TMI Blog2019 (2) TMI 1012X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 6,00,000/- - The trial court has therefore rightly held against the appellant/defendant no.1. The trial court has rightly held that the loan amount was of ₹ 6,00,000/-, and that the appellant/defendant no.1 had only repaid a sum of ₹ 1,30,000/- and that the appellant/defendant no.1 did not pay any other amount as was contended by him. The Suit therefore has been rightly decreed for a sum of ₹ 4,70,000/- alongwith interest @ 12% per annum simple - appeal dismissed. - RFA No. 126/2019 - - - Dated:- 15-2-2019 - MR. VALMIKI J. MEHTA J. Appellant Through: Kunwar Arish Ali, Mr. S.M. Prasad and Mr. Kapil Garg, Advocates. Respondent Through: None VALMIKI J. MEHTA, J (ORAL) CM No. 6629/2019 (Exemption) 1. Exemption allowed subject to just exceptions. CM stands disposed of. RFA No. 126/2019 CM No. 6628/2019 (stay) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he respondent/plaintiff from the account of his brother, Sh. Ravi Ranjan Chouhan, and when this cheque bounced, the respondent/plaintiff filed a complaint under Section 138 of the Negotiable Instruments Act against the brother, Sh. Ravi Ranjan Chauhan, and it is in settlement of this case, that the amount of ₹ 1,70,000/- was paid by two demand drafts. Therefore, it was pleaded by the appellant/defendant no.1 that out of the total amount of ₹ 4,10,000/-, he has repaid ₹ 3,18,500/-. The appellant/defendant no.1 pleaded that though in the Affidavit-cum-Undertaking, which was executed by him, a sum of ₹ 6,00,000/- was written in the blank space by him in hand, but the respondent/plaintiff had assured him that this amount would only be taken as ₹ 4,10,000/-. 5. The trial court framed the only issue as to the entitlement of the respondent/plaintiff to recover the suit amount. 6. Thereafter the parties led evidence, and these aspects are recorded in paras 5 and 6 of the impugned judgment, and these paras read as under:- 5. In support of his case, the plaintiff has examined 2(two) witnesses which are as under:- (1) PW-1 Sh. Gaurav Garg- the pla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t/defendant no.1 is barred by the principle of res judicata from questioning the undertaking or the amount of ₹ 6,00,000/- taken as loan inasmuch as the appellant/defendant no.1 had questioned this very Undertaking in a civil suit filed by him, and that by the Judgment dated 04.07.2013 passed by the Ld. Civil Judge, Ms. Niti Phutela, the suit of the appellant/defendant no.1 questioning the validity of Undertaking was dismissed. 8. I may also note that though the appellant/defendant no.1 claimed that there was an agreement between the parties that the amount stated as ₹ 6,00,000/- in the Affidavit-cum-Undertaking would only be taken as ₹ 4,10,000/-, this contention is barred by Section 92 of the Indian Evidence Act, 1872 because once a document is taken as final, no oral evidence can be permitted to alter or modify the terms of the written document. This is all the more so, because in the facts of the present case, the amount of ₹ 6,00,000/- is admittedly written in the hand of the appellant/defendant no.1 himself, in the blank space found in the Affidavit-cum-Undertaking. Therefore, the trial court has rightly concluded that the loan given was for an a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e first defence is concerned, the affidavit cum undertaking dated 13.12.2007 is an admitted document Ex. P1. Neither the defendant has denied his signatures nor his handwriting thereon. Important to note herein that the defendant had filed a civil suit bearing CS No. 74/11 titled as Priya Ranjan Chauhan vs. Gaurav Garg in the Court of Civil Judge (South) Saket seeking declaration that the affidavit cum undertaking dated 13.12.2007 i.e. (Ex. P-1 herein) be declared null and void. After full blown trial, vide judgment dated 04.07.2013 passed by Ld. Civil Judge Ms. Niti Phutela, the said suit was dismissed. The said judgment attained finality in as much as admittedly no appeal against the same was preferred in any higher court. The relevant observations made in the said judgment as contained in para 19 26 is extracted and reproduced in here under:- 19. In this regard it is relevant to mention that the plaintiff has admitted his signatures on Ex.PW1/1, he has even admitted that the words Six Lack only 6,00,000/ (BASIC AMOUNT) were written in his own handwriting and he had put his thumb impressions on the same. As per the rule of evidence which is encompassed in Section 104 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he payment of ₹ 18,5000/- done in cash, there is no evidence to that effect led by the defendant. Even the said averment it is a bald one in as much as he has not even stated as to on which date he had given the said sum, in presence of whom and whether he had taken or even insisted for a receipt of the same. Thus, in the absence of their being a specific / detailed averment and evidence on this account, the bald averment of having paid to the plaintiff ₹ 18,5000/- in cash holds no water. Coming to the second defence that the payment of ₹ 1,70,000/- made in settlement of the complaint U/S 138 N I Act was towards this loan liability, the same also stands disproved. Admittedly, the said complaint case was filed by the plaintiff against the brother of defendant No.1 for a cheque issued to him by his brother. There is no evidence led by the defendant that the said cheque was issued by his brother in discharge of the loan liability of ₹ 6 lacs. And most importantly DW-1 during his cross examination has categorically admitted that the settlement made in the complaint case U/S 138 N I Act was with his brother and the payment was also made on his behalf. Thus, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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