Research › Search › Judgment

Madhya Pradesh High Court · body

2013 DIGILAW 718 (MP)

Harnam Singh v. Suresh Kumar Gond

2013-06-27

M.K.Mudgal

body2013
ORDER Mudgal, J. 1. The appellant/defendant has filed the appeal under section 96 of Civil Procedure Code, being aggrieved by the judgment and decree dated 17.05.01, passed by the Court of Second Additional District Judge, Dabra, District Gwalior (Shri H.U. Ahmed) in Civil Suit No.9-B/2000 decreeing the suit. In this appeal appellant is referred as “defendant” and the respondent as “plaintiff”. 2. The defendant’s signature on the Ex-P/1 dated 20.7.98 is not disputed. 3. The brief facts necessary for adjudication of this matter are as under:- The plaintiff filed a suit for recovery of Rs.65,320/- against the defendant on 22.7.2000 stating that the defendant borrowed Rs.44,000/- at the 2% rate of interest per month from the plaintiff on 20.7.98 for agriculture purpose and agreed to pay the amount with interest by 20.7.99. The plaintiff further alleged that a document for payment of the amount Ex-P/1 dated 20.7.98 was executed by the defendant in favour of the plaintiff. The due amount was not paid by the defendant as agreed in Ex-P/1. Consequently, a registered demand notice dated 20.6.2000 Ex-P/2 was issued to the defendant who received the notice through the acknowledgment Ex-P/4. In spite of that the entire loan amount with interest Rs.65,320/- was not paid by the defendant. 4. The defendant denying the allegations made in the plaint has submitted that he never took loan of Rs.44,000/- from the plaintiff. The defendant has further alleged that the Ex-P/1 was not executed by him voluntarily and he was forcibly taken away by the plaintiff and his associates when he was passing by the plaintiff’s house and he was forced to put his signature on the stamp paper. The defendant also denied to have received the notice Ex-P/2. 5. The learned trial Court after framing six issues, recording evidence of the parties and having considered the recorded evidence has decreed the suit as stated earlier by impugned judgment. 6. Heard the arguments of the learned counsel for the appellant and perused the record. 7. In this appeal mainly two issues crop up for consideration - “(a) Whether the defendant after receiving Rs.44,000/- executed the document Ex-P/1 in favour of the plaintiff to pay the borrowed money? (b) Whether the findings given by the trial Court decreeing the suit are based on proper reasonings?” 8. 7. In this appeal mainly two issues crop up for consideration - “(a) Whether the defendant after receiving Rs.44,000/- executed the document Ex-P/1 in favour of the plaintiff to pay the borrowed money? (b) Whether the findings given by the trial Court decreeing the suit are based on proper reasonings?” 8. Assailing the legality of the impugned judgment, the learned counsel for the appellant/defendant has contended that the learned trial Court has committed gross error in decreeing the suit as the plaintiff suit is based on the document dated 20.7.98 Ex-P/1 which was not duly stamped. In spite of this fact the document was admitted in evidence and made the basis in decreeing the suit. The contention raised by the learned counsel does not seem to be correct because the document Ex-P/1 i.e. in the nature of a bond was admitted in the evidence on 31.3.01 when the plaintiff Suresh Kumar’s statement was recorded and at that time no objection regarding the document having been admitted was taken on behalf of the defendant. As per section 36 of the Stamp Act once a document is admitted in the evidence and objection regarding insufficiency of stamp is not taken, subsequently objection in respect of insufficiency of stamp cannot be raised. The High Court Full Bench in the case of Balkrishna v. The Board of Revenue, M.P. Gwalior. I.L.R. 1969 JLJ 941 = 1971 MP 597 (FB) has held as under:- “Where an instrument is admitted in evidence and exhibited, then the admission of the instrument cannot be called in question on the ground that the instrument was not duly stamped.” 9. Learned counsel for the appellant has further argued that the plaintiff has failed to prove giving the amount of Rs.44,000/- to the defendant as the statement of the witnesses who put their signatures and scribe of the document Ex-P/1 were not got recorded by the plaintiff to prove his case. 10. The arguments were considered. It is true that the amount of Rs.44,000/- was not given by cheque or bank draft and the statement of the said witnesses were not got recorded by the plaintiff. 