Page 1 CFA no.113/2017 HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR … CFA no.113/2017 Pronounced on: 11.02.2025 Nazir Ahmad Indrabi …….Petitioner(s) Through: Mr Mohammad Younis Khan, Advocate Versus Ghulam Nabi Rather ……Respondent(s) Through: CORAM: HON’BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE JUDGEMENT 1. This appeal has been preferred under Section 96 of the Code of Civil Procedure against the judgement and decree dated 27th September 2017, passed by District Judge, Pulwama, in a Suit under Order XXXVII CPC titled as Ghulam Nabi Rather v. Nazir Ahmad Indirabi, and for setting- aside the same. 2. Heard and considered. 3. On 21st August 2014, a civil suit titled as Ghulam Nabi Rather v. Nazir Ahmad Indirabi came to be filed by respondent (plaintiff before the Trial Court) against appellant herein (defendant before the Trial Court) under Order XXVII CPC for recovery of an amount of Rs.3.80 lacs with interest on the ground that defendant had borrowed an amount of Rs.3.80 Lacs from plaintiff with a promise to return the same and that defendant on 30th April 2012 executed a Hundi in favour of plaintiff Page 2 CFA no.113/2017 and despite the demand made by plaintiff, defendant did not pay the amount. 4. Appellant/defendant filed an application seeking leave to defend the suit on the ground that after execution of Hundi, defendant paid an amount of Rs.2.15 Lacs to plaintiff and parties had finally settled their accounts and it was mutually accepted by parties to the suit that defendant only owed an amount of Rs.1.65 Lacs to plaintiff and they executed an agreement on 29th November 2013. According to appellant, they also agreed that any document and Hundi executed in between parties would be deemed to be null and void and the said documents would, on the payment of the first installment, be destroyed on spot. Defendant paid first installment to plaintiff, but plaintiff insisted that unless next installment of Rs.82,500/- was not paid to him, Hundi would remain in his possession which defendant did not agree. 5. By order dated 17th November 2012, Trial Court granted leave in favour of defendant to defend the suit subject to the condition that defendant would deposit an amount of Rs.82,500/- by or before 17th December 2014. He deposited Rs.82,500/-. He filed written statement. He raised preliminary objection about maintainability of the suit on the ground that plaint is liable to be rejected under order VII Rule 11 CPC as plaintiff has no cause of action to institute the suit inasmuch as after settlement of accounts under new agreement prior rights and liabilities of parties to suit were extinguished and resultantly original cause of action was put to an end and plaintiff cannot revert back to original cause of action which is obliterated and wiped out altogether. Page 3 CFA no.113/2017 6. Taking into account rival contentions of parties, the Trial Court framed following issues: (i) Whether defendant borrowed Rs.3.80 Lacs as a debt from the plaintiff and on 30.04.2012 executed a promissory note hundi for the payment of the same to the plaintiff? OPP (ii) Whether the defendant has paid an amount of Rs.83,500/- to the plaintiff as first installment pursuant to the agreement dated 29.11.2013 and deposited the second installment in this Court on 06.12.2014 which the plaintiff has already received? OPD (iii) Whether the plaintiff has no cause of action to file the suit and the suit is liable to be dismissed? (iv) Relief 7. Parties were directed to adduce evidence. Plaintiff adduced three witnesses, besides himself. It would be pertinent to reproduce what witnesses of plaintiff have deposed. 8. First witness of plaintiff, namely, Jalal ud din Mir stated that he knew parties. Defendant told him that he had received an amount of Rs.3.80 lacs from plaintiff for which a pronote was require to be executed. He prepared the pronote. The contents of the same were true and correct. Witness identified his signature on the pronote, which was exhibited as EXPWJDM. He also deposed that thumb impression as well as signature on the pronote were that of defendant which was made in presence of witness besides he prepared a receipt; the contents whereof were true and correct exhibited as EXPWJDM/1, besides defendant, some witnesses affixed their signatures on the receipt. At the time of execution of pronote and receipt, defendant admitted in presence of witness that he had received the amount from plaintiff. Receipt and Hundi executed in his presence were entered in the register which was later on submitted in the record rooms. Thereafter, whether defendant paid the amount to plaintiff, witness has no knowledge. Page 4 CFA no.113/2017 In cross-examination, witness stated that defendant admitted that he had received the amount after counting the same. Witness admitted that at the time of execution of pronote and receipt, amount was received by defendant. Since defendant admitted to have received the amount, as such, same was reflected in the pronote and receipt. 