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2007 DIGILAW 176 (ORI)

Pratap Narayan Singh Deo v. Ramakrishna Deo

2007-03-14

A.K.PARICHHA

body2007
JUDGMENT A. K. PARICHHA, J. : This is a defendant’s appeal against the judgment and decree passed by learned Sub-ordinate Judge, Jeypore in Money Suit No.19 of 1978. The present respondent as plaintiff filed that suit pleading inter alia that the defendant who is his elder brother, requested him for a loan and in re¬sponse to such request, he advanced a loan of Rs.25,000/- on 9.5.1975 as a gesture of goodwill and accepting the loan the defendant executed a promissory note agreeing therein to repay the same with interest at the rate of 12% per annum on demand within a period of 12 months. It was alleged that the defendant did not repay the loan or interest within the stipulated time inspite of repeated demands and so the plaintiff sent an advocate notice on 1.4.1976 demanding repayment. Though the notice was received by the respondent, no payment was made. So the plaintiff filed the suit for recovery of loan amount with interest thereon. The appellant-defendant in his written statement admitted to have borrowed Rs.25,000/- from the plaintiff on execution of a promis¬sory note. He, however, took a stand that no interest was contem¬plated on the loan and that the loan has been discharged. He also challenged the maintainability of the suit on the ground that the plaintiff is a money lender in regular course of business and his wife, who filed the suit as his power of attorney, has no locus standi to file the suit. It was specifically alleged that the plaintiff is not in proper mental condition and he never executed the power of attorney in favour of his wife. 2. The trial Court framed as many as six issues and ac¬cepted evidence of the parties. The plaintiff examined two wit¬nesses and produced documents such as, power of attorney, promis¬sory note and office copy of the advocate notice, which were marked as Exts.1 to 3 respectively. The defendant did not examine any witness but proved some signatures of the plaintiff on Ext.1 which were marked as Exts. The plaintiff examined two wit¬nesses and produced documents such as, power of attorney, promis¬sory note and office copy of the advocate notice, which were marked as Exts.1 to 3 respectively. The defendant did not examine any witness but proved some signatures of the plaintiff on Ext.1 which were marked as Exts. A to A/4, B & C. On consideration of all these evidence, the trial Judge came to the conclusion that the defendant borrowed a sum of Rs.25,000/- from the plaintiff and executed promissory note (Ext.2) agreeing to repay the loan with interest @ 12% per annum, but he did not repay the loan and interest and that the loan has not been discharged and the loan amount along with interest is recoverable from the defendant. Learned trial judge also held that the plaintiff is not money lending in regular course of business and the power of attorney executed in favour of his wife is genuine and the suit is main¬tainable by the power of attorney. Accordingly, he decreed the suit and directed the defendant to repay Rs.34,000/- to the plaintiff along with pendente lite and future interest @ 6% per annum on the principal amount of Rs.25,000/-. Not being satisfied with the said judgment and decree, the defendant-appellant has filed this appeal. 3. Mr. S. K. Mohapatra, learned counsel appearing for the appellant, submits that the appellant had borrowed the money from the respondent, as an accommodative loan from a brother and, therefore, award of interest by the trial Court is not proper. He submits that the power of attorney executed in favour of the wife of respondent-plaintiff was not proved to be genuine and that the plaintiff himself did not come forward to say that on his in¬struction the suit was filed by his wife and for that reason the suit was not maintainable. 4. No one appears on behalf of the respondent. 5. The appellant admitted that he took loan of Rs.25,000/- from the respondent on 09.05.1975 and executed a promissory note (Ext.2). Ext.2 contains an undertaking by the appellant that he would repay the loan with interest thereon @ 12% per annum on demand within a period of 12 months. In the written statement as well as in his evidence before the Court, the appellant, however, claimed that interest on the loan was never contemplated as it was a transaction between the two brothers. In the written statement as well as in his evidence before the Court, the appellant, however, claimed that interest on the loan was never contemplated as it was a transaction between the two brothers. When there is a stipulation in Ext.2 that the loan would carry interest @ 