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2005 DIGILAW 60 (JK)

High Land Fashions v. J&K Bank Ltd.

2005-03-22

MANSOOR AHMAD MIR

body2005
1. It seems that respondent has filed a suit for recovery of an amount of Rs.6,38,909/- with interest against the plaintiff in this court on 15.10.1993 which came to be transferred to the court of District Judge (Bank Cases), Srinagar vide order of this court dated 8th September, 1995. The appellants/defendants have filed written statement and after filing written statement, the following issues have been framed; - 1. Whether the defendant borrower has not executed D/P note on 1-4-89 regarding an amount of Rs. 3,15,038.35? OPD. 2. Whether the plaintiff bank has not served any demand notice on the borrower and other defendants for repayment of the outstanding amount? OPD 3. Whether the turmoil in the valley has rendered the unit of the borrower sick and the borrower has become insolvent and he is not as such liable to pay the amount outstanding against him ? OPD 4. Whether the copy of statement of accounts annexed with the plaint is not correct as the accounts have not been rendered property? OPD 5. Whether the plaintiff has no cause of action to file the suit? OPD 6. Whether the valuation shown is improper if so what should have been the valuation of the suit? OPD 7. Relief. 2. The defendants were directed to lead evidence at the first instance. The defendants have examined three witnesses, namely, Abdul Rashid Mir, Nissar Ahmad Wani, Wajahat Hussain and Manzoor Ahmad Jan one of the defendant has also appeared in the witness box. The plaintiff has also examined witnesses, namely, Syed Muzaffar, Ghulam Ahmad Regoo and Aftab Ahmad. After hearing learned counsel for the parties, the Additional District Judge (Bank Cases), Srinagar has passed the judgment and decree dated 22nd May, 2000, hereinafter referred to as impugned judgment and decree. 3. The appellants have assailed the impugned judgment and decree on the grounds taken in the memo of appeal, which are summarized as under; - That the suit has been presented by incompetent person; that the suit was barred by limitation; the trial court has exceeded the jurisdiction vested in it; the learned judge has not appreciated the evidence; the learned judge has fixed the onus of proving the issues on defendants, but under law the onus of proof was to be discharged by the plaintiff/ respondent. 4. 4. In order to marshal and thrash out thesaid pleas raised by the appellants, it is profitable to give a brief resume of the case in hand herein; - The plaintiff has filed the suit with the averments that defendants/ appellants 2 to 4 have filed an application for grant of cash credit facility, before Jammu & Kashmir Bank Branch Office, Residency Road, Srinagar in the year 1984, for purposes of expansion of their business, in their favour. The appellants 2 to 4 (defendants 2 to 4) agreed to abide by and adhere to the rules and regulations governing the grant and also agreed to hypothecate with the plaintiff bank/ respondent all stocks in trade. The respondent exceeded to the request and accordingly, the documents mentioned in para-1 of the impugned judgment and in para-4 of the plaint were executed by defendants/ appellants. The appellant no.3 Manzoor Ahmad Jan also executed a deed of mortgage as a collateral security and thereby mortgaged 4 kanals of land situated at Brane, Baba Gul Din Sahab in favour of the respondent/ plaintiff bank. The appellant /defendant no.5, namely, Din Mohammad Wani executed a guarantee deed whereby he undertook to indemnify the respondent bank against all losses and principle money, interest and all costs which plaintiff bank may incur by reason of any default on the part of defendants 2 to 4. The defendants on 1st April, 1989 approached the respondent/ plaintiff and executed a D.P. Note for an amount of Rs.315038.35 in favour of the respondent/plaintiff bank with the promise to pay the amount, outstanding against the appellants/defendants. The defendants/ appellants committed breach and accordingly, the respondent/ plaintiff presented the suit. Defendants filed written statement. The appellants/ defendants resisted the suit on the following grounds; That the suit is barred by time; no cause of action has accrued to the plaintiff; no notice has been received by the appellants/ defendants; the D.P Note dated 1st April, 1989 has not been executed by the defendants and defendants have not violated the rules and regulations. 5. Mr. Haqani, while addressing arguments argued that suit of the plaintiff is barred by time; and the issue, whether suit is barred by limitation has not been framed; that documents referred hereinabove have not been executed by the appellants and it was duty of the plaintiff/ respondent to prove that those documents were admissible in evidence. 