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TMI Blog2018 (11) TMI 929X X X X Extracts X X X X X X X X Extracts X X X X ..... l before the learned Trial Court and does not need any further reagitation. Whether appellant rebuttal rebutted the presumption under section 139 of the N.I Act, when respondent failed to prove that any loan was given to the appellant? - Held that:- No such issue is sought to be framed arises as any substantial question of law in the instant case which is in fact based purely on facts qua which there are concurrent findings of the learned Trial Court and the First Appellate Court. Whether if respondent claimed that he was charging the monthly interest, can it be a friendly loan or doing money lending covered under Punjab registration of Money Lenders' Act? - Held that:- The plaintiff i.e. the respondent to the present appeal did not bring forth that the defendant was running any business of money lending and that thus merely because interest was sought to be charged by the plaintiff on the loan given to the defendant/appellant. Whether issuing of cheque is amount (sic) (amounts) to presumption that cheque is issued for re-payment of loan? - Held that:- The presumption of law on issuance of a cheque in favour of the holder of the cheque, unless the contrary is proved that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tated to have paid the agreed interest on the aforesaid loan amount in time and in October, 2008 when the plaintiff/ respondent, asked the defendant/appellant about the principal amount, the defendant/appellant told the plaintiff/ respondent to present the aforementioned cheques which were presented by the plaintiff/ respondent on 1.11.2008 but the cheque got dishonoured and on the defendant/appellant, having been informed of the dishonour, the defendant/appellant assured the plaintiff/ respondent, that the defendant/appellant, would make the payment in cash within a short time after arrangement of the said amount and also asked the plaintiff/ respondent, not to present the second cheque. 3. It is indicated through the judgment of the learned Trial Court dated 19.10.2016 that as per the averments made in the plaint, the said promises were not kept by the defendant/appellant and the defendant/appellant, rather gave two other cheques to the plaintiff/ respondent bearing No. 305824 dated 20.3.2009 for a sum of ₹ 40,000/- and 305825 dated 20.3.2009 for a sum of ₹ 40,000/- both payable at the Punjab Sind Bank, Patel Nagar Branch, New Delhi which were also dishonoured on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s per the observations in the impugned judgment of the learned Trial Court, the plaintiff/ respondent approached the defendant/appellant in the year 2008 and suggested that there were various investment schemes and in case the defendant/appellant invests a big amount, the said amount would be doubled within a short time and one of the said attractive investment scheme as allegedly suggested by the plaintiff/ respondent was that if defendant/appellant made investment of a sum of ₹ 2,65,000/-, he would get a handsome yield within a short time and in this manner the plaintiff/ respondent had trapped the defendant/appellant in his net by luring him, as a consequence of which the defendant/appellant had issued two cheques of ₹ 1,32,836/- each bearing No. 692102 and 692103 from his account and the defendant/appellant alleged that the plaintiff/ respondent had mala fide intentions and as such had got issued the cheques in his own name instead of the name of the Insurance Company. 9. The defendant/appellant further claimed that he was not in a good financial condition to invest such a huge amount and accordingly got the payment of one cheque bearing No. 132836- stopped from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intiff is entitled to recovery of amount of ₹ 2,44,200/- along with pendente lite and future interest @ 24% p.a. from 01.11.2010 till the realization of said amount? OPP (4.) Relief, if any., in favour of the plaintiff/ respondent, and whilst holding that there existed a privity of contract between the parties and that the suit was not bad for non-joinder of any necessary party, coupled with the factum that the alleged loan had not been extended to a firm nor was the firm a guarantor of the loan transaction and that the firm of the defendant/appellant had nothing to do with the alleged investment made by the defendant/appellant with the plaintiff/ respondent which was purportedly in a personal capacity, the learned Trial Court qua issue No.3 observed to the effect:- 21. ISSUE N0.3 3. Whether the plaintiff is entitled to recovery of amount of Rs,2,44,200/- alongwith with pendente lite and future interest @24% p.a from 01.11.2010 till the realization of said amount ? The onus to prove this issue was upon plaintiff. The plaintiff has alleged that despite taking loan of ₹ 2,65,000/- from him in March 2008, defendant has only returned ₹ 8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Act indeed includes the existence of a legally enforceable debt or liability. However at the same time it has also been observed in die above judgment of Rangappa (Supra) that the presumption is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. 24. Though both the above judgments have been passed in criminal complaint cases u/s 138 of Negotiable Instruments Act, however the legal presumption remains the same, both for civil and criminal cases. Hence, it was for the defendant to dispel the initial legal presumption of liability existing in favour of plaintiff through preponderance of probabilities. However defendant has failed to discharge this onus except stating that he had given the cheques for investment in a scheme. 25. In fact, there is also some contradiction in the above contention raised by the defendant. On the one hand, he submits that plaintiff had lured him for making investment of ₹ 2,65,000/- in an attractive investment scheme. However, on the other hand, he submits that he was not in a good financial conditio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that plaintiff had asked him to invest ₹ 2,65,000/- upon which he issued those two cheques. So he cannot now dispute the figure of ₹ 2,65,000/- as was argued by defendant's counsel during final arguments. 