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2014 DIGILAW 38 (MAN)

Thokchom Suren Singh v. Laishram Priyokumar Singh

2014-04-08

LAXMI KANTA MOHAPATRA

body2014
JUDGMENT L.K. Mohapatra, Actg. C.J. This appeal arises out of the judgment and decree dated 31.3.2011 passed by the learned Civil Judge, Sr. Divn, Manipur West in Original (Money) Suit No. 6 of 2009. The respondent was the plaintiff in the suit. The case of the plaintiff-respondent is that he and the appellant are childhood friends and residents of the same locality. On 20.3.2007, the defendant-appellant, for the purpose of his business, requested the plaintiff-respondent for a loan of Rs. 1,60,000/- (Rupees One Lakh Sixty Thousand) only on condition that the said amount shall be paid back within one year with interest @ 4% per month. In the event of failure to pay the amount, the plaintiff-respondent shall be entitled to recover the principal and interest by selling the properties of the defendant-appellant. In this regard, an Agreement was drawn up in writing in presence of the witnesses. In accordance with the agreement, the defendant-appellant started paying a sum of Rs. 6,400/- towards interest every month till Sept/2007. Thereafter, he stopped paying the monthly interest and in spite of repeated requests, the defendant-appellant neither returned principal amount of Rs. 1,60,000/- nor the interest accrued after Sept/2007. Finding no other way, the plaintiff-respondent submitted a complaint before the Officer in-Charge, Thoubal Police Station and a case was registered for commission of offence u/s. 420/406/506/34 of I.P.C. However, before any action could be taken, the defendant obtained anticipatory bail. When the plaintiff found that there is no other way to recover of the money, he filed the suit for recovery of the sum of Rs. 3,20,000/- (Three Lakh Twenty Thousand) towards principal of Rs. 1,60,000/- and interest of Rs. 1,60,000. 2. The defendant-appellant filed written statement in the said suit. Though he admitted to have taken loan of Rs. 1,60,000/- from the plaintiff-respondent on condition that he would pay interest @ 4% per month, he denied to have a written agreement with the plaintiff-respondent. It was the further case of the defendant-appellant that he had not only paid interest but also Rs. 1,50,000/- towards principal and accordingly was only required to pay 10,000/- rupees to the plaintiff-respondent. On the basis of the pleadings of the parties, the learned Civil Judge framed 5 (five) issues which are as follows:- 1. whether the plaintiff had lent a sum of Rs. 1,50,000/- towards principal and accordingly was only required to pay 10,000/- rupees to the plaintiff-respondent. On the basis of the pleadings of the parties, the learned Civil Judge framed 5 (five) issues which are as follows:- 1. whether the plaintiff had lent a sum of Rs. 1,60,000/- (Rupees One Lakh and sixty thousand) only to the defendant payable within one year with interest at the rate of 4% per month under an agreement dt. 20.3.2007 or not? 2. whether the agreement dt. 20.3.2007 is a fabricated and manufactured one or not ? 3. whether the plaintiff has no right to charge interest more than 3% per month or not? 4. cause of action 5. Reliefs. 3. The plaintiff-respondent examined three witnesses including himself whereas the defendant-appellant examined himself as the sole witness. The agreement dated 20.3.2007 was exhibited as Ext-A/2. The learned Civil Judge accepted the case of the plaintiff that an agreement had been executed between the plaintiff-respondent and the defendant-appellant on 20.3.2007 wherein the defendant-appellant acknowledged receipt of Rs. 1,60,000/- from the plaintiff-respondent on condition that he would pay back the money with interest @ 4% per month. Referring to the oral evidence adduced, the learned Civil Judge held that the defendant-appellant had failed to pay any amount out of the principal and also failed to pay interest after Sept/2007. Accordingly, with the above finding, the learned Civil Judge passed the decree for recovery of Rs. 3,20,000/- from the defendant-appellant and further directed that on failure on the part of the defendant-appellant to pay the decreetal amount, he would be liable to pay interest @ 6% per annum. 