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2007 DIGILAW 1826 (PNJ)

Balvinder Singh v. Basaikhi Ram Saina Ram

2007-10-10

T.P.S.MANN

body2007
JUDGMENT T.P.S. Mann, J. - Defendant-Balvinder Singh has filed the present appeal for challenging the judgment and decree dated 20.11.1984 passed by Additional District Judge, Sirsa, whereby the appeal of plaintiff-M/s. Basaikhi Ram Saina Ram was accepted and a decree for the recovery of Rs. 14,000/- with costs and future interest at the rate of 12% per annum from the date of filing of the suit till the recovery of the entire decretal amount was passed in favour of the plaintiff and against the defendant. 2. The suit was filed by the plaintiff-firm through its partner Brij Lal claiming therein that the defendant borrowed a sum of Rs. 9,000/- on 28.5.1977 from it on interest at the rate of Rs. 1.56 per hundred per mensum and in consideration thereof, executed a pronote and a receipt in favour of the firm. Although, an amount of Rs. 5,054/- was due towards interest yet plaintiff-firm claimed interest only to the extent of Rs. 5,000/-. As the defendant failed to pay the borrowed amount along with the interest, the plaintiff-firm had no other option but to file the suit. 3. While opposing the suit, the defendant pleaded that the pronote and receipt in question were forged and fabricated documents and therefore, no liability could be enforced against him on the basis of the same. According to him, he sold his tractor on 5.6.1979 for a sum of Rs. 9,400/-. On learning this, aforementioned Brij Lal, partner of the plaintiff-firm, approached the defendant to clear all the outstanding dues. The account was settled and the defendant paid a sum of Rs. 7,000/- to Brij Lal. However, Brij Lal did not issue him the receipt, but promised to return the pronote to the defendant which he had executed in favour of the plaintiff-firm for an amount of Rs. 1,000/-. Said Brij Lal also did not return the pronote and the receipt. In fact, he had never borrowed the alleged amount of Rs. 9,000/-. The plaintiff- firm had forged the pronote, which the defendant had executed in its favour only in consideration of Rs. 1,000/-. Even after receiving the entire amount, the plaintiff-firm, after basing its claim on forged documents, filed the suit. It was also pleaded that the plaintiff-firm was not a registered partnership firm. It was indulging in the business of money lending without obtaining requisite licence. Therefore, the suit deserved to be dismissed. 4. 1,000/-. Even after receiving the entire amount, the plaintiff-firm, after basing its claim on forged documents, filed the suit. It was also pleaded that the plaintiff-firm was not a registered partnership firm. It was indulging in the business of money lending without obtaining requisite licence. Therefore, the suit deserved to be dismissed. 4. On the pleadings of the parties, the following issues were framed by the learned trial Court :- 1. Whether the plaintiffs firm is registered firm and Brij Lal is its registered partner ? OPP 2. Whether the defendant borrowed Rs. 9,000/- from the plaintiff as alleged in the plaint ? OPP 3. Whether in token of the loan the defendant had executed any pronote or receipt ? OPP 4. Whether the defendant agreed to pay any interest, if so, to what rate and how much ? OPP 5. Whether the plaintiff is a money lender ? OPD 6. Whether the defendant is entitled to special costs ? OPD 7. Relief. The trial Court came to a conclusion that the pronote and receipt were not duly proved by the plaintiff as it failed to establish that it advanced a sum of Rs. 9,000/- to the defendant on interest. It was also held that the plaintiff firm was a money lender within the meaning of Section 2(9) of the Punjab Registration of Money Lenders Act, 1938 (for short the Act) and as it had not taken the requisite licence, the suit was liable to be dismissed. On the basis of the aforementioned findings, the suit was dismissed by learned Sub Judge Ist Class, Dabwali on February 28, 1984. 5. Aggrieved of the same, the plaintiff firm filed an appeal which was accepted by learned Additional District Judge, Sirsa on November 20, 1984 by concluding that from the testimonies of Ramesh Kumar PW-2 and Baldev Singh PW-3, who were scribe and attesting witness, respectively, of the pronote and receipt, the plaintiff firm had been able to establish that the pronote and receipt were executed by the defendant after receiving a sum of Rs. 9,000/- in cash from the plaintiff-firm. Further the defendant-respondent had admitted the execution of the pronote in question, but claimed that it was for Rs. 1,000/- and not Rs. 9,000/- but at the same time he failed to prove the said forgery. 