1. This Appeal under Section 100 of the Code of Civil Procedure is filed by the original defendant against whom the respondentplaintiff filed Regular Civil Suit No. 32/2006 for recovery of the amount of Rs 1,97,036/ from the defendant. 2.1 The case of the plaintiff in his suit is that the plaintiff was serving as Assistant Engineer at Narmada Project Store Division No. IV and the defendant was also serving in the same office as class IV employee. There was good relationship between the plaintiff and the defendant, and the plaintiff lent different amounts at different times. From June 1998 onwards the plaintiff lent 3,10,000/ to the defendant and the defendant used to repay small amounts against the total amount lent by the plaintiff. From the period of December 1998 and June 1999 the plaintiff repaid only Rs 4515/ but thereafter between January 1999 and November 2000 the plaintiff repaid amount of Rs 99,000/ and thus defendant repaid Rs 1,03,515/. On 6th January 2001 the plaintiff sent the account for the remaining amount due and payable by the defendant by registered post, to which the defendant did not answer and in fact paid Rs 2000/ by cheque on 8th May 2001 and further Rs 2000/ by cheque on 19th June 2001. On 11th August 2001, on 1s September 2001 and lastly on 11th October 2001, similar amounts were paid by the defendant towards the outstanding amount and the defendant thus paid Rs 1,13,515 but did not pay the remaining amount and therefore, the plaintiff was constrained to issue legal notice dated 15th December 2001 asking the defendant to repay the remaining amount with interest by 14th January 2001. The defendant gave evasive reply to the notice but did not pay any amount and therefore the suit was filed by the plaintiff.
3. The suit was resisted by the defendant by filing written statement denying the allegations made by the plaintiff in his suit and makingthe counter claim for amount of Rs 1,13,515/.
3.1 It is stated by the defendant in his written statement that the plaintiff had misused the cheques given to him as the said cheques were not for the purpose of repayment of any amount of the plaintiff.
3.2 Learned Trial Judge on appreciation of evidence came to the conclusion that the defendant had not disputed the account sent by the plaintiff for the outstanding amount payable by the defendant and even did not dispute the said amount even after the notice was issued by the plaintiff. Learned Trial Judge further came to the conclusion that the defendant in fact went on repaying the amount lent by the plaintiff till 2001. Lastly by cheques each of Rs 2000/ the defendant had paid Rs 10,000/ to the plaintiff. Learned Judge therefore, recorded finding that the plaintiff had proved that the plaintiff had lent Rs 3,10,000/ out of which the defendant had paid only Rs 1,13,515/ and thus a sum of Rs 1,97,485 was due and payable by the defendant. Regarding counter claim of the defendant, learned trial judge came to the conclusion that the defendant had failed to prove as to on what account the amount claimed by counter claim was due and payable by the plaintiff. Learned Judge further observed that there is no evidence from the side of the defendant that the defendant had given Rs 1,13,515/ to the plaintiff by way of loan.
Learned judge also observed that if the amount as per the counter claim was in fact due and payable by the plaintiff, the defendant would have either issued notice to the plaintiff for such amount or would have lodged criminal complaint for the misuse of the cheques by the plaintiff. Learned Trial Judge thus found that the defendant had totally failed to prove the counter claim against the plaintiff. Learned Trial Judge thus partly allowed the suit and ordered the defendant to pay to the plaintiff an amount of Rs 1,97,485/ with interest @ 6% per annum from the date of filing of the suit till the judgment and decree dated 31st August 2012.
4. The defendant unsuccessfully carried the matter before the Appellate Court by filing Regular Civil Appeal No. 27/2012. The defendant raised various contentions. The main contentions are that the suit of the plaintiff is time barred; that the plaintiff did not produced any documentary evidence, that the amount claimed in the suit was due and payable by the defendant; that the account kept by the plaintiff on simple paper could not be admissible in evidence; that the cheques given by the defendant were not for the repayment of any amount to the plaintiff and that the trial court has misdirected itself while dealing with the counter claim of the defendant by not properly reading the evidence available on record. Learned Appellate Judge however, on appreciation of evidence confirmed the finding and reasoning given by the learned trial judge by coming to the conclusion that if the defendant had repaid some of the amount to the plaintiff and if the defendant had failed to even dispute the account sent by the plaintiff, it cannot be said that the plaintiff has not proved that he had lent the amount claimed in the suit to the defendant. Learned Appellate Judge, thus dismissed the appeal by judgment and decree dated 31st August 2012. It is this judgment and decree which is under challenge before this Court, in this Appeal.