10. The arguments were considered. It is true that the amount of Rs.44,000/- was not given by cheque or bank draft and the statement of the said witnesses were not got recorded by the plaintiff. However, the findings given by the trial Court in paras 6 to 14 of the impugned judgment cannot be held arbitrary or perverse as the defendant himself in para 3 of his statement has admitted that the contents of the document Ex-P/1 is in his handwriting and is signed by him. Where the execution of document Ex-P/1 was not disputed, there was no need to get the statement of the witnesses recorded by the plaintiff. As the entire contents of Ex-P/1 by which the amount of Rs.44,000/- was received by the defendant and the receipt was recorded by him. The onus is shifted on the defendant to rebut the contents of Ex-P/1 but he has failed to do so. Nonetheless, the defendant has tried to say that his signature was taken on Ex-P/1 forcibly by the plaintiff as pleaded in para 2 of the written statement and stated in para 3 of his statement. The story put forth by the defendant appears to be false and concocted as discussed by the learned trial Court in the impugned judgment because no report in this regard was lodged immediately by the defendant to the police and no sufficient reason in this respect has been shown by him. The defendant has given a false explanation saying that the matter was reported to the village Sarpanch by Ex- D/7 but to prove this fact the statement of Sarpanch was not got recorded by the defendant. Moreover, the village Sarpanch was not a competent authority to take action in respect of commitment of any offence. The report to the police authority in this respect was made by the defendant on 23.6.2001 by Ex-D/4 to Ex-D/6 after filing of this suit on 22.7.2000 by the plaintiff against him. 11. Considering the above facts and circumstances, it is inferred that the document Ex-D/4 to D/6 were prepared falsely by the defendant to support his defence however they have no significance. 12. 11. Considering the above facts and circumstances, it is inferred that the document Ex-D/4 to D/6 were prepared falsely by the defendant to support his defence however they have no significance. 12. It is pertinent to mention here that before filing the suit the plaintiff has issued a registered notice Ex-P/2 by the postal receipt Ex-P/3 to the defendant at his residential address and the defendant received the same by acknowledgment Ex-P/4 but the defendant did not reply the same immediately denying the contents of the notice. In such circumstances, it is inferred that the defendant had no basis to deny the allegations of plaint at the time of receiving the notice. The entire defence story has been cooked up by the defendant after receiving the summons of the suit. Therefore, the learned trial Court has not committed any error in disbelieving the defence of the defendant and relying on the plaintiff’s statement. It would be apt to say here that as per section 134 of the Evidence Act, in order to prove a fact number of witnesses should not be counted, only the merit of the statement of the witnesses should be assessed. In view of the facts the defendant’s statement is not trustworthy. 13. The learned counsel for the defendant has further submitted that during continuance of execution proceeding the defendant has deposited the entire decreed amount before the executing Court, hence, the impugned judgment and decree be set aside. This contention does not appear to be acceptable as the decreed amount has been deposited or not by the defendant is a question that is not to be considered by this Court in this appeal. If the defendant has deposited the decreed amount, he may make a submission to that effect before the executing Court. 14. The defendant’s learned counsel has further argued that 2% rate of interest per month awarded by the trial Court is excessive, it may be reduced 1% per month. This contention also seems to be discardable since the rate of interest was contracted by the defendant himself in the Ex-P/1. Normally, the Court should not interfere where the contract is made by the party for payment of interest unless the rate of interest is found to be exorbitant and excessive. But in the case in hand, it cannot be said to be exorbitant. Normally, the Court should not interfere where the contract is made by the party for payment of interest unless the rate of interest is found to be exorbitant and excessive. But in the case in hand, it cannot be said to be exorbitant. On the basis of the aforesaid analysis, it is clear that no flow has been found to interfere in the findings arrived at by the trial Court in decreeing the suit. Therefore, affirming the impugned judgment and decree, the appeal being found meritless is hereby dismissed. No order as to the cost is required in this appeal. Decree be drawn up accordingly.