5. Mr. Haqani, while addressing arguments argued that suit of the plaintiff is barred by time; and the issue, whether suit is barred by limitation has not been framed; that documents referred hereinabove have not been executed by the appellants and it was duty of the plaintiff/ respondent to prove that those documents were admissible in evidence. The onus of the issues framed has been wrongly fixed on the defendants, but the same was to be fixed on the plaintiff and Mr. Haqani argued that appeal be accepted and impugned judgment and decree be set-aside and case be remanded after framing the said issue. 6. Mr. Javed, submitted that the parties have led evidence. The appellants/ respondents were conscious about their case. It was their plea in the written statement that the suit is barred by limitation and it was their duty to lead evidence,even though issue was not framed. The parties were conscious about their pleadings and defendants have led evidence. There is no evidence in support of this plea. Mr. Javed has relied on a judgment of the Apex Court reported in AIR 1963 SC 884 (Nedunuri Kameshwaramma, appellant v.Sampati Subba Rao, respondent). The trial court has decided the question of admissibility of the documents in terms of page 5 of the judgment.The defendants have led no evidence in order to prove the said question. Heard. Considered. 7. The defendants/appellants have raised the issue that the defendants have not executed D.P. Note on 1st of April, 1989 and onus to prove this issue has been fixed on defendants and has been fixed rightly because it was plea of the appellants/ defendants that they have not executed D.P. Note. It is profitable to reproduce para-7 of the written statement herein; - "7. Para 71, is not admitted, but is denied in to. It is submitted that on 01.04.1989 no D.P.Notice has been executed. The bank on its own and fraudulently executed and signed the D.P. Notice so as to save the claim from being hit by the law of limitation. " 8. While going through this para, the question of limitation is dependent on the fact that D.P. Note has not been executed by the defendants and the bank has fraudulently executed and signed the D.P. Note. Thus the question of limitation is subject to the finding on issue no. 1. " 8. While going through this para, the question of limitation is dependent on the fact that D.P. Note has not been executed by the defendants and the bank has fraudulently executed and signed the D.P. Note. Thus the question of limitation is subject to the finding on issue no. 1. The plea has been raised by the defendants/ appellants that they have not executed D.P. Note, so it was for the appellants/ defendants to prove this issue and it is the only plea which appears to have been raised in the written statement. The appellants/ defendants have examined witnesses as referred hereinabove. None of the witnesses have deposed that they have not executed the D.P. Note and they have not signed the D.P. Note. There is not even a whisper about the same in the statements. It is profitable to mention herein that even the defendant Manzoor Ahmad Jan, appellant/ defendant no.3 has appeared in the witness box, but he too has said nothing about the execution and signing of the D.P. Note. While as the witnesses examined by the plaintiff/ respondent have deposed that defendants/appellants have executed the D.P. Note dated 1st April, 1989 for an amount of Rs.315038.35. Even the defendants have proved the D.P. Note and have also proved that defendants have executed the said document and the said document has been exhibited as EXPW2/1. In the given circumstances, it was the duty of the appellants/ defendants to discharge onus by proving that they have not executed the D.P. Note. Thus the finding returned by the trial court on this issue is well founded. 9. Now, coming to the question regarding framing of issue on limitation. In the given circumstances, there was no need to frame issue regarding limitation because the said issue was dependent on the fact, whether D.P Note stands executed or not? If the appellants/defendants had proved that D.P. Note was not executed then framing of the issue was material one. But defendants have failed to do so, as discussed above, and plaintiff/ respondent has proved the execution of the D.P. Note and thus the suit is within time. 10. Even otherwise failure to frame issue viz-a-viz limitation cannot be a ground for remanding the case for the reasons that the parties were alive to their proceedings. But defendants have failed to do so, as discussed above, and plaintiff/ respondent has proved the execution of the D.P. Note and thus the suit is within time. 10. Even otherwise failure to frame issue viz-a-viz limitation cannot be a ground for remanding the case for the reasons that the parties were alive to their proceedings. Defendants/ appellants have taken this ground in the written statement and they have also given the details, how the suit is barred by limitation, as discussed above. When the parties are alive and are conscious about the dispute and point of controversies, there is no need to frame issue and remand the case, more so when there is evidence on file by which the point of controversy can be set at rest. My this view is fortified by Apex Court judgment reported in AIR 1963 SC