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Madhya Pradesh High Court · body

2008 DIGILAW 690 (MP)

Reep Singh v. Om Prakash Sharma

2008-05-13

N.K.MODY

body2008
JUDGMENT 1. Being aggrieved by the judgment and decree dated 31.10.2007 passed by Second Additional District Judge, Dewas in Civil Suit No. 4 -B/2007, whereby the suit filed by the respondent for realization of Rs. 2,33,920/- was decreed in part and a sum of Rs. 1,36,000/- was awarded alongwith interest @ 9% P.A. w.e.f. 16.12.2003, the present appeal has been filed. 2. Short facts of the case are that the respondent filed a suit against the appellant on 15.12.2006 for realization of Rs. 2,33,920/- alleging that appellant was in need of money hence respondent lent a sum of Rs. 1,36,000/- to the appellant on 16.12.2003. It was alleged that appellant executed promissory note in favour of respondent whereby appellant agreed to repay the loan amount alongwith interest @ 36% P.A. It was alleged that as per the promissory note appellant agreed to repay the amount alongwith interest. Further case of the respondent was that respondent issued a notice to the appellant on 24.11.2006, which was duly received by Ramprasad who is living with the appellant. It was alleged that inspite of notice the loan amount alongwith interest was not paid to the respondent. It was alleged that respondent is entitled for a sum of Rs. 2,33,920/- which includes principal and interest. 3. The suit was contested by the appellant by filing the written statement, wherein all the plaint allegations were denied. It was alleged in the written statement that on 16.12.2003 no amount was taken as loan by the appellant. Appellant also denied the execution of promissory note. It was alleged that father of the appellant took loan from the respondent and executed the promissory note in favour of respondent. It was alleged that the loan was repaid by the father of the appellant. It was alleged that at that time respondent assured that promissory note shall be returned as the same are kept at Indore. It was alleged that there is overwriting on the promissory note and there is an interpolation in the year. It was further alleged that respondent is a moneylender and is lending money on a higher rate of interest. It was alleged that respondent has lent the money to member of persons, whose names were mentioned in Para No. 16 in the statement. It was prayed that the suit filed by the respondent be passed. It was further alleged that respondent is a moneylender and is lending money on a higher rate of interest. It was alleged that respondent has lent the money to member of persons, whose names were mentioned in Para No. 16 in the statement. It was prayed that the suit filed by the respondent be passed. After framing of the issues and recording of the evidence learned Trial Court decreed the suit in part and directed the appellant to pay a sum of Rs. 1,36,000/- with interest @ 9% P.A. against which the present appeal has been filed. 4. Learned counsel for the appellant argued at length and submits that learned Court below committed error in passing the decree against the appellant. Learned counsel submits that learned trial Court failed to consider that the alleged promissory note bears the date as 16.12.2003, while the respondent has admitted in his cross-examination that no promissory note was executed on 16.12.2003. It is submitted that since the respondent himself has stated that no promissory note was executed on 16.12.2003, therefore, learned Court below committed error in decreeing the suit. Learned counsel further submits that learned Court below committed error in holding that there was no overwriting in the promissory note. It is also submitted that the learned trial Court erred in awarding the interest @ 9% P.A. while it was not a commercial transaction. 5. Shri A. Kanchwala, learned counsel for the respondent supports the judgment and decree passed by the learned Court below and submits that after due appreciation of evidence learned Court below has decreed the suit, which requires no interference. 6. From perusal of the record it appears that to prove the case respondent has filed the promissory note Exh. P-l, notice Exh. P-2 and also examined himself as PW 1 and Sureshchandra (PW 2), while appellant has examined himself as DW 1. From the statement of Omprakash, who is respondent herein, it is evident that respondent has lent the money to other persons as well and cases are also pending in the Court for recovery of the amount. This itself is sufficient to hold that respondent is a moneylender and the respondent is neither having the licence under the provisions of Money Lenders Act nor formalities which are necessary for a moneylender has been observed. This itself is sufficient to hold that respondent is a moneylender and the respondent is neither having the licence under the provisions of Money Lenders Act nor formalities which are necessary for a moneylender has been observed. There were number of aspects, which have not been taken into consideration by the learned Court below while decreeing the suit which are as follows: (a) Promissory note Exh. P-l bears the date of execution as 16.12.2003. There is a inter-pollution in the numerical 3, which can be visualized from the naked eye. While the case of the appellant is that numerical o has been converted into 3 with a motive to convert the date 16.12.2000 in 16.12.2003. (b) Language of the promissory note shows that it is the appellant who has executed the promissory note but the revenue stamp which has been affixed on Exh. P-l also bears the signature of father of the appellant and one Indersingh. There is no explanation Rameshwar Dangi and Indersingh has signed the permission while the loan was taken by the appellant. (c) On the promissory note above the alleged signature of appellant, there is a signature of father of appellant. Since appellant was the borrower, therefore, why the father of the appellant was first signatory, has not been explained. (d) There is no explanation why no action was taken by the respondent from 16.12.2003 to 24.11.2006 when the notice was issued. (e) Suit has been filed on the last day of limitation i.e., on 15.12.2006. It is true that the suit is in limitation but a person who is lending money on exorbitant rate of interest i.e., @ 36% P.A. will not keep silence for a period of 3 years and will file the suit on the last day when the limitation to file the suit is expiring. (f) There is nothing on the record to show that what was the necessity for which such a huge amount of loan was given to the appellant who is an agriculturist. There is nothing on record to show that from where the amount was withdrawn by the respondent for giving the loan to the appellant. (g) No books of accounts were filed by the respondent to corroborate the transaction of Exh. P-l. (h) Sureshchandra (PW 2) who is witness to Exh. P-l has specifically admitted that at the time of execution of Exh. (g) No books of accounts were filed by the respondent to corroborate the transaction of Exh. P-l. (h) Sureshchandra (PW 2) who is witness to Exh. P-l has specifically admitted that at the time of execution of Exh. P-l no money transaction took place before him. (i) Respondent himself has admitted in his statement that he has not lent any money to appellant Roopsingh and Inder Singh but obtained the signature on Exh. P-l only because they are the sons and living jointly with the father. This part of the statement is sufficient to show that virtually no transaction took place between the parties vide Exh. P-l. (J) Inspite of the statement of Sureshchandra who has specially denied any money transaction in his presence, Devsingh other witness to the document Exh. P-I was not examined for the best reasons known to the respondent. 7. From perusal of the record, it is evident that none of the aforesaid aspects were taken into consideration by the learned trial Court while decreeing the suit filed by the respondent. In the facts and circumstances of the case in the opinion of this Court learned Court below committed error in decreeing the suit. This Court is further of the view that vide Exh. P-l no loan was given by the respondent to the appellant. In view , was appeal filed by the appellant stands allowed and the judgment and passed by the learned Court below stands set aside. No order as is.