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2007 DIGILAW 445 (GAU)

Hem Chandra Chaudhury v. Hahi Ram Bora

2007-06-27

I.A.ANSARI

body2007
JUDGMENT I.A. Ansari, J. 1. This second appeal has arisen out of the judgment and decree, dated 17.04.2001, passed, in Money Appeal No. 6/1998, by the learned Civil Judge, (Senior Division) No. 2, Kamrup, Guwahati, dismissing the appeal and upholding the judgment and decree, dated 25.9.1998, passed, in Money Suit No. 48/1994, whereby the suit of the Respondent herein was decreed. 2. I have heard Mr. B. Kalita, learned Senior Counsel, appearing on behalf of the Defendant-Appellant, and Mr. G.P. Bhowmik, learned Counsel for the Plaintiff-Respondent. 3. The case of the Plaintiff is, in brief, thus: The Plaintiff and the Defendant are both workers in the office of M/s. Assam Agro Industries Development Corporation Ltd. and both were on friendly terms. As the Defendant was badly in need of money, he requested the Plaintiff to lend him some money. The Plaintiff agreed to lend money to the Defendant and, on 24.5.1991, the Plaintiff lent to the Defendant a sum of Rs. 12,000/- on condition that the Defendant shall repay on demand to be raised by the Plaintiff the loan with interest. The Defendant also executed, on the same day, i.e. 24.5.1991, a pronote in favour of the Plaintiff promising to repay on demand the said sum of Rs. 12,000/-, with interest. The Defendant did not, however, repay the loan and started avoiding the Plaintiff. As repeated demands for repayment of loan raised by the Plaintiff did not yield any favourable result, the Plaintiff issued a notice, through his counsel, to the Defendant demanding repayment of the loan amount with interest. As the Defendant did not make payment, the Plaintiff instituted a suit for realization of the entire amount of loan with interest. 4. The Defendant resisted the suit by contending, inter alia, that the Plaintiff was a money lender by profession, the case of the Defendant being, briefly stated, thus: Both the Plaintiff as well as the Defendant are employees of M/s. Assam Agro Industries Development Corporation Ltd. and, being co-workers, both of them had friendly relation, good understanding and mutual trust in each other. The loan taken by the Defendant was repaid to the Plaintiff, but the Plaintiff did not return the pronote and the Plaintiff has, now, instituted the suit by making false allegation that the Defendant has not made payment of the loan with interest. The Defendant accordingly sought for dismissal of the suit. 5. The loan taken by the Defendant was repaid to the Plaintiff, but the Plaintiff did not return the pronote and the Plaintiff has, now, instituted the suit by making false allegation that the Defendant has not made payment of the loan with interest. The Defendant accordingly sought for dismissal of the suit. 5. The learned trial Court framed the following issues for determination in the suit: 1. Whether the Defendant is liable to pay the suit money to the Plaintiff? 2. Whether the suit is barred by limitation? 3. Whether the Plaintiff is entitled to the relief prayed for and/or any other relief? 6. Both sides adduced evidence by examining two witnesses each. The learned trial Court decided the issues in favour of the Plaintiff and the suit was accordingly decreed. Aggrieved by the decree, the Defendant preferred an appeal. As the appeal has also failed, the Plaintiff is, now, before this Court with the second appeal. 7. As the record reveals, the appeal was admitted on the following substantial questions of law for determination: (i) Whether the Courts below should have framed and decided the issue raised by the Appellant in his written statement that the suit was barred under Section 7-D of the Assam Money Lenders Act, 1934? (ii) Whether the Courts below committed error of law by discarding the evidence of DW-1 and DW-2 that the suit loan had been repaid by the Appellant? 8. Appearing on behalf of the Defendant-Appellant, it has been submitted by Mr. B. Kalita, learned Senior Counsel, that the Defendant had agitated, in the written statement, that the Plaintiff was a money lender by profession, but no issue was framed on the assertions, so made, in the written statement by the Defendant. The omission to frame an issue, as to whether the Plaintiff is a money lender by profession, has caused, according to Mr. Kalita, serious prejudice to the case of the Defendant and in the facts and circumstances of the case, the suit needs to be remanded to the learned trial Court for framing the requisite issue and, then, to dispose of the suit in accordance with law. 9. Resisting the appeal, Mr. Kalita, serious prejudice to the case of the Defendant and in the facts and circumstances of the case, the suit needs to be remanded to the learned trial Court for framing the requisite issue and, then, to dispose of the suit in accordance with law. 9. Resisting the appeal, Mr. G.P. Bhowmik, learned Counsel for the Plaintiff, has submitted that the suit was, in fact, decreed ex parte and, then, the ex parte decree having been set aside, learned Counsel for both the parties to the suit were heard and it was after the hearing that issues were framed. At no stage, points out Mr. Bhowmik, grievance was expressed by the Defendant until the second appeal that there ought to have been framed an issue by the learned trial Court to the effect that the Plaintiff was a money lender by profession. This apart, contends Mr. Bhowmik, no prejudice has been caused to the Defendant for the omission to frame the issue, which is, now, raised by the Defendant. 