9. Second witness of plaintiff, namely, Khaliq Parray, stated that he knew parties. There was some transaction in between parties. Defendant in his presence at his shop received an amount of Rs.3.80 Lacs. Thereafter witness and plaintiff went to house of defendant to get back money, but on demand of amount, the people at home of defendant manhandled plaintiff. Defendant executed a Hundi in the court premises, besides a receipt was also executed. Hundi and receipt available on file were the same which was executed and contents of the same were true and correct. Witness identified his signature as correct encircled as mark AK. Witness also deposed that defendant executed an agreement with regard to payment of Rs.1,65,000/-= since plaintiff was in dire need of Rs.1,65,000/-. Despite execution of agreement, amount was not paid to plaintiff. Plaintiff was so irked by execution of agreement that he tore it apart and threw it at the face of defendant. Witness also stated that even he approached defendant and demanded money from him on behalf of plaintiff but money was never returned by defendant. In cross-examination, witness stated that it was admitted that money was borrowed by defendant. It was probably taken by defendant while he was constructing his house. After how much time Hundi and receipt were executed, witness did not know. Witness is illiterate. Agreement, which was marked as “A”, bears the name of witness. Page 5 CFA no.113/2017 However, it does not bear signature of witness. Agreement with regard to Rs.1,65,000/- was executed at Kakpora. Who prepared the agreement, witness does not know. Witness was also present at the time of execution of agreement. Witness does not remember whether contends of Hundi and receipt were read over and explained to witness. Witness does not remember. At the time of execution of Hundi besides witness, some other persons were also present. One of the persons was from Banderpora. 10. Third witness of plaintiff, namely, Sharief ud din Shah, stated that he knew parties. In fact, plaintiff was indebted to witness. Plaintiff disclosed to the witness that he would get amount from defendant and pay the same to him. In presence of witness, plaintiff demand the amount from defendant. Defendant sought some time for repayment of the amount. Thereafter, parties appeared before petition-writer, Jalal Uddin, who prepared a Hundi besides a receipt in his presence. However, in presence of witness, amount was not taken by defendant. However, defendant admitted before the witness that he owed an amount of Rs.3.80 Lacs to plaintiff. In cross-examination, witness stated that in presence of witness, plaintiff demanded an amount of Rs.3.80 Lacs from defendant, which was admitted by defendant. Witness stated that in presence of him, defendant admitted that he owed an amount of Rs.3.80 lacs to plaintiff. Plaintiff also appeared as his own witness corroborating contents of plaint filed by him. 11. Defendant produced and examined two witnesses, besides himself. First witness of defendant was Bashir Ahmad Rather, who stated that Page 6 CFA no.113/2017 he knew parties. On 19th November 2013, partis approached him at his chamber at Kakapora. Parties stated before him that they had compromised and they wanted to reduce compromise into writing. He prepared a document and got it entered in the register. Contents thereof were read over and explained to parties. They admitted contents to be true and correct. Thereafter floods came and chamber got destroyed in floods. Agreement already marked available on the file is true and correct. In cross-examination, witness stated that register whose mention was made has not been submitted in the record. Before flash floods, Kakapora was rocked by floods. The witness stated that the register is fully damaged and he can produce the same. As such, statement of witness was deferred. He was again examined on 28th December 2016. Witness stated that he is unable to produce the register since it has been damaged by the floods and the document which witness has prepared and who were the witnesses to document witness did not remember and whether document was acted upon, witness has no information. 