ANITA RANI versus ASHOK KUMAR & ORS

Citation: [2021] 13 S.C.R. 964 · Decided: 16-12-2021 · Supreme Court of India · Bench: HEMANT GUPTA · Disposal: Appeal(s) allowed

Judgment (excerpt)

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SUPREME COURT REPORTS
[2021] 13 S.C.R.
ANITA RANI
v.
ASHOK KUMAR & ORS
(Civil Appeal Nos. 7750-7751 of 2021)
DECEMBER 16, 2021
[HEMANT GUPTA AND V. RAMASUBRAMANIAN, JJ.]
Civil Suit: Suit for Recovery of Money – In the instant case,
appellant filed two suits against respondents for recovery of money
– Appellant and respondents are relatives – In the first suit,
respondents borrowed a sum of Rs.10,50,000/- from the appellant
by way of a cheque, out of which Rs.5,00,000/- was refunded by
respondents and promised to repay the balance within six months
but failed to refund – In the second suit, appellant and her husband
joined respondent in his real estate business in which various
amounts were either withdrawn from or transferred out of appellant’s
accounts by the respondent unauthorisedly amounting to
Rs.54,50,000/- – Trial Court dismissed both the suits – First appellate
court allowed the appeals – Respondents filed appeals before High
Court which were allowed resulting in dismissal of the two money
suits – On appeal, held: In the first suit, the defence set up by the
respondents was that the payment of Rs.5,00,000/- made by them
was by way of full and final settlement – However, no receipt and
written memorandum of compromise/settlement were taken by
respondents from the appellant – When a party pleads part
repayment in full and final settlement of certain some of money, the
onus is upon him to show that there was a settlement – This onus
was not discharged by the respondent – Hence, the appellant entitled
to succeed in the first suit – In the second suit, defence of the
respondents was that the amounts represented authorized payments
for the purchase and sale of properties in a real estate business
and that out of those amounts, a sum of Rs.30,00,000/ was treated
as a payment made out of love and affection – The onus was on
defence to show that there were business dealings, however, no
books of accounts were produced by the defence to show that the
amounts flowed out for business dealings – If the appellants had
treated Rs. 30,00,000/ as one made out of love and affection, there
[2021] 13 S.C.R.964
964
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could have been no occasion for dispute requiring mediation,
resulting in the payment of Rs.5,00,000/- by respondents to appellant
in full and final settlement in an interval of five months – The only
piece of evidence on the basis of which the gratuitous nature of
payment is sought to be proved is an affidavit sworn by appellant,
but it did not contain the signature of the appellant – Hence, plea
of gratuitous payment was not established by the respondents –
Suit decree.
Allowing the appeals, the Court
HELD: 1. The first suit was for recovery of a sum of
Rs.5,50,000/-, which remained unrefunded, out of the amount of
Rs.10,50,000/- allegedly paid by way of loan. The receipt of
Rs.10,50,000/ by way of cheque dated 18.11.2003 was admitted
by the respondents. Similarly the repayment of Rs.5,00,000/ by
the respondents to the plaintiff appellant on 7.08.2006 is admitted
by the appellant. The only defence set up by the respondents
was that the payment of Rs.5,00,000/made by them on 7.08.2006
was by way of full and final settlement. To show that there was a
full and final settlement, the respondents examined two third party
mediators. But no receipt was taken by the respondents from
the appellant that the payment of Rs.5,00,000/on 7.08.2006 was
in full and final settlement. There was also no written
memorandum of compromise/settlement. When payment of a
certain amount of money and the repayment of only a portion of
the same are admitted, the party pleading that such a part
repayment was in full and final settlement, has a huge burden
cast upon him to show that there was a settlement. Oral evidence
of the so called third party mediators, is not sufficient to establish
full and final settlement, in cases of this nature, where all
transactions have happened only through banking channels and
the defendants claimed that there were business transactions. It
is unbelievable that the respondents, who reached such a
settlement, failed to have the same recorded in black and white,
either in the form of a memo or in the form of a receipt. This onus
was not discharged by the respondents in the first suit and, hence,
the plaintiff was entitled to succeed in the first suit. The High
Court completely overlooked this aspect. [Paras 16,18][971-C-
G; 972-D]
ANITA RANI v. ASHOK KUMAR & ORS.
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