Kanshi Ram vs Rajinder

R.L. Anand, J.—Unsuccessful plaintiff has filed the present appeal and it has been directed against the judgment and decree dated 19.1.1980 passed by Additional District Judge, Karnal, who accepted the appeal of the defendant Rajinder and set aside the judgment and decree of the trial Court dated 26.5.1979 vide which the money suit of the plaintiff for the recovery of Rs. 3,800/- was decreed with costs.

The pleadings of the parties can be summarised in the following manner:-

The case set up by the plaintiff-appellant was that on Miti Asuj Sudi 10, Samat 2032 (14.10.1975) defendant Rajinder borrowed a loan of Rs. 3,000/- from the plaintiff and in this regard an entry was made in the Bahi of the plaintiff which was duly thumb marked by the defendant. The loan was repayable with interest @ Re. 1 per cent per month. But nothing has been paid by the defendant either towards the principal or interest. Hence the suit for Rs. 3,800/- as principal and Rs. 800/- by way of interest.

The suit was contested by the defendant, who took the stand that he once borrowed an amount of Rs. 800/- from the plaintiff and has fixed his thumb impression in acknowledgement of that sum and the payment of that amount had been made by the defendant. In addition, the defendant raised the plea that the suit of the plaintiff was not within limitation; that the plaintiff is money lender and has not obtained any licence for carrying out this business and that no notice or periodical statement of accounts was ever given by the plaintiff to the defendant and as such the suit is not maintainable and that the plaintiff is not entitled to claim interest etc.

From the above pleadings of the parties, the trial Court framed the following issues:-

Whether the defendant borrowed a sum of Rs. 3,000/- on 14.10.1975 from the plaintiff as alleged? OPP

To what amount, if any, the plaintiff is entitled as interest? OPP

Whether the plaintiff is a regular money lender and is not holding any licence for that purpose, if so, to what effect? OPD

Whether the suit is not within time? OPD

Whether no notice of periodical statement of the accounts was given by the plaintiff to the defendant and as such the claim for interest is not maintainable as alleged in P.O. No. 2 of the written statement? OPD

Relief.

The parties led evidence in support of their respective cases and trial Court decided issues Nos. 1 and 2 in favour of the plaintiff, while issues Nos. 3, 4 and 5 were decided against the defendant and finally the suit of the plaintiff was decreed.

Aggrieved by the judgment and decree dated 26.5.1979, the defendant filed an appeal before the Court of Additional District Judge, Karnal, who for the reasons given in paras Nos.6 to 11 of the judgment, reversed the findings of the trial Court on the material issues and dismissed the suit. These paras can be quoted as under with advantage:-

"6. Learned counsel for the appellant in the first instance assailed the findings of the trial Court on issue No. 3. It was urged that the respondent having himself placed on record the requisite money lender''s licence, it followed that the plea of the defendant was proved and consequently the finding on issue No. 5 should have been returned in favour of the respondent. I find force in the contention of the appellant''s counsel. Since the plaintiff-respondent is a registered money lender, and he failed to submit six monthly account, he was not entitled to costs and interest. The findings of the trial Court on issues 3 and 5 are modified accordingly.

Counsel then assailed the finding of the Court on issue No. 1, as well. It was argued that there was absolutely no evidence on record to substantiate the plea that any advance was made by the respondent to the appellant or that the appellant executed the Bahi entry in question in favour of the respondent.

The learned trial Judge relied on the testimony of the respondent and of one Ram Sarup in order to hold that the advance was made to the appellant. The Court also relied on the report Exhibit P.3 of the Finger Print Bureau, Madhuban. I am of the view that the learned Judge was in error, in acting upon this evidence. The respondent in his testimony nowhere stated that the advance was made in presence of Ram Sarup or that the entry was executed in his presence. In any case the statement of Ram Sarup does not repose confidence, and is wholly un-convincing. He does not belong to village Israna, where the advance is alleged to have been made. He is a resident of village Jhondhan. He stated that he had come to Israna for purchasing a plot from the plaintiff-respondent, but that the deal could not be struck. Such like excuses can always be made and I am not impressed with the testimony of Ram Sarup.

Coming now to the report Exhibit P.3 of the Finger Print Bureau, Madhuban, it would be noted that it is not admissible in evidence, because the document expert, who prepared the report was neither examined in Court, as a witness, nor on interrogatories. In the absence of this evidence, the report is not admissible, under any provision of law.

