Janak Raj vs Mohinder Singh

R.L. Anand, J. (Oral)

Though this appeal can be dismissed in default for want of prosecution as nobody has come from the side of the appellant yet I am disposing of this appeal on merits with the assistance rendered by the learned counsel for the respondent.

Unsuccessful plaintiff Shri Janak Raj son of Shri Behari Lal has filed the present Regular Second Appeal and it has been directed against the judgment and decree dated 19.11.1979, passed by the District Judge, Kapurthala who affirmed the judgment and decree dated 26.10.1978, of the trial Court, vide which, the suit of the plaintiffappellant Janak Raj, was dismissed.

The case set up by the plaintiff in the trial Court was that on 3.6.1974, defendant Shri Mohinder Singh, took a loan of Rs. 5400/ and executed a pronote and receipt in lieu thereof. The defendant also agreed to pay interest at the rate of 3.12 Annas per month, but in the suit, the plaintiff has claimed relief of interest at the rate of 12 per cent per annum only. The plaintiff has claimed Rs. 4,000/ as principal and Rs. 1400/ as interest.

Notice of the suit was given to the defendant who filed the reply and denied the allegations of the plaintiff. The defendant alleged that the plaintiff was a money lender and that he has no licence. The defendant, further, stated in the reply that pronote was certainly executed in favour of the plaintiff but the amount of the pronote along with interest was paid to the plaintiff on 18.12.1974 and the plaintiff executed a receipt in this regard. The plaintiff gave a notice which was duly replied by the defendant. On these small pleadings of the parties, the trial Court framed the following issued :

Whether the plaintiff is a money lender and has no licence, if so to its effect ? OPD

Whether the defendant has already made payment of the amount on 18.12.1974 ? OPD

Relief.

The parties led oral as well as documentary evidence in a support of their case and on the conclusion of the trial the suit of the plaintiff was dismissed.

Aggrieved by the judgment and decree of the trial Court, the plaintiff filed an appeal before the Court of District Judge, Kapurthala, who, for the reasons given in paras No. 7, 8, 9, 10, 11, 12, 13, 14 and 15, dismissed the appeal and affirmed the judgment and decree of the trial Court, vide judgment dated 19.11.1979. In this manner, the plaintiff has come in the second appeal.

The short point for determination in this case is whether the defendant had already made the payment of the amount to the plaintiff on 18.12.1974 ? In this regard, the defendant has successfully discharged the onus when he appeared as his own witness as DW1 and categorically stated that he made the payment of Rs. 4811.20 to the plaintiff Janak Raj, in the presence of Fauja Singh, Binda Singh and Mohinder Singh and obtained a receipt from the plaintiff. The witness has further stated that the receipt was scribed by Binda Singh and Shri Janak Raj signed the receipt after understanding and accepting its contents. The statement of DW1 is corroborated by the statement of Shri Binda Singh, who, appeared as DW2 besides Shri Fauja Singh DW3. In the light of the direct statements made by the witnesses, there is no difficulty in holding that receipt Ex. D.1 has been executed by Shri Janak Raj plaintiff.

On behalf of the plaintiff the attack on receipt Ex. D.1, was on two grounds, firstly, that the defendant did not obtain the pronote when the money was allegedly paid to the plaintiff vide Ex. D.1. I do not subscribe to this reason advanced by the plaintiff. There is a clear mention in the receipt Ex. D.1 itself that the payment is being made in lieu of the pronote dated 3.6.1974 executed by the defendant. It is not always necessary that the executor of the pronote must demand the return of the document against which the loan was advanced. When the plaintiff advanced the loan of the defendant, the defendant could also rely upon the trust of the plaintiff. Moreover, in this case, evidence has come that why the pronote was not returned to the defendant. The defendant has stated that the plaintiff made a representation that the pronote was lying at a difficult place and he would return the pronote in due course. The second attack of the plaintiff on the receipt was that the attesting witnesses of the receipt S/Shri Mohinder Singh and Fauja Singh belong to the community of the defendant. This is no argument to reject the defence of the defendant. We all know that when a loan is advanced to a person, invariably, the plaintiff gets the attestation on loan document of those persons, who may, ultimately, help the plaintiff in case of necessity. Similarly, when a person makes the payment he can also rely upon a person of his confidence. In this case the plaintiff had tried to disprove the case of the defendant by making his own statement and he has examined Shri K.S. Puri, Document Expert. Both the Courts below have rightly came to the conclusion after invoking the provision of Section 73 of the Indian Evidence Act that the receipt Ex. D.1 has been executed by the plaintiff. If this is so, the suit of the plaintiff was misconceived. The concurrent findings with regard to the payment already received by the plaintiff, cannot be disturbed in the appeal. Resultantly, I do not see any merit in this appeal and dismiss the same. No order as to costs.