9,000/- in cash from the plaintiff-firm. Further the defendant-respondent had admitted the execution of the pronote in question, but claimed that it was for Rs. 1,000/- and not Rs. 9,000/- but at the same time he failed to prove the said forgery. In fact, it was for the defendant to examine the expert witness to establish his plea of forgery and the plaintiff was not required to examine any such expert witness and therefore, no adverse inference could be drawn against the plaintiff-firm for non-production of the Handwriting Expert. As regards the plea of the defendant that the plaintiff-firm was engaged in the business of money lending without obtaining the requisites license, the lower appellate Court held that the defendant was required to prove that the plaintiff was engaged in regular business of money lending and the casual instances of money lending would not make him a money-lender within the meaning of aforementioned Act. Also that there was no evidence on the record as to during which period the plaintiff-firm had advanced loans to different persons. Accordingly, while accepting the appeal, learned lower Appellate Court, set aside the judgment and decree passed by the learned trial Court and passed a decree for the recovery of Rs. 14,000/- with costs and future interest at the rate of Rs. 12% per annum from the date of the filing of suit till the recovery of the entire decretal amount. Hence, the present appeal. 6. The defendant, on the one hand, claimed that the pronote and the receipt in question were forged and fabricated documents, while on the other he asserted that the pronote was in fact for Rs. 1,000/- and not for Rs. 9,000/- as claimed by the plaintiff-firm. When both the pleas are considered simultaneously, it can safely be concluded that the defendant has practically accepted the claim of the plaintiff-firm. There is no challenge by the defendant to his signatures on the pronote and the receipt. Under these circumstances, the learned lower Appellate Court was justified in concluding that the pronote and the receipt had been executed and signed by the defendant. Merely because it was stated by Baldev Singh PW-3 that the pronote was signed by the defendant, whereas the pronote Ex. Under these circumstances, the learned lower Appellate Court was justified in concluding that the pronote and the receipt had been executed and signed by the defendant. Merely because it was stated by Baldev Singh PW-3 that the pronote was signed by the defendant, whereas the pronote Ex. P-1 does not have signatures but thumb-impression of the defendant, is no ground to conclude that the pronote was a forged and fabricated document, especially in view of the cross-examination of aforementioned Baldev Singh PW-3 wherein he stated that the defendant had used a pad for appending his thumb-impression. Once it is got explained by the defendant himself that he had appended the thumb- impression and not put signatures on the pronote Ex. P-1, he cannot now turn around to say that the same was nothing but a forged and fabricated document. 7. Learned counsel for the appellant further submitted that defendant is a matriculate and he used to put his signatures wherever required and never appended his thumb-impressons. Therefore, the pronote Ex. P-1 and receipt Ex. P-2 bearing his thumb-impressions were forged and fabricated documents. 8. If the position was such as taken by the defendant, he could have easily proved the forgery by examining an expert, who could have given an opinion, if the defendant was right, that the thumb-impressions borne on pronote Ex. P-1 and receipt Ex. P-2 were not that of the defendant but of someone else. In fact, the defendant felt shy in pursuing his aforementioned plea, fully realising that his claim would be falsified by such an expert. It may also be relevant to mention here that an application was filed by the plaintiff on 22.3.1982 requiring the defendant to give his thumb-impressons as he had denied appending his thumb-impressions on the pronote and the receipt. The learned trial Court obtained the sample thumb-impressions of the defendant on 22.3.1982 as well as on 4.10.1982. The disputed thumb-impressions were later on examined and compared with the specimen thumb-impressions of the defendant by one Satwant Puri, Consulting Document Expert, who vide his report dated March 27, 1983 opined that the disputed thumb-impressions on the pronote and the receipt were identical with the specimen thumb-impressions taken in the Court and therefore, they were of one and the same person. This report was received by the learned trial Court on 30.3.1983 and made a part of the record. This report was received by the learned trial Court on 30.3.1983 and made a part of the record. It is immaterial that the report was not formally proved by the plaintiff by leading necessary evidence or later on by filing an application for allowing the additional evidence, but it is quite apparent that the specimen thumb-impressions of the defendant were taken by the learned trial Court and that too in the presence of his counsel. 