page 884 (Nedunuri Kamesh-waramma, appellant v.Sampati Subba Rao, respondent). It is profitable to reproduce para-6 and 9 of the said judgment herein, which reads as under; - "6. On the first point, we do not see how the suit could be ordered to be dismissed, for, on the facts of the case, a remit was clearly indicated. The appellant had already pleaded that this was jeroyti land, in which a patta in favour of her predecessors existed, and had based the suit on a kadapa, which showed a sub-tenancy. It was the respondent who had pleaded that this was a Dharmila inam and not jeroyti land, and that he was in possession of the kudiwaram rights through his predecessors for over a hundred years, and had become an occupancy tenant. Though the appellant had not mentioned a Karnikam service inam, parties well understood that the two cases opposed to each other were of Dharmila Sarvaumbala inam as against a Karnikam service inam. The evidence which has been led in the case clearly showed that the respondent attempted to prove that this was a Dharmila inam and to refute that this was a Karnikam service inam. The evidence which has been led in the case clearly showed that the respondent attempted to prove that this was a Dharmila inam and to refute that this was a Karnikam service inam. No doubt, no issue was framed, and the one, which was framed, could have been more elaborate; but since the parties went to trial fully knowing the rival case and led contentions but in refutation of those of the other side, it cannot be said that the absence of an issue was fatal to the case, or that there was that mis-trial which vitiates proceedings. We are, therefore, of opinion that the suit could not be dismissed on this narrow ground, and also that there is no need for a remit, as the evidence which has been led in the case is sufficient to reach the right conclusion. Neither party claimed before us that it had any further evidence to offer. We, therefore, proceed to consider the central point in the case, to which we have amply referred already. 9. A construction of documents (unless they are documents of title) produced by the parties to prove a question of fact does not involve an issue of law, unless it can be shown that the material evidence contained in them was misunderstood by the Court of fact. The documents in this case, which have been the subject of three separate considerations, were the Land registers, the Amarkam, andBhoobandAccounts and the Adangal Registers, together with certain documents derived from the Zamindari records. None of these documents can be correctly described as a document of title, whatever its evidentiary value otherwise. We do not, however, wish to rest our decision on this narrow ground even if right, because the legal inference from the proved facts may still raise a question of law. " As discussed above, the suit is within time. Thus there is no need to frame an issue regarding limitation and remand the case. Viewed thus it can be safely held that the suit is not barred by time. 11. Now coming to another argument advanced by Mr. Haqani, that documents relied upon by the plaintiff/ respondent are inadmissible in evidence. This argument is devoid of any force for the following reasons; - That this point has not been raised in the written statement. Viewed thus it can be safely held that the suit is not barred by time. 11. Now coming to another argument advanced by Mr. Haqani, that documents relied upon by the plaintiff/ respondent are inadmissible in evidence. This argument is devoid of any force for the following reasons; - That this point has not been raised in the written statement. This question cannot be adjudicated at this stage because it has been raised for the first time before the appellate court. Even otherwise the defendants/ appellants have not led any evidence in order to prove that documents are inadmissible in evidence. I have gone through the documents, it appears that all the documents are admissible in evidence. 12. In the memo of appeal, some other grounds have also been taken though not argued by Mr. Haqani. I deem it proper to return finding on the said grounds as well. The point that the suit has been presented by incompetent person has not been raised in the court below, thus cannot be raised at this stage. However, it seems that the suit has been presented by a competent person. The Court has exercised the jurisdiction vested in it and has not exceeded the jurisdiction. The trial court has rightly appreciated the evidence on record. The finding returned by the trial court on other issues i.e. issues 2 to 5 is well founded. While going through the judgment, one comes to an inescapable conclusion that the learned judge has not committed any illegality or error while discussing the evidence and while returning finding on the said issues. 13. Viewed thus, in the given circumstances, appeal merits to be dismissed. Accordingly, the appeal is dismissed. Impugned judgment and decree is upheld. Registry is directed to prepare a decree sheet accordingly. Send down the record.