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2006 DIGILAW 1732 (PNJ)

Bishamber Dayal v. Firm Sukh Lal Shiv Narain

2006-04-26

S.D.ANAND

body2006
Judgment 1. The present R. S. A has been preferred by Bishamber Dayal and kundan Lal, appellants to assail the validity of the judgment and decree dated 3.2.1983 by which the then learned Additional District Judge, narnaul, reversed the judgment and decree passed by the Court of learned sub Judge IInd Class, Rewari, and ordered the decretal of the suit in favour of the plaintiff- respondent for recovery of Rs.4,000/- with costs. 2. The plaintiff- respondent filed a suit for the decreed relief on the following allegations: It is a registered partnership firm, which is into the business of purchase and sale of utensils. Defendants- appellants were also into that business. On 26.11.1973, defendants- appellants borrowed a sum of Rs.4,000/- from the plaintiff-respondent for the purposes of business. In order to document the transaction, defendant- appellant no.1, bishamber Dayal executed a memorandum in favour of the plaintiffrespondent firm. That memorandum also contained a promise for repayment with interest at the rate of Re.1 per cent per month. The plaintiff-respondent was impelled to file the suit when defendants- appellants did not pay the amount despite various verbal requests and a registered notice dated 30.8.1976. 3. Appellants plea was that the impugned document was not a memorandum but a pronote which was inadmissible in evidence as it had not been duly and properly executed. Defendant- appellant No.1-Bishamber Dayal conceded having executed that document. The plea raised in this context was that it was not a cash transaction but that the memorandum was brought into being to document a satta transaction. 4. Defendant- Appellant No.2 pleaded that firm M/s Bishamber Dayal sunil kumar had come to be dissolved and the liabilities of the firm have been undertaken by defendant- appellant No.1. Certain other preliminary objections were also raised but those are not relevant to be indicated as the controversy before this Court is only in respect of the findings recorded by the learned First Appellate Court on Issues No.5and 9 (Even before the First appellate Court, the contest was confined to the findings recorded by the learned trial Court on Issues No.5and 9 ). 5. In this R. S. A. , the following substantial question of law had been framed:- "what is the import of document Mark-A?" besides it, the following are otherwise the issues which had been framed by the learned Trial Court: "1. Whether the rukka is without consideration?o. P. P.2. 5. In this R. S. A. , the following substantial question of law had been framed:- "what is the import of document Mark-A?" besides it, the following are otherwise the issues which had been framed by the learned Trial Court: "1. Whether the rukka is without consideration?o. P. P.2. Whether the suit is collusive?o. P. D.3. Whether the defendant No.2 is not bound to pay the amount as alleged by the plaintiff?o. P. D.4. Whether the plaintiff is a money lender, if so its effect?o. P. D.5. Whether the plaintiff is not entitled to any interest and costs?o. P. D.1 6. Whether the suit is bad for non-joinder of necessary parties?o. P. D.7. Whether the suit is not maintainable in the present form?o. P. D.8. Whether the money in question is a satta money? If so its effect?o. P. D.1 9. Whether the rukka in question is not admissible in evidence?o. P. D.1 10. Whether the plaintiff is not partner of the firm as alleged by defendant No.1?o. P. D.1 11. Relief. " (Even at the cost of repetition, it may be indicated here that the controversy in this R. S. A is only in respect of the findings recorded by the learned First Appellate Court under Issues no.5 and 9) 6 The learned counsel for the parties were one on the point that the fate of this R. S. A would turn upon adjudication of the fact about whether the Mark-A is a pronote or a memorandum. 7. I have heard Ms. Alka Sarin, learned counsel for the appellants and Ms. Divya Sharma, learned counsel for the respondent and have carefully perused the record. 