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2004 DIGILAW 465 (MP)

Banshilal Kharakwar v. Narbada Prasad Chaurasia

2004-05-12

S.L.JAIN

body2004
ORDER 1. This is an appeal under section 96 of the Code of Civil Procedure filed by the appellant-defendant against the judgment and decree dated September, 8, 1994, passed by XIIth Additional District Judge, Jabalpur, in Civil Suit No. 7-B/94, whereby the plaintiff's suit for the recovery of Rs. 23,831.00 has been decreed in part. 2. Brief resume of the facts required to be stated for disposal of this appeal is as follows : The respondent-plaintiff filed a suit against the appellant-defendant alleging that the defendant was known to him. On 27.11.1982 he approached him and requested him that he intended to purchase a plot for which he is in dire need of Rs. 14,000.00. The defendant assured the plaintiff that very shortly he will return the money. Keeping in view the need of the defendant, he advanced him a sum of Rs. 14,000.00 for which the defendant executed a document, Ex. P-l and agreed to pay interest at the rate of 2% per mensem on the amount advanced. 3. After some time the plaintiff repeatedly demanded back from the defendant the money advanced and interest thereon, but the defendant on some pretext or the other, avoided the payment. Therefore, on 31.10.1985, the plaintiff was compelled to send a registered notice to the defendant demanding the amount advanced, which returned unserved with the remark that the addressee is not available in spite of the information given for six days. Thereafter, the plaintiff filed the suit for recovery of the principal amount of Rs. 14,000.00, interest thereon from 27.11.1982 till 19.11.1985 being Rs. 9,730.00 and Rs. 101.00 towards notice expenses. The plaintiff also claimed interest pendente lite. 4. Combatting the allegations made in the plaint, the appellant-defendant filed his written statement and denied the allegations made in the plaint. The defendant stated that he never received any amount from the plaintiff. He has denied the execution of document, Ex. P-1. It was put forth by the appellant-defendant that the plaintiff is a moneylender. He could not have filed the suit without obtaining the moneylender's certificate. The defendant also pleaded that he belongs to scheduled caste. Provisions of M.P. Anusuchit Jati and Anusuchit Janjati Rini Sahayata Adhiniyam, 1967 apply to the transaction, in question, and the Civil Court had no jurisdiction to decide the suit. 5. He could not have filed the suit without obtaining the moneylender's certificate. The defendant also pleaded that he belongs to scheduled caste. Provisions of M.P. Anusuchit Jati and Anusuchit Janjati Rini Sahayata Adhiniyam, 1967 apply to the transaction, in question, and the Civil Court had no jurisdiction to decide the suit. 5. The trial Court framed as many as six issues and after appreciation of the evidence adduced by both the parties, held that the plaintiff is entitled to Rs. 14,000.00 with interest at the rate of 12% per annum from 27.11.1982 till the date of realization of the amount, and thus, partly decreed the suit. 6. I have heard Shri Ramesh Shrivastava, learned counsel appearing for the appellant and Shri K.P. Verma, learned counsel appearing for the respondent and perused the record of the trial Court. 7. Learned counsel for the appellant argued that the trial Court has not appreciated the evidence properly and committed an error in relying on the evidence of the plaintiff and the handwriting expert. 8. I have carefully scrutinized the evidence adduced by both the parties. The plaintiff, who has been examined as PW 1, has stated that on 27.11.1982 a sum of Rs. 14,000.00 was advanced by him to the defendant. Acknowledgment, Ex. P-l was executed by the defendant. There is nothing in the cross examination of the plaintiff to discredit his testimony. His evidence is further corroborated by the evidence of K.R. Pillay (PW 2), the handwriting and fingerprint expert, who has stated that he examined the signature on disputed document and standard signature in original and enlarged photographs. After thorough comparison he opined that the disputed signature, D-1 and standard signature were made by one and the same person. The witness has given detailed reasons for his opinion. 9. Learned counsel for the appellant argued that only on the basis of hand or wrist movement the findings could not have been given that the disputed signature and standard signature are of one and the same person. 10. The opinion of the handwriting expert is based on the cumulative effect of the comparison on the basis of wrist-movement, spacing, pressure and position of pen, alignment, speed and pictorial effect, etc. I find nothing to discard the evidence of handwriting expert, who has recorded his opinion giving detailed reasons therefor. 11. 10. The opinion of the handwriting expert is based on the cumulative effect of the comparison on the basis of wrist-movement, spacing, pressure and position of pen, alignment, speed and pictorial effect, etc. I find nothing to discard the evidence of handwriting expert, who has recorded his opinion giving detailed reasons therefor. 11. Learned counsel for the appellant also contended that K.R. Pillay (PW 2) cannot be said to be a handwriting expert. He does not possess any diploma or degree. 