the plaintiffs, the Trial Court relied upon mere oral defence of the defendant that the said amount was part of his fixed deposit. It is pertinent to note that it is not the defence of the defendant that disputed amount i.e. Rs.60,000/- were deposited by him in the Plaintiff No. 1-Trust. His defence was that he had deposited his money in a firm called R.Natvarlal. Perusing the entire deposition of Plaintiff No. 2, so also the documentary evidence on record, nothing transpires that there was any nexus between the Plaintiff No. 1-Trust as well as R.Natvarlal firm. The suggestion was put in the deposition of the Plaintiff No. 2 on behalf of defendant that he was one of the Trustees in the Trust as well as he was one of the partner in the said firm, which was categorically denied by him. Except such suggestion being put on behalf of defendant during the course of deposition of Plaintiff No. 2., which though came to be denied, no evidence worth the name is adduced by the defendant to show that there was any nexus between the two concerns viz. Trust and the firm.
However, it transpires that the Trial Court placed much emphasis upon letter Exh.55, to discard the oral and documentary evidence of the plaintiffs. The bare procedure of the letter Exh.55 dated 06.12.1984 would revel that it was addressed to the defendant by R.Natvarlal firm. There is no dispute that in the said letter, it has been stated that Rs.30,000/- by way of disputed cheque and Rs.30,000/- more by way of disputed draft were paid to the defendant by said firm. By virtue of said letter what was conveyed to the defendant was that the said amount of Rs.60,000/- as well Rs,20,000/-(In all Rs.80,000/-) to be returned within 15 days from the date of receipt of said letter, otherwise, firm R.Natvarlal would take legal action against the defendant. It is pertinent to note that the averments made in letter Exh.55 are quite contrary to the fact as stated in the certificate by the concerned bank Exh.42 and 43.
As seen above, considering the certificates, both the instruments came to be drawn in favour of the defendant by Plaintiff No. 1-Trust and not by R.Natvarlal & Firm. If at all the defendant was relying upon this letter Exh.55 to show that he had transaction with R.Natvarlal & Firm then he could have produced relevant documents from the concerned bank to show that in fact those negotiable instruments were drawn by R.Natvarlal & Firm, but, nothing whatsoever was done. Moreover, relying upon the letter Exh.55, what the defendant contended was that as a matter of fact, he had deposited in-all Rs.1,00,000/- by way of investment in R.Natvarlal & Firm. The Trial Court in the impugned judgment accepted such bare words of the defendant regarding the investment. It is pertinent to note that the defendant in his deposition agreed to produce documentary evidence to show that he had placed fixed deposit in the R.Natvarlal & Firm, but, no such document was ever produced by the defendant before the Trial Court. Thus, the fact remains that except the bare words of the defendant that the amount, which he was paid (i.e. Rs.60,000/-), was return of his investment cannot be said to have been duly proved. As against this, the plaintiffs by cogent, oral and documentary evidence successfully proved that the defendant borrowed in-all Rs.60,000/- from the Plaintiff No. 1-Trust and pursuant to that the disputed cheque and the disputed draft were given to the defendant, to the drawn by the Plaintiff No. 1- Trust.
It is true that Plaintiff No. 1-Trust stopped functioning from 30.06.1983. The disputed cheque is prior to that date, but the, disputed draft is dated 19.9.1983. The Trial Court, therefore, in the impugned judgment observed that it was a very strange thing that the Plaintiff No. 1-Trust, though stopped functioning yet issued a draft, in favour of the defendant. However, as revealed from the evidence on record, the same was a family Trust and at the time when it stopped functioning or when it came to be closed, no writing was executed. Moreover, considering bank certificates and more particularly certificate Exh.43 about the disputed draft, it can simply be said that even after the closure of the Trust, the bank account continued in the name of Trust. Therefore, I am of the opinion that mere fact that the draft bears the date subsequent to the closure of the Trust, that shall not come in the way of the plaintiffs.
Seen in the above context, I am of the opinion that the Trial Court erred in dismissing the suit of the plaintiffs. The suit deserves to be allowed as prayed for. The plaintiffs successfully proved its case as pleaded by them in the plaint. Resultantly, impugned judgment and decree rendered by the Trial Court deserve to be set aside by allowing the appeal.
For the foregoing reasons, the appeal is allowed and impugned judgment and decree dated 18.08.1994, rendered by learned Judge of the City Civil Court, Ahmedabad (Court No. 10) in Civil Suit No. 833/86, dismissing the said suit of the appellants-plaintiffs is set aside. The appellants-plaintiffs are held to be entitled to recover Rs.65,000/- from the respondent-defendant with running interest @ 6% per-annum from the date of the suit till the realization. Considering the facts and circumstances of the case, there shall be no order as to costs.