5. I have heard learned advocate Mr. Patel for the appellant.
6. Learned advocate Mr. Patel submitted that the suit of the plaintiff is not based on any contract between the parties nor the plaintiff has proved the amount of the suit claimed by any cogent documentary evidence and therefore, the Courts below were not justified in passing the decree against the defendant. Mr. Patel learned advocate submitted that the account written by the plaintiff on simple paper could not have been read as evidence by courts below so as to hold that the defendant, was liable to pay the amount claimed in the suit. Mr. Patel submitted that the Courts below have committed material error by taking into consideration the cheques given by the defendant to hold that the cheques were given towards the amount lent by the plaintiff. Mr. Patel submitted that when it was specific case of the plaintiff that such cheques were given for the purpose of repayment of amount to the plaintiff, it was for the plaintiff to prove that such cheques were given by the defendants for the purpose of repayment of the amount lent by the plaintiff as per the account settled between the parties. Mr. Patel submitted that since, there is no account settled between the parties there is no question of sending any cheque by the defendant to the plaintiff and therefore, in absence of any documentary evidence for the proof of the amount alleged to have been lent by the plaintiff, the Courts below ought not to have placed reliance on five cheques given by the defendant to hold that the plaintiff had successfully proved that the plaintiff had lent Rs 3,10,000/ to the defendant. Mr. Patel further submitted that as regards counterclaim of the defendant the Courts below have not properly considered the evidence available on record. He submitted that there is no dispute that the defendant was not only supplying milk to the plaintiff but because of the good relationship with the plaintiff the defendant had given loan to the plaintiff to the extent of Rs 1,13,515/. Mr. Patel submitted that simply because the defendant had not issued any notice for the recovery of the said amount and simply because the defendant had not filed complaint for misuse of the cheque by the plaintiff cannot be a ground to hold that the defendant had failed to prove his counterclaim. Lastly Mr. Patel submitted that as per the case of the plaintiff himself the plaintiff had lent amount to the defendant in the year 1998 and when the suit was filed in the year 2002, the suit of the plaintiff was time barred and in such time barred suit, the Courts below could not have passed any decree against the defendant. He thus urged to entertain this appeal.
7. Having heard learned advocate for the appellant and having perused the judgment and decree of the Courts below, it appears that the defendant was not a strange person to the plaintiff. The defendant had not disputed the fact that the plaintiff was serving in the same office where the defendant was serving. It is also required to be noted that the defendant had during the period from December 1998 to December 1999 repaid the amount of Rs 4515/ and further paid Rs 99000/ between January 1999 and November 2000 against the outstanding amount of the plaintiff. It is also required to be noted that after the plaintiff sent account maintained by him to the defendant, the defendant did not dispute the accounts but paid more amounts by cheques. Those cheques were bearer cheque in favour of the plaintiff. From the conduct on the part of the defendant it clearly appears that the defendant had taken loan from the plaintiff, otherwise there was no necessity for the defendant to repay the the amount to the plaintiff especially when there is no explanation from the defendant that on what account the defendant had repaid the total amount of Rs 1,13,515/ till October 2001. If the defendant had not taken loan from the plaintiff, there was no reason for the defendant to pay such a big amount of Rs 1,13,515/ from December 1998 to 2001. In my view this conduct on the part of the appellant is itself a proof that the plaintiff had in fact lent the amount of Rs 3,10,000/ to the defendant and in the course of repayment of the loan amount the defendant had paid the above said amount of Rs 1,13,515/. The Courts below have also further considered the conduct of the defendant, and observed that after the plaintiff had sent account maintained by him to the defendant, he did not dispute the amount stated to be outstanding by the plaintiff. The defendant had not disputed the same at all. After that also the defendant did not raise any objection as regards outstanding amount stated by the plaintiff when the plaintiff issued a legal notice to the defendant. One more fact is that it is the case of the defendant himself that the defendant had some transaction with the plaintiff and he was supplying milk to the plaintiff and the account with the plaintiff was required to be settled. However, the defendant has not come out with concrete evidence as to the nature of accounts to be settled with the plaintiff, and as to how the defendant was entitled to the amount more than the amount stated by the plaintiff in his suit.
8. The Courts below having considered the above aspects of the matter and having recorded the finding that the plaintiff had proved that he had lent amount of Rs 3,10,000/ and the defendant having repaid some of the amount, it cannot be said that the Courts below have committed any error and it cannot be said that the finding recorded by the Courts below is either on misleading of the evidence or by taking into consideration the irrelevant material. As regards counter claim also, the courts below have found that the defendant had not produced any evidence to prove his counter claim. In my view as regards counter claim also the Courts below cannot be said to have committed any error in recording the above said finding. Mr. Patel has failed to point out any error of the Courts below in dismissing the counter claim.
8.1 As regards issue of limitation, it is required to be noted that after the amount was given by the plaintiff by way of loan to the defendant in the year 1998, the defendant repaid some amount during the period from December 1998 to June 1999 and then some more amount between the period from January 1998 to November 2000 and lastly Rs 10,000/ in the year October 2001. Thus the defendant acknowledged the dues of the plaintiff in the month of October 2001. In my view the limitation would start reckoning for filing the suit against the defendant from October 2001. The Courts below have thus rightly held the suit of the plaintiff within limitation. In view of the above findings of facts reached by the Courts below, with which I also concur, this appeal is required to be dismissed and accordingly the same is dismissed.
9. As Second Appeal is dismissed no order is required to be passed in Civil Application. Civil Application stands disposed of accordingly.
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(C.L.SONI, J.)