Sudesh Sethi v. M/S Strategic Infotech Systems Pvt Ltd & Ors

RAJIV SAHAI ENDLAW, J. OCTOBER 01, 2018 'pp'..

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 1st October, 2018. + RSA 145/2018 & CM No.40652/2018 (for stay) SUDESH SETHI ..... Appellant Through: Mr. S.C. Arora, Adv. Versus STRATEGIC INFOTECH SYSTEMS PVT LTD & ORS ..... Respondents Through: None. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW CM No.40653/2018 (for exemption). 1. Allowed, subject to just exceptions. 2. The application stands disposed of. RSA 145/2018 & CM No.40652/2018 (for stay) 3. This Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) impugns the judgment and decree [dated 24th July, 2018 in RCA No.61308/2016 of the Court of Additional District Judge-13 (Central)] allowing the First Appeal under Section 96 of the CPC preferred by the respondents/defendants against the judgment and decree [dated 24th January, 2012 in Suit No.299/06 (Case ID C0185572003) of the Court of Civil Judge] allowing the suit of the appellant/plaintiff for recovery of Rs.1,05,650/- in the sum of Rs.90,000/- with interest @ 12% per annum with effect from 10th November, 2002. 4. The counsel for the appellant/plaintiff has been heard and copies of the Suit Court record annexed to the memorandum of appeal perused. 5. The sine qua non for entertaining a Second Appeal is the existence of a substantial question of law, as recently held by the Supreme Court in Surat Singh Vs. Siri Bhagwan (2018) SCC 562 and Vijay Arjun Bhagat Vs. Nana Laxman Tapkire (2018) 6 SCC 727; even a notice of Second Appeal under Section 100 CPC cannot be issued without framing a substantial question of law. I have thus, straightway enquired from the counsel for the appellant/plaintiff, the substantial question of law which this appeal raises. 6. The counsel for the appellant/plaintiff has argued "that the First Appellate Court has neither discussed any issues nor any evidence and without doing so, has set aside the judgment and decree of the Suit Court and decided in favour of the respondents/defendants". Besides this, the counsel for the appellant/plaintiff has drawn attention to pages 130 and 131 of the paper book, being the cross-examination recorded on 28th July, 2011 of DW1 Dhiraj Oberoi i.e. the respondent/defendant no.4 herein by the counsel for the appellant/plaintiff, where he admitted that a sum of Rs.90,000/- was received by the respondent/defendant no.1 Strategic Infotech Pvt. Ltd. through a cheque drawn by the appellant/plaintiff and contends that inspite of this admission of the respondents/defendants, the First Appellate Court has held that it was incumbent upon the appellant/plaintiff to appear in the witness box and for this reason only allowed the appeal and dismissed the suit. 7. I have perused the paper book. 8. The appellant/plaintiff instituted the suit, pleading (i) that the respondent/defendant no.1, through its Directors respondents/defendants no.2 to 4 i.e. Sandeep Bajaj, Kapil Oberoi and Dhiraj Oberoi, had taken a loan of Rs.90,000/- from the appellant/plaintiff vide cheque dated 9th November, 2001, on the promise of paying interest thereon @ 3% per month, for one year only; (ii) that the respondents/defendants, on 23rd August, 2002 issued account payee cheque of Rs.30,000/- in favour of the appellant/plaintiff towards part payment of interest; (iii) that the loan amount of Rs.90,000/- and the balance interest was however not paid; and, (iv) that the respondents/defendants however, in their books and balance sheet as on 31st March, 2001 and Income Tax Return filed, had shown the said loan as taken from its erstwhile Director Anand Sethi but which fact was wrong. Hence the suit for recovery of loan amount of Rs.90,000/- together with interest till the date of institution of the suit i.e. for a total sum of Rs.1,05,650/-. 9. The respondents/defendants contested the suit by filing a written statement pleading (i) that the son of the appellant/plaintiff i.e. Anand Sethi was inducted as a Director of the respondent/defendant no.1 and had paid a sum