Budhu Badhai vs Bishnu Patel

Dr.A.K.RATH, J.

Defendant is the appellant against a reversing judgment.Â

Plaintiff-respondent instituted the money suit for realization of Rs.3,500/- from the defendant. Case of the plaintiff was that defendant belongs to his

village. The defendant approached him for a loan of Rs.3,500/-. On 30.9.1985, he advanced loan of Rs.3,500/-. The defendant executed an agreement

to pay back the loan amount by the end of Falguna. He requested the defendant number of times to repay the same, but the defendant did not pay any

heed to it. He sent a notice through his lawyer to the defendant demanding loan amount. There was no response. With this factual scenario, the suit

was instituted seeking the relief mentioned supra. Â

The defendant entered contest and filed a written statement denying the assertions made in the plaint. According to him, he had not incurred any

loan from the plaintiff. The document in question was a fabricated one. The specific case of the defendant is that plaintiff was a regular moneylender.

He had no licence.Â

On the inter se pleadings of the parties, learned trial court framed seven issues. Parties led evidence. Learned trial court dismissed the suit holding,

inter alia, that the plaintiff is a professional moneylender. He has no licence. Feeling aggrieved, the plaintiff filed Money Appeal No.1 of 1992 before

the learned District Judge, Sundargarh. Learned appellate court came to hold that the plaintiff is not a regular moneylender. The defendant took a loan

of Rs.3,500/- from the plaintiff, vide Ext.1. The defendant has taken a plea from escaping the liability. Held so, it allowed the appeal and directed the

defendant to pay an amount of Rs.3,500/- to the plaintiff with interest at the rate of 12% per annum and costs.Â

The Second Appeal was admitted on the substantial questions of law enumerated in A, B & C of ground no.vii of the appeal memo. The same are :

“(A) Whether on the basis of evidence on record that the plaintiff used to keep gold and silver ornaments on Mortgage and was lending money

to villagers, it can be held that he was a Money Lender in the regular course of business, when he did not possess the required Licence ?

(B) Whether the suit is maintainable when the plaintiff possessed no Licence and was lending money to others keeping mortgaged articles ?

(C) Whether it can be proved that plaintiff had lend Rs.3,500/- to the Defendant when the allegation was that Ext.1 was a forged document ?â€​

Heard Mr.Debasis Pattnaik, learned Advocate on behalf of Mr.S.C.Mohanty, learned Advocate for the appellant. None appears for the

respondent.Â

Mr.Pattnaik, learned Advocate for the appellant submits that plaintiff was a regular moneylender. He had no licence. The plaintiff used to advance

loan to different persons. The defendant had examined witnesses to substantiate his plea that the plaintiff was a regular moneylender. Learned trial

court dismissed the suit, but then on untenable and unsupportable grounds. Learned appellate court is not justified in reversing the judgment on the

ground of non-examination of persons to whom loan had been advanced. There was no reason for the appellate court to discard the testimony of the

defendant.Â

The defendant had examined three witnesses including himself to substantiate the plea that the plaintiff was a regular moneylender. On scanning of

the evidence, learned appellate court came to hold that D.W.1 in his evidence stated that the plaintiff used to keep gold and silver ornaments on

mortgage and advance loan to the poor villagers. In cross-examination, he stated that he was not present when the plaintiff advanced loan to different

persons, but he was present when the plaintiff advanced a sum of Rs.1,500/- to the defendant. D.W.2 stated that the plaintiff used to advance loan to

one Budhu and Kalia. Those persons had not been examined. D.W.3, defendant, stated that the plaintiff was a moneylender. He advanced loan to

Chhai, Patel, Kalia Seth and Budhu Patel. There was no document to show that loan had been advanced to those persons. It further held that the

defendant had taken a plea from escaping the liability. These are essentially findings of fact. There is no perversity or illegality in the same.Â

The suit has been filed for realization of Rs.3,500/-. The interest as awarded by the learned appellate court is exorbitant. This Court is of the view

that the decreetal amount shall carry interest at the rate of 9% per annum from the date of disbursement of loan till realization. The substantial

questions of law are answered accordingly.Â

Resultantly, the appeal is allowed in part. The suit is decreed to the extent indicated above. Â