8. It may be indicated, at this stage, that the learned trial Court, had recorded a finding (vide order dated 3.2.1979) that the Mark-A is a promissory note which is inadmissible in evidence as stamps appearing thereon had not been properly cancelled. On that finding, the suit was ordered to be dismissed. As against it, the learned First Appellate court recorded a finding that the document Mark-A is not a pronote and is only a memorandum. While relying upon the fact that a memorandum of this category is admissible in evidence and also because the plaintiffrespondent had produced on file Ex. On that finding, the suit was ordered to be dismissed. As against it, the learned First Appellate court recorded a finding that the document Mark-A is not a pronote and is only a memorandum. While relying upon the fact that a memorandum of this category is admissible in evidence and also because the plaintiffrespondent had produced on file Ex. PW1/5 which records that a sum of rs.4,000/- had been given to defendants- appellants on 26.11.1973 at an interest at the rate of Re.1 per cent per month, it was held that the suit deserved decretal, particularly when the execution of Mark-A had been conceded and it had not been proved that the impugned transaction was in respect of a satta transaction. 9. Ms. Alka Sarin, learned counsel for the defendants- appellants, argued that the finding recorded by the learned First Appellate Court deserves to be reversed, for the simple reason that the learned Trial court had recorded adequate reasons in the course of its order dated 27.3.1979 in support of a finding that Mark-A is a pronote which is inadmissible for want of proper cancellation of the stamps appearing thereon. It was argued that the learned First Appellate Court had not recorded any reasons adequate enough to upset the finding recorded by the learned trial Court in the context. On the other hand, the learned counsel for the plaintiffrespondent placed implicit reliance upon the line of reasoning adopted by the learned First Appellate Court. 10. On appraisal of the matter, I find the plea on behalf of the defendants- appellants to be devoid of force. As per the material obtaining on the file, defendant- appellant No.1, Bishamber Dayal had conceded that mark-A appears in his hand and it also bears his signatures. Defendantsappellants failed to prove that Mark-A had been brought into being to document a satta transaction and that it (Mark-A) was without consideration. Ex. PW1/5 is a copy of roznamcha (maintained by the plaintiff-respondent in ordinary course of business) which contains a recital that a sum of Rs.4,000/- was given to firm M/s Bishamber Dayal Sunil kumar on 26.11.1973 at interest at the rate of Re.1 per cent per month. As against it, the defendants- appellants did not produce their bahikhata which could have unequivocally indicated the nature of the transaction. As against it, the defendants- appellants did not produce their bahikhata which could have unequivocally indicated the nature of the transaction. It would be pertinent to point out here that the plea raised by the defendantsappellants about the Mark-A having documented a satta transaction was negatived by the learned Trial Court for valid reasons. It may be indicated in the context that it was conceded by defendant- appellant No.1, bishamber dayal himself that the amount stands entered in the account books as rokri. On his own showing, those account books are retained in ordinary course of business. He denied, as incorrect, a suggestion that the account books do contain a recital that interest at the rate of Re.1 per cent per month was payable on the amount aforesaid. In that view of things, it was incumbent upon defendants- appellants to produce their account books in order to prove the correctness of the denial aforesaid and to falsify the suggestion put to DW4- Bishamber Dayal in the context. The present is, thus, a case in which the account books proved to have been maintained by the plaintiffrespondent in ordinary course of business indicate the impugned transaction to be a loan transaction; whereas defendants- appellants have withheld their account books in spite of the fact that a suggestion was put to DW4 bishamber Dayal- appellant that the account books maintained by the appellants do contain a recital that interest at the rate of Re.1 per cent per month was payable. 11. The finding recorded by the learned First Appellate Court about the nature of Mark-A deserves concurrence for the very reasons recorded by it and it is so held accordingly. A conjunctive perusal of that reasoning and the observations recorded in the foregoing para would clinch the issue in favour of the plaintiff- respondent. In the light of the aforesaid discussion, I have no reservations in upholding the findings recorded by the learned First Appellate court on issues No.5 and 9. 12. The present R. S. A being totally devoid of merit shall stand dismissed with costs of the cause through out.