9. As regards the plea of forgery of the pronote and the receipt, the case of the defendant is that the figure 1,000 contained in pronote Ex. P-1, especially figure 1 in it, was forged later on by the plaintiff-firm, so as to make it 9,000/-. According to him, the pronote and the receipt in question were executed in consideration of the defendant borrowing and receiving a sum of Rs. 1,000/- only and not Rs. 9,000/-. 10. A perusal of the pronote Ex. P-1 and receipt Ex. P-2 would show that the figure of 9000 is mentioned at two different places on first document and at one place on the second. The said figure of 9000 is also described in words. Further that in the pronote, it was specifically stated that the same was executed for Rs. 9,000/-, half of which was Rs. 4,500/-. The defendant has nowhere alleged that there is any forgery in the description of Rs. 4,500/- in figures and words. Considering the case in reverse order, when it is clearly stated in the pronote that half of the amount borrowed was Rs. 4,500/-, the same was clearly executed in consideration of receiving an amount of Rs. 9,000/-. By no stretch of imagination, can it be said that the pronote was executed in consideration of Rs. 1,000/- only and not Rs. 9,000/-. 11. Learned counsel for the appellant referred to pronote Ex. P-1 to point out that figure 9, in the amount figure of Rs. 9,000/- is a case of forgery as figure 9 is in a different ink, i.e. an ink of lighter shade as compared to the ink used for filling up the remaining particulars of pronote Ex. P-1 and receipt Ex. P-2. Though, it can be said that figure 9 is written in a lighter ink, yet difference is only marginal and not substantial from which one could say that there is a forgery in describing the figure 9,000/-. P-1 and receipt Ex. P-2. Though, it can be said that figure 9 is written in a lighter ink, yet difference is only marginal and not substantial from which one could say that there is a forgery in describing the figure 9,000/-. 12. The defendant did take up the plea of forgery of the pronote and the receipt but failed to examine any Handwriting Expert. On account of non- examination of such an expert, an adverse inference can be safely drawn against the defendant that in case such an expert had been examined, he would have deposed against him. As such, it is held that the pronote Ex. P-1 and receipt Ex. P-2 were not forged and fabricated documents but were executed by the defendant in consideration of receiving a sum of Rs. 9,000/- from the plaintiff-firm. 14. Learned counsel for the appellant submitted that the plaintiff-firm was engaged in the business of money lending and was required to obtain a licence. As no such licence had been obtained by the plaintiff-firm it cannot recover the amount from the defendant. Reliance in this regard was placed upon Daljit Kumar and another v. Popal Dass, AIR 1981 P&H 211 and Magni Singh and Mahinder Singh, 1977 PLJ 411. 15. The defendant has failed to lead any satisfactory evidence on the file from which it could be inferred that the plaintiff was engaged in the business of money lending. Bald statements of some witnesses would not take the place of proof. Further that though according to the testimony of Ramesh Kumar PW-2, who is son of Brij Lal, partner of the plaintiff-firm, the firm had been lending money to the Commission Agents and earning interest from the same but that is not sufficient to conclude that any such business of money lending was being undertaken by the plaintiff-firm. Said Ramesh Kumar also stated that about 100/150 Commission Agents used to come to them. He did not mention that these Commission Agents had been coming for borrowing money. The plaintiff- firm is running a business and therefore, in normal course, a number of Commission Agents would be coming to its shop. No specific instances or entries of money lending have been proved by the