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2006 DIGILAW 23 (JHR)

Bishwakarma Furniture Workshop v. Santanu Sarkar

2006-01-10

N.N.TIWARI

body2006
ORDER N.N. Tiwari, J. 1. This appeal has been preferred against the judgment and decree passed in Money Appeal No. 2/01/1/04 by the learned 2nd Additional District Judge (F.T.C.), Jamtara. The defendants-respondents are the appellants. The plaintiffs had filed money suit for a decree for realization of a sum of Rs. 10,500 from the defendants with interest @ 12% per annum against the defendants / appellants. 2. The case of the plaintiffs was that the defendants-appellants were known to them and they were running a business. The defendants requested the plaintiffs to stand as a guarantor required for sanction, of a loan of Rs. 8.000/- to the defendants by a Bank. The plaintiff on the request of the defendants stood guarantor and the loan was sanctioned. The defendant No, 2 was required to pay back the amount of loan with interest as per the agreement. The plaintiff was under impression that the defendant No. 2 was making regular payment. Suddenly in the year 1985 the Bank informed the plaintiff that the defendant No. 2 was not making payment of the loan amount regularly and that if the loan amount is not paid according to the terms of the agreement regularly, the same will be realized from the plaintiff. The plaintiff requested the Bank to take action against the defendants but a sum of Rs. 10,099.50 was deducted from the plaintiffs fixed deposit. Hence, the suit for recovery of the said principal amount with interest from the defendant. 3. The defendant contested the suit disputing the cause of action and taking other grounds denying the plaintiffs claim. The defendant set up a case that the plaintiff had approached the defendant asking him to supply a variety of furniture for furnishing his residential quarter with a promise to deposit the price of furniture occasionally in the Bank towards repayment of the loan amount. But the plaintiff did not do so and instead, he removed two double bed and one show case of watch from the workshop of the defendants. The defendants thus denied the statements made in the plaint. 4. The trial Court dismissed the suit holding that the plaintiff failed to establish his case. The plaintiff then preferred a regular appeal which was registered as Money Appeal No. 2/01/1/04 in the Court of District Judge, Jamtara. The defendants thus denied the statements made in the plaint. 4. The trial Court dismissed the suit holding that the plaintiff failed to establish his case. The plaintiff then preferred a regular appeal which was registered as Money Appeal No. 2/01/1/04 in the Court of District Judge, Jamtara. The said appeal was finally heard and disposed of by learned 2nd Additional District Judge, Jamtara. Learned lower Appellate Court in view of the ground taken in the appeal, discussed all the facts, evidence and relevant materials on record and framed certain points for consideration. On proper scrutiny and discussion of the evidence and materials on record he found that the defendants could not prove the positive case set up by them in the pleading regarding supply of furniture as also the alleged agreement to make deposits towards repayment of the defendants loan in the Bank. The fact of taking loan from the Bank and the plaintiff being the guarantor being admitted the lower appellate Court held that the defendant failed to discharge his onus and failed to prove the case pleaded by him. Learned lower Appellate Court thus found the findings of the trial Court as erroneous and set aside the judgment and decree of the trial Court, and allowed the appeal decreeing the plaintiffs suit. 5. Learned counsel for the appellants submitted that the lower Appellate Court has erroneously come to his finding of fact on the ground that the defendants failed to prove the case set up by them whereas the plaintiff who had filed the case, had onus to prove the case set up by him. Learned counsel submitted -that the evidences on record have not been properly appreciated by the learned lower Appellate Court and his findings are erroneous and contrary to law and facts of the case. 6. After hearing the learned counsel and on perusal of the impugned judgment and decree, I find that the defendant No, 2 had admitted that he had taken loan from the Bank and for which the plaintiff stood guarantor for him. It is also an admitted fact that the said loan was realized from the T.D.R. account of the plaintiff. 6. After hearing the learned counsel and on perusal of the impugned judgment and decree, I find that the defendant No, 2 had admitted that he had taken loan from the Bank and for which the plaintiff stood guarantor for him. It is also an admitted fact that the said loan was realized from the T.D.R. account of the plaintiff. The only plea of the defendant No. 2 that the plaintiff had promised to pay the loan amount on his behalf and the loan amount was rightly realized from the plaintiff as per agreement could not be proved by him by any evidence, as has been held by the learned lower Appellate Court. The said finding of learned lower Appellate Court being based on appraisal of facts and evidence cannot be interfered with by this Court in second appeal. This Court cannot substitute any finding of facts in exercise of second appellate jurisdiction. I, therefore, find no infirmity and error in the impugned judgment and decree of the lower Appellate Court giving rise to any substantial question of law. 7. This appeal is, accordingly, dismissed. I.A. No. 2483/2005 In view of the order dated 10.1.2006 passed in S.A. No. 449/2004 this interlocutory application has become infructuous and as such this application is, accordingly, dismissed.