30. The Law is well-settled that Civil suits are decided on the basis of preponderance of probabilities which is strongly in favour of plaintiff in the present case. Accordingly, the plaintiff has been able to prove having extended loan of ₹ 2,65,000/- to defendant. However, the interest @ 24 % p.a. as has been claimed by plaintiff is highly exorbitant. There is no proof that any such rate of interest was agreed between the parties. The plaintiff admittedly does not have any money lending license and the loan was extended to defendant due to friendly relations between the parties. In the facts at hand, in my view considered view, interest @ 10 % per annum would be just and fair. Accordingly this issue is also decided in favour of plaintiff against the defendant. , and thus decreed the suit of the plaintiff/ respondent for a sum of ₹ 1,85,000/- after deducting part payment of ₹ 80,000/- from the total loan amount of ₹ 2,65,000 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of time. 15. As already mentioned that defendant has not disputed issuance of the 6 cheques in favour of plaintiff. Ld. Trial Court has rightly said that Section 138 139 of NI Act are applicable in both civil and criminal cases. The statutory presumption u/s 139 NI Act is in favour of the plaintiff which presumes that the cheques issued in favour of the holder of the cheques were in discharge of legal liability unless the contrary is proved. Hence, the burden was upon the defendant to prove that the cheques in question were not issued by him in discharge of legal liability. 16. The defendant is taking contradictory stands regarding the issuance of cheques by him in favour of plaintiff. In para no. 4 of the written statement he has stated that the six cheques issued by him in favour of the plaintiff were in lieu of the insurance policy taken by him from the plaintiff. On the other hand, in the subsequent paras of the written statement he has stated that plaintiff being insurance advisor allured the defendant for investing money with him (plaintiff) and on the allurement of the plaintiff, the defendant invested his money with the plaintiff on the belief that the amount in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e defendant that he issued the cheques in question in advance for the said insurance policy and if it was so, then those cheques necessarily should be in the name of LIC but not in the individual name of plaintiff or his proprietorship concern. Hence, the defendant has miserably failed to prove that the cheques in question issued by him in favour of the plaintiff, were for investment purpose or for the insurance policy. 15. The contention of the defendant/appellant that the learned Trial Court had not considered the factum of the suit being barred under the provisions of Punjab Registration of Money Lender Act was also repelled by the learned First Appellate Court observing to the effect:- 19. It is settled law that no line can be read in. isolation. The party cannot be allowed to take advantage of any general statement given by the opposite party. The above extract portion of cross examination of PW-1 clearly indicates that the general question was put to him by the defendant's counsel whether the plaintiff takes receipt whenever he gives any amount to any person. The same was answered by PW-1 in a very casual manner by saying that when he gives any amount to anybod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intainability of the suit can be raised at the stage of first appeal? C. Whether appellant rebuttal (sic?) (rebutted) the presumption under section 139 of the N.I Act, when respondent failed to prove that any loan was given to the appellant? D. Whether issuing of cheque is amount (sic?) (amounts) to presumption that cheque is issued for re-payment of loan? E. Whether if respondent claimed that he was charging the monthly interest, can it be a friendly loan or doing money lending covered under Punjab registration of Money Lenders' Act? 18. Apparently, the factum of the respondent allegedly running a money lending business would require determination of facts and evidence which is not within the domain of this Court in terms of Section 100 of the CPC, 1908, as amended, RSA No. 160/20-18 and thus no issue in relation thereto is necessitated, and thus no such issue as at Serial No.A sought to be framed by the plaintiff/respondent herein can be framed and is thus not framed. 19. As regards issue No. B , sought to be framed to the effect: B. Whether question of law regarding maintainability of the suit can be raised at the stage of first appeal? 20. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be framed arises as any substantial question of law in the instant case which is in fact based purely on facts qua which there are concurrent findings of the learned Trial Court and the First Appellate Court. 24. As regards issue No. E which reads to the effect, Whether if respondent claimed that he was charging the monthly interest, can it be a friendly loan or doing money lending covered under Punjab registration of Money Lenders' Act? , the findings of the learned Trial Court are categorical to the effect that there was no evidence that the defendant/appellant had placed on record to substantiate his contention that the plaintiff/ respondent was in the business of Money Lending and the testimony of PW-1 the plaintiff/ respondent relied upon on behalf of the defendant/appellant reads to the effect:- I am an income tax payee and regularly deposit my ITR to the concerned authority. I had not deposited any document relating to my income in the court. When I give any amount to anybody, I usually take receipt from him. I used to give the loan to some person then, due to believe (belief) and faith having in that person. I do not use to get any signatures or re ..... 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