We are, therefore, left with the sole testimony of the respondent, which has been adequately rebutted by the statement of the appellant. There is no reason to prefer the statement of the respondent over that of the appellant.

Learned counsel for the appellant invited my attention to Pritam Singh v. Sarup Chand, 1976 Punjab Law Journal 277. It was observed that it is implicit in Section 12 of the Punjab Debtor''s Protection Act that inspite of the proof of the execution of the document, if the creditor is a money-lender, it is for him to show that the alleged consideration did actually pass and, that it is a departure from the normal rule of law that burden of proving the consideration is cast on the creditor. It was then said that where the only evidence produced for proving passing of consideration is the statement of the creditor and the scribe, the provisions of Section 12 of the Punjab Debtor''s Protection Act, would be rendered meaningless, because in every case the statement of the creditor in support of the passing of the consideration would be there, and, therefore, it is legally wrong to hold that the onus is discharged by the statement of the creditor, and the scribe."

This time aggrieved by the judgment and decree dated 19.1.1980, the plaintiff has filed the present appeal.

I have heard Mr. C.B. Goel, Advocate, on behalf of the appellant. Nobody has appeared on behalf of the respondent. I have also gone through the records of this case.

In the view of this Court the judgment and decree of the first Appellate Court cannot sustain in the eyes of law because the first appellate Court has not appreciated the\\law and the facts in the right perspective, as a result of which a grave miscarriage of justice has been done to the plaintiff. The case of the plaintiff was simple that he advanced a loan of Rs. 3,000/- to the defendant against a Bahi entry which was thumb marked by the defendant. Against these allegations of the plaintiff, the defendant had come with a specific plea that he at one point of time incurred a sum of Rs. 800/- from the plaintiff and put his thumb impression against that entry of loan and he had repaid the loan to the plaintiff. It may be mentioned there that there is no evidence whatsoever led by the defendant that he ever borrowed a sum of Rs. 800/- from the plaintiff or that the said loan was paid to the plaintiff. From this a reasonable inference can be drawn that the defence which has been taken up by the defendant was a false defence. Be that as it may, the plaintiff has to prove his own case and cannot rely upon the weakness of the defence and now it has to be seen whether the plaintiff has been able to prove by oral and documentary evidence that the loan was advanced to the defendant. The relevant document is Ex.P1. It is a Bahi entry dated 14.10.1975 which shows that a sum of Rs. 3,000/- was advanced to the defendant. The entry is stamped and a thumb impression also appears on it. According to the plaintiff, the entry was made in his presence. The plaintiff appeared as PW1 and has corroborated his case by stating that he paid the amount to the defendant in the presence of Ram Sarup, who too appeared as PW2 and has corroborated the statement of the plaintiff. Moreover, the statement of the plaintiff has been corroborated by the account-books which have been duly maintained in the ordinary course of business and this part of the evidence is admissible u/s 34 of the Indian Evidence Act. The first appellate Court had non-suited the plaintiff mainly on the ground that the name of Ram Sarup does not figure in the plaint. The first Appellate Court ignored the fact and the basic principle of law that the evidence is not supposed to be pleaded in the plaint. There is nothing on record to suggest that Ram Sarup was inimical to the defendant or that he was deposing falsely at the behest of the plaintiff. Ram Sarup PW2 has cogently explained about his presence on the relevant date at the shop of the plaintiff. His statement cannot be brushed aside simply on the ground that he hails from a village which is different from the place where the loan was advanced. If Ram Sarup for his personal work has come at the shop of the plaintiff and has witnessed the transaction, there is no wrong in it. The sweeping remarks made by the fist Appellate Court that the witnesses like Ram Sarup can be conveniently arranged, are without justification and without any basis. The first Appellate Court has dismissed the suit on one more ground that the report of the hand-writing expert is not per se admissible. Assuming for the sake of arguments, it was not per se admissible, still there was a direct evidence which was easily available.

Since the execution of the document has been proved and the advancement of the loan has also been proved by the statements of PW1 Kanshi Ram and PW2 Ram Sarup and there is no evidence on the record to show that the defendant ever made the repayment of the loan, the trial Court rightly decreed the suit of the plaintiff.

With regard to the interest, I am inclined to agree with the observations made by the first Appellate Court that the plaintiff is not entitled to interest. So far as the costs are concerned, there is no bar under the law.

Resultantly, this appeal is partly allowed, the judgment and decree of the first Appellate Court is hereby modified and the suit of the plaintiff for a sum of Rs. 3,000/-is hereby decreed against the defendant with costs of the trial court and that of the High Court.