12. The witness has specifically stated that no degree or diploma is required for a handwriting expert. He has stated that he got training from his father, T.M.B. Pillay who was in profession as handwriting expert for a period of 40 years and also from Shri M.B. Dixit, consultant of M.P. Government. He has further stated that he is in this profession since last 24 years and has appeared as witness in many cases. Therefore, the finding of the trial Court that K.R. Pillay is a handwriting expert cannot be disturbed. Even in absence of the evidence of handwriting expert the evidence of the plaintiff that he advanced a sum of Rs. 14,000.00 to the defendant, who executed document, Ex. P-1 cannot be doubted. The trial Court has believed this evidence giving cogent and detailed reasons for the same. There are no compelling reasons to arrive at different conclusion. The appellate Court should permit findings of fact to prevail unless there is sufficient balance of probabilities to displace the opinion of the trial Court as to the credibility. 13. Learned counsel for the appellant also argued that the plaintiff is a moneylender and no suit for the recovery of the loan advanced by him could have proceeded in the trial Court until he could satisfy the Court that he had a valid registration certificate. 14. The contention cannot be accepted. There is no material on record to prove that the plaintiff is a moneylender. There is no evidence that the plaintiff in the regular course of business advances loan. Although the defendant in his examination-in-chief has said that the plaintiff is a moneylender but in the cross examination he admitted that on the basis of hearsay information he has stated that plaintiff is a moneylender. The plaintiff has denied that he is a moneylender. There is no evidence that the plaintiff in the regular course of business advances loan. Although the defendant in his examination-in-chief has said that the plaintiff is a moneylender but in the cross examination he admitted that on the basis of hearsay information he has stated that plaintiff is a moneylender. The plaintiff has denied that he is a moneylender. If only an isolated act of advancing money is shown to the Court, it cannot be stated that the same constitutes a regular course of business. The words "in the regular course of business" signify certain degree of system and continuity of transaction. By advancing one or two loans, a person does not become a moneylender. The burden of proving that the plaintiff was a moneylender was on the defendant but the defendant could not give an iota of evidence to prove that the plaintiff was a "moneylender" as defined in M.P. Money Lenders Act. 15. Learned counsel for the appellant contended the learned trial Judge committed a grave error in awarding interest to the plaintiff. In the absence of an agreement for the payment of interest the trial Court could not have awarded the interest. The learned counsel for the respondent-plaintiff submitted that at the time of execution of document, Ex. P-l the defendant agreed to pay interest at the rate of 2% per mensem on the principal sum, but the defendant has denied such oral agreement. 16. Had there been an agreement to pay interest, the plaintiff could have insisted to incorporate that term in the document Ex. P-l. In the absence of any term of interest incorporated in the document, the trial Court could not have granted interest, more so when the defendant has denied any agreement regarding payment of interest. 17. Learned counsel for the plaintiff-respondent also submitted that as the money advanced to the defendant was not returned by him in time, he could not invest that money in the business and thus suffered a loss, therefore, the plaintiff is entitled to interest by way of compensation. 18. There is no law that such interest can be awarded by way of compensation. 18. There is no law that such interest can be awarded by way of compensation. In the absence of any agreement, or in the absence of any notice under Interest Act that from the date of notice interest shall be payable, or in the absence of any statutory provision, the trial Court could not have awarded the interest to the plaintiff. Therefore, the impugned decree of the trial Court, so far as it relates to granting interest on the principal sum from the date of transaction till the date of filing of the suit, is not justified and is liable to be set aside on this count. 19. So far as the interest from the date of filing of the suit till the date of realization of principal sum is concerned, under the provisions of section 34 of the Code of Civil Procedure, the rate of interest pendente lite cannot exceed 6%. The transaction between the parties is not a commercial one, therefore, the proviso to section 34 of the Code of Civil Procedure is not applicable and the interest that could have been awarded pendente lite could not have exceeded to 6%. 20. For the reasons stated above, the judgment and decree of the trial Court, so far as it relates to payment of principal sum of Rs. 14,000.00 (Rupees forte en thousand), is hereby maintained. The respondent-plaintiff shall not be entitled to any interest from the date of transaction till the date of filing of the suit. However, he shall be entitled to interest at the rate of 6% (six percent) per annum, payable by the appellant-defendant on the principal sum, from the date of the suit till the date of realization. In the facts and circumstances of the case, parties shall bear their own consts. 21. With the above modification in the impugned judgment and decree, the appeal stands partly allowed.