IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD PRESENT THE HON'BLE SRI JUSTICE K.C.BHANU A.S.No.318 OF 2006 AND CROSS OBJECTIONS (SR) NO.9680 OF 2006 Date:06-04-2011 A.S.No.318 OF 2006:- Between:- Dr.R.Ravichandran ..Appellant/Defendant And V.Dwarakanatha Reddy .. Respondent/Plaintiff AND CROSS OBJECTIONS (SR) NO.9680 OF 2006:- Between:- V.Dwarakanatha Reddy ..Cross Objector/Respondent And Dr.R.Ravichandran .. Respondent/Appellant COMMON JUDGMENT: The appeal, under Section 96 of the Code of Civil Procedure, 1908, is directed against the judgment and decree, dated 31.03.2006, in O.S.No.19 of 1999 on the file of the learned District Judge, Chittoor, whereunder and whereby, the suit was decreed for Rs.5,00,000/- with costs and interest at 12% p.a. from the date of decree till realization. 2. The respondent filed cross-objections aggrieved by the same judgment and decree in not awarding interest from the date of suit till the date of decree. 3. Heard. 4. The case of plaintiff is that the defendant borrowed Rs.5,00,000/- to meet his necessities and promised to repay the same within a short time. The defendant is a Doctor by profession. The plaintiff paid Rs.5,00,000/- to the defendant by way of cross demand draft, dated 27.06.1996, drawn on the State Bank of Hyderabad at Chittoor in his name payable at State Bank of India, Tiruvannamalai. Later, the defendant received it and encashed the same. The defendant also promised to pay interest at 12% p.a. if the payment is delayed. The defendant failed to repay the due amount in spite of writing letters to him on 07.06.1997, 19.07.1997 and 01.08.1997. The defendant sent a letter stating that he had not received any such demand draft and that he had not borrowed any amount from the plaintiff and that the plaintiff donated the said amount to Dharshan Trust and that the same was credited to Dharshan Trust Account. The plaintiff also received a letter from one J.S.Soundar Rajan, a Chartered Accountant from Vellore, stating that the amount of Rs.5,00,000/- was credited to Dharshan Trust Account as loan from the plaintiff. The plaintiff never consented either in writing or by oral instructions to Vysya Bank or to the defendant to credit the above said amount to Dharshan Trust Account and he never gifted the said amount to anybody, muchless to Dharshan Trust. The plaintiff further submitted that the defendant encashed the amount and utilized the same for his necessities and as such, he is liable to pay the same together with interest at 12% p.a. as the transaction is relating to the defendant’s business. Hence, the suit was filed. 5. The defendant filed a detailed written statement denying all the allegations made in the plaint. It was stated that the suit transaction relates to the Nutrine Confectionery Private Limited Company but not in the individual capacity of the plaintiff. On verification of the records filed by the plaintiff, it is clear that the amount of Rs.5,00,000/- was paid to the above said company by way of demand draft. Therefore, the plaintiff is not entitled to claim the said amount in the individual capacity. Further, the defendant has not agreed to repay the said amount with interest at 12% p.a. in the event of delay in payment and there was no contract between the defendant and plaintiff with regard to the payment of interest. Even as per the documents filed along with the plaint, on the same instrument (demand draft in question), two claims are being made as if the defendant is answerable to both the persons to a tune of Rs.5,00,000/- each. Further, it was admitted by the plaintiff that the amount has been given to meet maintenance of Vivekananda Eye Hospital at Tiruvannamalai, which is maintained and owned by one Dharshan Trust, wherein the plaintiff was a trustee. The plaintiff purchased the demand draft in question in the name of defendant as he being one of the trustees of the Dharshan Trust at the relevant time, towards donation and not as a loan in the individual capacity of the defendant. Further, there is no need or necessity for the defendant to borrow any amount from the plaintiff. The above said amount has been given to meet the hospital expenses as stated above. Admittedly, the amount has been credited and accounted for in the account book of the hospital and the trust. As there arose some differences with regard to the running of Vivekananda Eye Hospital, the defendant resigned from the hospital on 19.05.1997 and the plaintiff also knew about this fact. The plaintiff fully knowing all the above said facts, filed this frivolous suit only to harass the defendant and therefore, the plaintiff is not entitled to any amount, much less the suit amount and prayed to dismiss the suit with costs. 6. Basing on the above pleadings, the following issues have been framed for trial: 1. Whether the defendant borrowed rupees five lakhs from the plaintiff through a crossed demand draft, dated 27.06.1996? 2. Whether the defendant agreed to pay interest at 12% p.a. and the plaintiff is also entitled to such interest as per business custom and practice? 3. Whether the plaintiff is entitled to the suit amount with future interest and costs from the defendant? 4. To what relief? 7. The following additional issue was also framed: Whether the suit demand draft of Rs.5,00,000-00 was given as donation to the Dharshanam Trust to meet the hospital expenses as contended by the defendant? 8. Learned counsel for the appellant/defendant contended that without there being any evidence, the trial Court simply decreed the suit and therefore, he prays to set aside the impugned judgment and decree. 9. On the other hand, the learned counsel appearing for the respondent/plaintiff contended that as the issuance of the demand draft is admitted, the burden is on the defendant to establish that he received the demand draft towards donation and therefore, the trial Court rightly decreed the suit and there are no grounds to interfere with the same. 10. Now the point for consideration is whether the defendant received the amount covered by demand draft towards his necessities or towards donation to Dharshan trust and whether the judgment of the trial Court is correct? 11. No doubt, under Section 58 of the Indian Evidence Act, 1872, admitted facts need not be proved, but, at the same time, the specific case of the plaintiff is that he lent an amount of Rs.5,00,000/- to the defendant towards loan. The defendant only admitted that he received demand draft but he has not admitted that receipt of demand draft is towards the loan. On the other hand, it is his specific case that the plaintiff lent that amount to the Trust towards donation. Therefore, there is a serious dispute with regard to the lending of amount as a loan or donation. If such is the case, the trial Court ought not to have decreed the suit when the fact alleged by the plaintiff is denied by the defendant by filing the written statement. No oral or documentary evidence is let in. Basing on the pleadings, the judgment was delivered. When the issues are framed, necessarily, reasonable opportunity to the both parties to let in evidence should have been given. 12. Accordingly, the Appeal Suit is allowed setting aside the judgment and decree, dated 31.03.2006, in O.S.No.19 of 1999 on the file of the learned District Judge, Chittoor, and remanding the matter to the trial Court for fresh disposal after giving an opportunity to both the parties to let in evidence to substantiate their case. In view of the fact that the suit is of the year 1999, the trial Court shall dispose of the suit within a period of four (4) months from the date of receipt of a copy of this order and both the parties shall cooperate with the trial of the case. There shall be no order as to costs. 13. In view of the fact that the appeal is allowed remanding the matter to the trial Court for fresh disposal after giving an opportunity to both the parties to let in evidence to substantiate their case, no further orders are required to be passed in the Cross Objections. _______________ K.C. BHANU, J 6th April, 2011 AMD THE HON'BLE SRI JUSTICE K.C.BHANU A.S.No.318 OF 2006 AND CROSS OBJECTIONS (SR) NO.9680 OF 2006 Date:06-04-2011 AMD