10. While considering the present appeal, what needs to be noted is that the Defendant merely contended, at paragraph 4 of his written statement that the Plaintiff was a money lender by profession and he used to lend money at high rate of interest and harass the borrowers. It was, however, not the case of the Defendant that the suit was not maintainable on the account of the fact that the Plaintiff was a money lender and/or the Plaintiff had not registered himself as a money lender and/or that the Plaintiff had given the loan to the Defendant as a money lender; rather, the clear statement, made by the Defendant in his written statement, was that both the Plaintiff and the Defendant were co-workers in the same establishment, they knew each other, they were on friendly terms with each other, they had good understanding and trusted each other. In these circumstances, particularly, when there was not even slightest of assertion made in the written statement by the Defendant that the money was lent to him by the Plaintiff in the course of the Plaintiff's business as a money lender, the mere fact that the Defendant had alleged that the Plaintiff was a money lender was of no relevance at all. Had it been the case of the Defendant that the money was lent to him by the Plaintiff in the course of the Plaintiff's business as a money lender, the situation would have, perhaps been a little different. 11. What emerges from the above discussion is that the Defendant's written statement did not establish any cogent relationship between his allegation that the Plaintiff was a money lender and the factum of receiving the loan from the Plaintiff. Situated thus, the omission to frame any issue on the question as to whether the Plaintiff is a money lender by profession or not cannot be said to have caused any prejudice to the Defendant, particularly, when it was not the case of the Defendant that the Plaintiff had lent him the loan as a money lender or in the course of the Plaintiffs business as a money lender. No wonder, therefore, that neither at the time, when the issues were framed, nor even in the memorandum of the first appeal the Defendant agitated that there ought to have been framed an issue as to whether or not the Plaintiff was a money lender. 12. Turning to the question, as to whether the learned Courts below committed any error of law in rejecting the evidence of DW-1 and DW-2, suffice it to mention here that both the learned Courts below have scanned the evidence on record and disbelieved the evidence of the Defendant, who examined himself as DW-1, and his witness, who was examined as DW-2 and, for not believing the evidence adduced by both of them, learned Courts below have assigned cogent reasons. No flaw or error, factual or legal, in marshalling the evidence on record, could be pointed out at the time of hearing of this appeal. This apart, it is worth noticing that in support of his case that he has already repaid the loan, which he had taken, the Defendant asserted that he had made the repayment in his office and at the relevant point of time, as many as 10/12 employees of their establishment were present. This apart, it is worth noticing that in support of his case that he has already repaid the loan, which he had taken, the Defendant asserted that he had made the repayment in his office and at the relevant point of time, as many as 10/12 employees of their establishment were present. The Defendant did not, however, examine any of those 10/12 employees except DW-2 and the learned Courts below noted that it is the admitted case of the parties that even DW-2 had take loan from the Plaintiff and as DW-2 had failed to repay the loan, the Plaintiff had instituted a suit for realization of the money, which he had lent to the Defendant. In the face of these facts, the learned Courts below did not find the evidence given by the Defendant and his witness believable and trustworthy. I see no reason to adopt a view different from what the learned Courts below have taken. 13. Because of what have been pointed out and discussed above, I find absolutely no merit in this appeal. No question of law, far less substantial question of law, can be said to have been raised in this appeal. This appeal, therefore, fails and the same shall accordingly stand dismissed with cost. 14. Send back the LCR. Appeal dismissed