12% per annum and when the genuineness of the document is not in question, legal presumption would be that interest @ 12% was contemplated on the loan and the burden goes to the appellant-defendant to rebut such presumption by putting forth reliable evidence. Except the verbal denial, no evidence or circumstance was put forth by the defendant to show that interest was not contemplated on the loan. In such a situation, the inevi¬table conclusion would be that the loan carried an interest @ 12% per annum. The appellant took a plea that the loan has been discharged, but he has not produced any evidence to show how and when that loan was repaid or how it was discharged. On the other hand, the office copy of the advocate notice (Ext.3) was pressed into service by the respondent wherein the appellant was categor¬ically intimated that he had taken loan of Rs.25,000/- agreeing to repay the same with interest thereon @ 12% per annum, but has failed to pay the same despite repeated demands. No replay to this notice was also given by the appellant. In such avenue, the trial Court was justified in saying that the loan has not been discharged. 6. The defendant-appellant claimed that the suit is not maintainable as the plaintiff is a money lender in regular course of business. He, however, did not produce any evidence and cir¬cumstance to show that the plaintiff-respondent was lending money regularly to people and was collecting interest from those persons. On the other hand, the plaintiff specifically pleaded that he is not a money lender but he granted loan to the appel¬lant on the request of the appellant to help him out of financial crisis. It is specifically indicated in the promissory note (Ext.2) and in the advocate notice (Ext.3) that it was an accom¬modative loan from one brother to another brother. So there was no evidence to show that the plaintiff-respondent was a money lender or that he had given money to the appellant-defendant as a money lender. It is specifically indicated in the promissory note (Ext.2) and in the advocate notice (Ext.3) that it was an accom¬modative loan from one brother to another brother. So there was no evidence to show that the plaintiff-respondent was a money lender or that he had given money to the appellant-defendant as a money lender. Thus, rightly the learned Sub-ordinate Judge held that this fact was not substantiated by the defendant. 7. Regarding the maintainability of the suit by the wife of the plaintiff on power of attorney (Ext.1) was produced wherein the plaintiff has authorized his wife to file suits and litigations on his behalf. The defendant-appellant challenged the genuineness of this document with a plea that the plaintiff-respondent was not in proper state of mind and was not capable of executing the power of attorney. He, however, failed to produce any document or evidence to substantiate this allegation. P.W.1 on the contrary stated before the Court that in his presence, Ext.1 was drafted, prepared and signed by the parties and wit¬nesses in the office of Chartered Accountant-cum-advocate Mr. A. Basudevan at Madras. He prove the signature of the plaintiff and his own signature on this document and also stated that he was present in the Sub-Registry Office when the document was regis¬tered and the plaintiff admitted execution of the documents in that Sub-Registry office. Ext.1 is a registered document, which carries a presumption of genuineness. In addition P.W.1 who is an attesting witness to the document proved preparation, signing and registration of this document. The evidence of P.W.1 has not been discredited in any manner and no rebuttal evidence was also produced form the side of the defendant to show that the document Ext.1 is not a genuine one. Some of the signatures of the plain¬tiff were claimed to be fake and forged but those signatures were proved to be genuine by P.W.1 and the trial Court also on com¬parison came to the conclusion that they are genuine signatures of the plaintiff. Such being the evidence on record, there was no escape from the conclusion that Ext.1 is a genuine document and that the wife of the plaintiff-respondent had the authority to bring the suit on behalf of the plaintiff. 8. Such being the evidence on record, there was no escape from the conclusion that Ext.1 is a genuine document and that the wife of the plaintiff-respondent had the authority to bring the suit on behalf of the plaintiff. 8. The aforesaid discussions show that the judgment and decree of the trial Court is in tune with the evidence on record and is no way contrary to settled principle of law. The impugned judgment and decree is accordingly confirmed and the appeal is dismissed on contest with costs. Appeal dismissed.