12. Second witness of defendant, namely, Ghulam Qadir Dar, stated that contends of agreement were true and correct, but register in which agreement was entered has got damaged. Abdul Khaliq Parray was one of the witnesses to the agreement. However, witness did not remember the names of other witnesses. In cross-examination, witness stated that registered was consigned to records at the end of March. Flood came in October 2014; six months after flood came parties had already settled their accounts. Agreement was prepared by lawyer. He is the son of witness. Abdul Page 7 CFA no.113/2017 Khaliq Parray is not fully known to witness. Witness does not know who has taken original of the agreement. It is correct, the agreement was written on the request of defendant. Defendant also appeared as his own witness and stated that there was transaction of Rs.3.80 lacs; out of which he paid Rs.2.15 Lacs to plaintiff and thereafter an agreement was executed which is marked as “A”. He stated that there is no transaction in between plaintiff and defendant. 13. It is self-evident from the pleadings of the parties that Rs.3.80 Lacs had been received by appellant/defendant from respondent/plaintiff. With respect to Rs.3.80 Lacs, Hundi and receipt had been executed by defendant in favour of plaintiff. It is also an admitted position that Rs.2.15 Lacs had been paid by defendant to plaintiff. However, defendant had failed to pay rest of the amount viz. Rs.1.65 Lacs. 14. Before the Trial Court, witness, namely, Khaliq Parray, was produced by plaintiff. The said witness during examination-in-chief has admitted that defendant had executed an agreement to pay Rs.1.65 Lacs to plaintiff, but he failed to do so. It is statement of plaintiff’s witness that plaintiff got irked and tore agreement apart and threw it at the face of defendant. It is plaintiff’s witness, who stated that agreement was executed at Kakapora. This statement of plaintiff’s witness has been corroborated by defendant’s witness, namely, Bashir Ahmad Rather. 15. The Trial Court has failed to take into account the fact that Rs.3.80 Lacs had been received by defendant; out of which Rs.2.15 Lacs had been paid by him to plaintiff. The agreement admittedly shows outstanding of Rs.1.65 Lacs to be paid by defendant. The Trial Court has also not Page 8 CFA no.113/2017 taken note of the fact that plaintiff had not made whisper about agreement executed by parties, so plaintiff has suppressed this material fact in his plaint while approaching it. The Trial Court has also not taken note of the fact that it is plaintiff’s witnesses, who admit and depose execution of agreement by parties; in terms whereof defendant was required to pay Rs.1.65 Lacs only and not Rs.3.80 Lacs as has been directed by the Trial court in terms of impugned judgement and decree. These important facts have been totally overlooked and ignored by the Trial Court while rendering impugned judgement and decree and as a corollary thereof, impugned judgement and decree call for interference. 16. Appellant/defendant has already paid Rs.82,500/- before the Trial Court when he was granted leave to defend the suit. So, rest of Rs.82,500/- is yet to be paid by him which is to be paid by defendant with interest to plaintiff. 17. In view of above, the instant appeal is allowed to the extent as indicated hereunder: “Judgement and decree dated 27th September 2017 passed by District Judge, Pulwama, in a suit under Order XXXVII CPC titled as Ghulam Nabi Rather v. Nazir Ahmad Indirabi, is set-aside. However, defendant – appellant herein, namely, Nazir Ahmad Indirabi, shall pay Rs.82,500/- to respondent/plaintiff along with interest @ 6% per annum from the date of execution of Agreement i.e., 29th November 2013 till its final realization.” 18. Decree sheet be prepared, accordingly. (Vinod Chatterji Koul) Judge Srinagar 11.02.2025 Ajaz Ahmad, Secretary Whether approved for reporting? Yes/No.