Hastimal Jain vs Sohan Singh Rajput

Hon''ble Shri N.K. Mody, J.—This appeal was admitted for final hearing by this Court vide order dated 4.12.2004 on the following substantial questions of law :

i) Whether the learned appellate Court was justified in reversing the decree passed by the trial Court which had decreed the plaintiff''s suit ?

ii) Whether the suit on the strength of Ex.P/1 which is duly executed by the defendant in favour of the plaintiff-a receipt was the lower appellate Court justified in dismissing the suit by reversing the decree ?

Being aggrieved by judgment dated 6.8.2004 passed by 1st Addl.District Judge, Dhar in Civil Appeal No.1-B/2004, whereby judgment and decree dated 19.11.2003 passed by Civil Judge Class I, Badnawar in Civil Suit No.23-B/2002, whereby suit filed by the appellant was decreed was set aside, present appeal has been filed.

Short facts of the case are that appellant filed a suit on 11.2.2002 for recovery of Rs.43,500/-alleging that appellant lent a sum of Rs.41,000/-on 23.2.2000 for which the receipt was executed by the respondent in favour of the appellant. It was alleged that the amount is not repaid by the respondent inspite of demand and also the notice dated 27.11.2001, which was duly served on the respondent. It was alleged that cause of action was accrued to the appellant w.e.f.23.2.2001. It was prayed that money decree for Rs.43,500/-be passed in favour of the appellant. The suit was contested by the respondent by filing written statement, wherein the plaint allegations were denied. It was alleged that respondent is a man of means, respondent has purchased the cement, medicines and fertilizers before three years valuing Rs.70,000/-against which a sum of Rs.40,000/-was paid and balance amount of Rs.30,000/-alongwith interest @ 3% per month. It was alleged that after a year a sum of Rs.14,000/-was paid on 16.10.2001, which includes interest of Rs.11,000/-, which was payable to the appellant. It was alleged that respondent has paid a sum of Rs.20,000/-after sale of Soyabean crops and again paid a sum of Rs.14,000/-. It was alleged that upon demand the receipt was not given. It was prayed that suit be dismissed. After framing of issues and recording of evidence learned trial Court decreed the suit against which an appeal was filed, which was allowed and the judgment passed by the learned trial Court was set aside against which present appeal has been filed.

Shri B.S.Gandhi, learned counsel for appellant, submits that impugned judgment passed by learned appellate Court is illegal, incorrect and deserves to be set aside. It is submitted that learned appellate Court committed error in allowing the appeal filed by the respondent. It is submitted that learned appellate Court committed error in holding that since the appellant has not produced a book of accounts, therefore, the appeal deserves to be dismissed. It is submitted that since the respondent admitted that respondent purchased the goods from the appellant and an amount of Rs.30,000/-was outstanding, therefore, burden was on the respondent to prove the fact that the amount was repaid by the respondent to the appellant. Learned counsel submits that learned appellate Court committed error in holding that document Ex.P/ 1 does not bear the signature of respondent. It is submitted that learned trial Court held that Ex.P/1 was executed by the respondent. It is submitted that in the facts and circumstances of the case appeal filed by the appellant be allowed and the impugned judgment passed by learned appellate Court be set aside.

Inspite of service and also inspite of issuance of SPC respondent is absent.

There are number of grounds on the basis of which it can be said that the judgment passed by learned appellate Court requires no interference, which are as under :

i) In the plaint it is alleged that appellant paid a sum of rs.41,000/-to the respondent on 23.10.2000 in cash and to prove this fact except the document Ex.P/1 and the statement of appellant there is no evidence.

ii) Appellant has not proved the fact that, who has filled in the document Ex.P/1.

iii) Appellant has admitted that appellant is maintaining the books of account but the books of account were not brought to the Court inspite of demand. Appellant himself has admitted that there is no entry in the books of account of the loan amount, which was given to the respondent for which the explanation is given that since the loan amount was out of the agricultural income, therefore, there is no entry in the books of account. At the same time appellant has admitted that appellant is earning Rs.20 to 25,000/-per year from agricultural income and he has not earned more than Rs.5 to 7,000/-in that account in last three years due to drought. Statement of appellant was recorded on 4.3.2003, while alleged transaction is dated 23.2.2000.

iv) There is no evidence to prove that the notice Ex.P/1 was in fact served on the respondent.

v) Appellant has shown his ignorance about the fact that whether the appellant is income tax assessee or not.

vi) Appellant has admitted that the loan was given tot he respondent for the first time while the appellant is having business transaction with the respondent. He has also stated that he does not remember whether there was a commercial transaction between the appellant and respondent for a sum of Rs.70,000/-and on that account any amount is outstanding or not while case of the respondent is that there were commercial transaction between the parties and the amount was paid on that account.

vii) Respondent has stated that he has paid the amount of business transaction in two installments out of which Rs.20,000/-was paid before Banesingh and Rs.21,000/-before Bherusingh and both of them were examined and there is no reason to disbelieve them.

In the facts and circumstances of the case, this Court is of the view that learned appellate Court was justified in reversing the decree passed by the learned trial Court, which has decreed the plaintiff''s suit. This Court is also of the view that learned appellate Court was justified in dismissing the suit by reversing the decree inspite of alleged execution of Ex.P/1 by the respondent in favour of the appellant. In view of this appeal filed by the appellant has no merits and the same stands dismissed. No order as to costs.