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2001 DIGILAW 458 (MP)

Ravindra Kumar v. Tarachand

2001-06-27

S.B.SAKRIKAR

body2001
JUDGMENT This judgment shall govern the disposal of the aforesaid appeals filed by the respective parties against the judgment and the decree dated 19th November, 37B/92. Appellant-defendants Ravindra Kumar and others have filed Civil Appeal No. 55/94 being aggrieved by the aforesaid judgment and the decree passed by the trial Court thereby passing a decree for the payment of Rs. 25,000/- together with the cost of the suit in favour of plaintiff respondent Tarachand and against the appellants. Plaintiff-appellant Tarachand, by filing Civil F.A. No. 91/94, has challenged the impugned decree for not awarding the interest from the date of the suit till realisation of the decretal amount. Briefly stated, the facts of the case are that plaintiff Tarachand has filed a suit against defendants Ravindra Kumar and Ushabai for the recovery of Rs. 25,000/- alongwith the future interest @ Rs. 1.50 ps. per month from the date of filing of the suit till realisation of the amount against the defendant on the basis of the promissory note dated 1.1.1990 executed by the defendants in favour of the plaintiff. The plaintiff's suit was resisted by the defendants on the ground that the signatures of the defendants were obtained on the suit-promissory note by way of security for the amount advanced by the plaintiff Tarachand to one Yuvaraj for purchasing a motorcycle. The contention of the defendants is that they have not received any consideration in connection with the alleged promissory note. The learned trial Court framed the issues and 00 evaluating the evidence adduced on behalf of the parties, decreed the plaintiff's suit only for Rs. 25,000/- and cost and disallowed claim for future interest from the date of the suit till the realisation of the aforesaid amount. Being aggrieved by the aforesaid judgment and the decree of the trial Court, the defendants, as also the plaintiff, have filed two separate appeals as indicated above. I have considered rival submissions of the LC for parties appearing in the respective appeals. The only contention of the learned counsel for the defendant appellant is that from the evidence of the plaintiff, the passing of consideration of Rs. 25,000/- from plaintiff Tarachand to the defendants is not established and the trial Court has committed an error in decreeing the plaintiff's suit for the aforesaid amount. The only contention of the learned counsel for the defendant appellant is that from the evidence of the plaintiff, the passing of consideration of Rs. 25,000/- from plaintiff Tarachand to the defendants is not established and the trial Court has committed an error in decreeing the plaintiff's suit for the aforesaid amount. As against this, the learned counsel for plaintiff-appellant Tarachand submitted that the defendants have admitted the execution of the alleged promissory note. As such, in view of the provisions of section 118 of the Negotiable Instruments Act, the burden to prove want of consideration shifts on the defendants. The learned counsel submitted that from the evidence of the defendants, it is not established that the alleged promissory note was executed by the appellant-defendants only by way of security for the amount advanced by the plaintiff Tarachand to one Yuvaraj for purchasing a motorcycle. As such, the impugned decree, decreeing the suit of the plaintiff for the recovery of Rs. 25,000/-, requires no interference. Learned counsel for plaintiff Tarachand has also contended that as the plaintiff's suit was decreed, the trial Court has committed an error in not awarding future interest at the contractual rate from the date of the suit till the realisation of the decretal amount in view of the provisions of section 34 of the CPC. Reliance was placed on the Division Bench decision of this Court in case of Vimladevi v. Mandsaur Electric Supply Co. (1963 JLJ 779). I have considered rival submissions of the learned counsel for parties and carefully perused the record as also the evidence of the parties recorded by the trial Court. On perusal, it emerged that in the written statement, the appellant-defendants Ravindra Kumar and others, in paragraph No.1 of the written statement, have admitted execution of the alleged promissory note and also admitted their signature on the same but denied receipt of the consideration of Rs. 25,000/- in cash. As the defendants have admitted the execution of the suit promissory note, in view of the provisions of section 118 of the Negotiable Instruments Act, the burden shifts on the defendants to prove that the .said promissory note was executed without payment of any cash consideration. From the statements of the defendants and the witnesses, the aforesaid fact is not proved. From the statements of the defendants and the witnesses, the aforesaid fact is not proved. The learned trial Judge, on evaluating the evidence of the parties and on proper appreciation, has rightly recorded finding of issue No. 1 against the defendant-appellant and has committed no error in decreeing plaintiff's suit for the payment of Rs. 25,000/- to the plaintiff and no interference is required in the aforesaid finding of the trial Court in the impugned judgment. With regard to payment of interest from the date ·of the suit till its realisation, the trial Court has committed an error in disallowing the future interest. On behalf of the defendants, in the written statement, no objection was raised that the plaintiff is a money lender and the provisions of the Money Lender Act applied to the instant suit. As such, only on assuming that the alleged amount of the promissory note was given to the defendants by way of money lending and disallowing the future interest was not proper and the trial Court has· committed an error in disallowing the future interest in view of the provisions of section 34 of the CPC. From the evidence available on the record, it is not established that the suit transaction falls under the category of a commercial transaction. As such, in view of the amended provisions of section 34 of the CPC, the plaintiff-appellant Tarachand is not entitled for the future interest at the contractual rate @ Rs. 1.50 ps. per cent per month. However, the plaintiff-appellant is found entitled under the provisions of section 34 of the CPC. In the result, First Appeal No. 55/94 filed on behalf of the defendant appellants being devoid of any merit and substance, deserves the fate of dismissal and it is accordingly dismissed. Whereas Civil First Appeal No. 91/94 filed on behalf of plaintiff-appellant Tarachand is partly allowed and the impugned decree of the trial Court is modified only to the extent of payment of interest from the date of the suit till the realisation of the decretal amount @ 6% p.a. in favour of the appellant-plaintiff. The remaining part of the decree of the trial Court stands affirmed. The parties are left to bear their own costs of both the appeals. Counsel fee as per schedule is allowed, on certificate. A copy of the judgment be placed on the record of connected First Appeal No. 91/94. The remaining part of the decree of the trial Court stands affirmed. The parties are left to bear their own costs of both the appeals. Counsel fee as per schedule is allowed, on certificate. A copy of the judgment be placed on the record of connected First Appeal No. 91/94. Decrees be drawn up accordingly.