TMI Blog2023 (3) TMI 376X X X X Extracts X X X X X X X X Extracts X X X X ..... s box for cross-examination and, therefore, failed to tender any evidence in proof of his defence. No admissible evidence has been led by the defendant to prove that the money received from the plaintiff was returned. It is thus held that it is proved by the evidence on record that the plaintiff had admittedly remitted a sum of USD $ 4,70,000/- (in CS(OS) 1240/2008) to the defendant Mr. Daya Kishan Goel and a sum of 2,30,000 $ to the defendant (in CS(OS) 1239/2008) through his father which the defendants have failed to return. Whether the defendant in each of the suit had received the monies as gift? - HELD THAT:- The defendant himself has failed i.e., admissible evidence to substantiate his defence that the amount had been received as a gift. However, as already discussed above, he himself has admitted that the amount received by him was intended to be returned to the plaintiff in a circuitous manner through the partnership firms/Companies of the family members and the plaintiff and the defendant in India, to Chirag Pvt. Ltd. - defendant has failed to prove his defence of the money having been received as gift which was not intended to be returned. The issue is decided aga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 008) and his minor son defendant Chirag Goel (in CS(OS) 1239/2008) a personal loan in the sum of US $ 4,70,000/-, equivalent to INR Rs. 2,04,92,000/- and of US $ 2,30,000/-equivalent to INR Rs. 1,00,28,000/-calculated @ 43.60 paise per US$ as prevalent on 01st July, 2005 respectively. The sum is calculated @ 43.60 paise per US $ as prevalent on 01st July, 2005. The money was transmitted by the plaintiff from his personal bank account maintained with the State Bank of India, Colombo, Sri Lanka by using SWIFT Banking Channel to the two accounts of the defendant Daya Krishan Goel and Chirag Goel, minor (maintained by his father Daya Krishan Goel) in ABN Amro Bank, NV, New Delhi on 01stJuly, 2005. 4. The plaintiff has claimed that the defendant had promised to return the loan amount within six months and had also agreed to pay interest @18% per annum from the date of receipt of the amount till its repayment. However, despite expiry of the period of six months followed by repeated requests, the defendant has failed to pay the amount. 5. Left with no option, the plaintiff issued a Legal Notice dated 27th March, 2008 calling upon the defendant Daya Kishan Goel to refund/pay the amou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 10. On merits, the defense as stated in the preliminary objections, is reiterated. It is reaffirmed that the money was received by way of gift but it is claimed that it was remitted back to the Company of the plaintiff located at Sri Lanka and that the Suit has not merit and is liable to be dismissed. 11. The plaintiff in his Replication has reaffirmed that his assertions as stated in the plaint. 12. The issues on the pleadings in both the Suits were framed on 01st May, 2009 which read as under: 1. Whether the plaintiff had given a loan to the defendant in each of the suits and if so, on what terms, if any, as to repayment and interest? OPP 2. Whether the defendant in each of the suit had received the monies as gift? OPD 3. Whether the defendant in each suit is not liable for refund of the monies, also for the reason of transfer of monies at the instance of the plaintiff, as averred in the written statement? OPD 4. If under issue No. 1 the plaintiff is found entitled to recovery of money but no agreed term of rate of interest is proved, whether the plaintiff is entitled to any interest, and if so, at what rate and for what period? OPP 5. Reli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tificate in the sum of USD 4.7 Lakhs credited in the account of Master Chirag Goel on 05th July, 2005 is DW1/7 and the Account Statement of Master Chirag Goel is DW1/8. 16. However, the defendant stopped appearing in the matter and was proceeded ex parte on 16th April, 2019. The defendant failed to appear for his cross-examination and his affidavit of evidence cannot be read. 17. Submissions heard. My Issue wise findings are as under: ISSUE NO. 1: 1. Whether the plaintiff had given a loan to the defendant in each of the suits and if so, on what terms, if any, as to repayment and interest? OPP. 18. The plaintiff as PW-1 tendered his affidavit of evidence Ex.PW1/A, wherein he deposed that he had remitted USD 4,70,000.00 equivalent to INR 2,04,92,000/- calculated @ Rs.43.60 paise per USD from his personal account maintained with the State Bank of India, Colombo, Sri Lanka to the defendant s Bank i.e., ABN Amro Bank, NV, New Delhi on 01st July, 2005. The payment instructions dated 01st July, 2005 is Ex.PW1/1 and the certificate dated 22nd December, 2008 issued by the State Bank of India, Columbo, Sri Lanka evidencing the remittance is Ex.PW1/2. The statement of sav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ossexamination. 24. The plaintiff was confronted with his affidavit Ex.PW1/D2 filed by him in another Civil Suit bearing No. CS (OS) 645/2006, in support of the application under Order 23 Rules 1 and 3 of CPC, 1908, wherein some settlement had been arrived between the parties. However, merely because there was some Settlement arrived at in the said Suit, the same can be of no significance and relevance, as it does not state that the Settlement included the present Suit. The plaintiff when confronted with the Settlement, admitted his signatures on the affidavit of Settlement Ex. PW1/D2, but had denied that vide this Agreement dated 08th June, 2006, all the accounts between him and his brother were fully and finally settled. It may be significant to observe that this Settlement was of 08th June, 2006, while the entire trial in this case has happened practically after the date of alleged Settlement. 25. This Settlement was neither ever mentioned in the pleadings nor was any defence taken by the defendant in the Written Statement that any Settlement in respect of the present Suit ever took place or that the amount has already been returned to the plaintiff, pursuant thereto. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... failed to prove his defence of the money having been received as gift which was not intended to be returned. The issue is decided against the defendant. ISSUE NO. 3: Whether the defendant in each suit is not liable for refund of the monies, also for the reason of transfer of monies at the instance of the plaintiff, as averred in the written statement? OPD 33. In view of the findings on Issue No.1 2, it is held that the defendant was liable to refund the monies to the plaintiff which he failed to do. 34. The issue no.3 is decided against the defendant. ISSUE NO. 4: If under issue No. 1 the plaintiff is found entitled to recovery of money but no agreed term of rate of interest is proved, whether the plaintiff is entitled to any interest, and if so, at what rate and for what period? OPP 35. The plaintiff has further asserted that the defendant had agreed to pay an interest @18 per annum from the date of transmitting the loan amount to his account, but there is no cogent evidence produced in this regard. The Legal Notice Ex.PW1/5 demanding the money and the interest was served upon the defendant Daya Kishan Goel only on 27th March, 2008. The plainti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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