Neeru Narula v. Dhand Enterprises

PRADEEP NANDRAJOG, J.

S.L.BHAYANA, J. OCTOBER 31, 2008 dk

* IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Order : 31.10.2008 + RFA 88/2002 MS. NEERU NARULA ..... Appellant Through: Mr.Ashok Bhasin, Sr. Adv. with Mr.Shantanu Rastogi, Adv. and Mr.A.K.Sham, Adv. with Appellant in person. versus M/s.Dhand Enterprises (Through Pawan Kumar Dhand, sole proprietor)..Respondent Through: Mr.Naresh Bakshi, Adv. and Mr.Tushar Bakshi, Adv. with Proprietor of the respondent in person. CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR. JUSTICE S.L.BHAYANA 1. Whether reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? 3. Whether judgment should be reported in Digest? : PRADEEP NANDRAJOG, J.(Oral) 1. The appeal was admitted on 29.10.2002. On an application filed seeking early hearing the hearing of the appeal was expedited. 2. Trial Court record has been requisitioned. 3. Heard learned counsel for the parties. 4. The appellant was the defendant. She has lost the battle. The suit filed by the respondent, who was the plaintiff, has been decreed in sum of Rs.3,90,000/- with interest @18% per annum from 8.1.1997 till 4.1.2002 when judgment and decree was pronounced. Costs have also been awarded in favour of the respondent. 5. The respondent was maintaining a current account No.14048 with the Union Bank of India, Branch at G-237, Narayan Vihar, New Delhi-110028. Undisputably out of the cheque book issued by the bank to the respondent cheque No.062361 was utilized for withdrawing Rs.3,90,000/- on 8.1.1997. 6. The dispute between the parties is whether the appellant withdrew the money or whether the respondent did so. 7. The cheque Ex.PW-1/1 is drawn on self and is dated 7.1.1997. 8. Case of the respondent is that he drew the cheque on self and went to the bank to withdraw the money on 7.1.1997 but since there was no money in the account he could not withdraw the requisite sum. That he knew the appellant and hence at the rear of the cheque made an endorsement: "Please deliver this amount to Mrs.Neeru Narula. Her signatures are attested below." 9. Beneath the said endorsement he attested the signatures of Neeru Narula by making her sign at point 'D' at the rear of Ex.PW-1/1 and there-under penned his signatures in token of the certification. That armed with the said authority Mrs.Neeru Narula, the appellant, withdrew Rs.3,90,000/- but did not pay over the same to him and hence the suit. 10. The appellant defended the cause initiated by pleading that she was requested by the respondent to withdraw the money in cash on 7.1.1997 and that the endorsement at the reverse of the cheque were made on 7.1.1997. She went to the bank to withdraw money but there being no cash she came back and handed over the cheque to the respondent who encashed the same on 8.1.1997. 11. Needless to state, the fate of the cause before the Court would have been decided on whether the respondent proved that the appellant withdrew the money under the cheque in question; and if he did so the appellant would have failed inasmuch as it was not her case that after she withdrew the money she handed over the same to the respondent. 12. Parties examined themselves as their witnesses, and needless to state, reiterated their respective versions. 13. The Manager of the bank, Shri A.K.Budhiraja, was examined as PW-1. He stated that he was functioning as the Manager of the bank on 8.1.1997 and that on 8.1.1997 at about 11.00 A.M. he personally handed over the money to the appellant when the cheque was presented for encashment. 14. In view of the testimony of PW-1, learned Trial Judge has held that the same establishes that the appellant was the person who received the money when the cheque was presented for encashment on 8.1.1997 and since it was not the case of the appellant that she had handed over the money to the respondent, view taken is that the suit has to be decreed. 15. Learned counsel for the appellant has drawn our attention to the cheque Ex.PW-1/1. As noted above, the cheque was d