defendant. Further it is never claimed by the plaintiff-firm that it was engaged in such a business of money lending. The plaintiff- firm is running a business and therefore, in normal course, a number of Commission Agents would be coming to its shop. No specific instances or entries of money lending have been proved by the defendant. Further it is never claimed by the plaintiff-firm that it was engaged in such a business of money lending. Therefore, the aforementioned judgments are not applicable to the facts and circumstances of the case. In view of the above, the lower Appellate Court did not err in holding that the plaintiff-firm was not required to possess licence of money lending as there were only casual instances of money lending, which would not make plaintiff-firm, a money-lender within the meaning of the Act. 16. It was also submitted on behalf of the appellant that regarding the pre- suit amount, learned lower Appellate Court has awarded interest at the rate of 18.72%, whereas it could not have been more than 12%. Further that the Court could deny the claim regarding interest as agreed to in the contract if the same was found to be opposed to public policy. Attention of the Court has been drawn to Central Bank of India v. Ravindra and others, 2001(2) PLJ 557. 17. As per the terms and conditions of the pronote, the principal sum advanced was payable by the defendant along with interest at the rate of Rs. 1.56 per hundred per mensum, which comes to 18.72% per year. Keeping in view the financial condition of the defendant and also the fact that the creditor i.e., the plaintiff tried to gain an unfair advantage over the debtor i.e the defendant by advancing money against the interest of Rs. 1.56 per hundred per mensum, it can safely be concluded that such a pre-suit interest cannot be allowed. The plaintiff waited almost till the end of the period of limitation, while filing the suit for recovery. Under these circumstances, the Court is not powerless to deny the plaintiffs claim for interest. At the same time, it would be reasonable to grant interest at the rate of 12% per annum to the plaintiff. 18. As regards the post-suit interest, it is clear that the liability incurred by the defendant did not arise from a commercial transaction. Under these circumstances, the plaintiff is entitled to claim such an interest at the rate of 6% and not 12%. 18. As regards the post-suit interest, it is clear that the liability incurred by the defendant did not arise from a commercial transaction. Under these circumstances, the plaintiff is entitled to claim such an interest at the rate of 6% and not 12%. While taking such a view, I place reliance on the following observations of the Honble Supreme Court in Rajni Kumar v. Suresh Kumar Malhotra and another, reported in 2003(1) PLJ 381 :- "In this view of the matter, we do not find any illegality much less jurisdictional error in the order under challenge to warrant interference of this Court. Inasmuch as having regard to the provisions of Section 34 of the CPC and the facts of the case that the liability does not arise out of a commercial transaction, we are of the view that the grievance of the appellant with regard to rate of interest is justified. We, therefore, reduce the rate of interest from 18 per cent to 6 per cent per annum." In view of the aforementioned conclusions, the impugned judgment and decree passed by lower Appellate Court is modified by granting the interest on the principal sum advanced at the rate of 12%. Therefore, on the amount of Rs. 9,000/- the defendant shall pay interest at the rate of 12% from 28.5.1977 uptil 23.5.1980, when the suit was filed. The suit of the plaintiff, thus, stands decreed for recovery of Rs. 9,000/- along with interest at the rate of 12% from 28.5.1977 uptil 23.5.1980. The future interest awarded at the rate of 12% per annum from the date of filing of the suit till the recovery of decretal amount is also reduced to 6%. It may not be out of place to mention here that when the appeal was admitted on 13.5.1985, the execution of the impugned decree was stayed subject to the appellant depositing Rs. 5,000/- in the trial Court within a month and furnishing security for payment of the balance amount. Learned counsel for the appellant submits that, as directed, the appellant deposited a sum of Rs. 5,000/- within the prescribed time. If that be so, the said amount shall be adjusted towards the decretal amount. But for the modification in the impugned judgment and decree as indicated above, the appeal is dismissed. Appeal dismissed.