4. Shri A. Golly, the learned counsel appearing for the appellant assailed the judgment of the learned Civil Judge basically on five grounds: a- The defendant-appellant had examined himself as the sole witness but his evidence in-chief was not in the form of affidavit and therefore there was a procedural irregularity in recording evidence by the trial Court; b- Though the defendant-appellant had taken specific plea in the written statement that he had paid back part of the principal and the entire interest and was only liable to pay Rs. 10,000/- no issue, in this regard, was framed by the trial court as a result of which the defendant-appellant could not lead evidence to prove said defence taken in the written statement; c- Ext-A/2 is an English translation of the original and the same was not proved in accordance with law. In this regard, it was contended that the scribe of the said document was not examined by the plaintiff-respondent nor the contents thereof had been proved; d- if Ext.-A/2 is construed to be an instrument/bond, stamp duty was required to be paid on the said document and admittedly no stamp duty having been paid on the said document, the Court could not have acted upon such a document. e- In view of provisions contained in Money Lenders Act interest more than 3% per month is not payable. 5. So far as the first ground of challenge is concerned, from the record it appears that oral evidence of the defendant was recorded by the trial court who examined himself as DW/1. Or 18 r. 4 of the CPC, which was inserted by Act 104 of 1976 provides that in every case examination in-chief of a witness shall be on affidavit and copy thereof shall be supplied to the opposite party or the party who calls him for evidence. Relying on the above provision, it was contended by the learned counsel for the appellant, Mr. A Golly, that in contravention of the said provision, the learned Civil Judge recorded the oral evidence of the defendant-appellant who examined himself as DW/1. Even if I accept contention of the learned counsel appearing for the appellant in this regard it can only be said that it was a procedural irregularity committed by the learned Civil Judge without affecting the merit of the case. The defendant-appellant has also not been able to establish as to how he has been prejudiced by his oral examination instead of his examination in-chief in the form of an affidavit. If no prejudice has been caused to the defendant-appellant and only a procedural irregularity has been committed by the learned Civil Judge, the entire proceeding cannot be treated to be vitiated. Therefore, I do not find any substance in the first ground taken by the learned counsel for the appellant. The decision relied upon by the learned counsel for the appellant in the case of Ameer Trading Corporation Ltd. Vs. Therefore, I do not find any substance in the first ground taken by the learned counsel for the appellant. The decision relied upon by the learned counsel for the appellant in the case of Ameer Trading Corporation Ltd. Vs. Shapoorji Datta Processing Ltd.: AIR 2004 SC 355 in relation to the above ground, has no application in view of the reasons stated above. 6. So far as the second ground of challenge is concerned, the same relates to non framing of an issue with regard to the defence taken by the defendant-appellant that he had paid back part of the principal and the interest and was only liable to pay a sum of Rs. 10,000/- It was contended by Mr. A Golly, learned counsel for the appellant that a specific plea having been taken by the appellant in this regard, it was the duty of the learned Civil Judge to frame an issue and allow the party to lead evidence. The above argument initially appeared to be acceptable, but on examination of the evidence of the defence, I find that even if no such issue had been framed, in examination in-chief, he had stated that he used to pay a sum of Rs. 6,400/- as interest from time to time and had paid the interest till the month of Feb/2007. Even though no such issue was framed by the learned trial court, the defendant also led evidence with regard to payment of interest as claimed by him in the written statement. Therefore, the contention of the learned counsel for the appellant that in absence of any issue the defendant could not lead evidence to support the plea taken by him, is not fully correct. Moreover, in the written statement, there is no mention of any document on the basis of which the defendant-appellant can claim that he had paid major part of the principal and the entire interest. Therefore, I am of the view that though on the face of such defence taken in the written statement, it would have been appropriate on the part of the trial court to frame an issue, the defendant never objected to or file any application for framing additional issue during pendency of the suit. Therefore, I am of the view that though on the face of such defence taken in the written statement, it would have been appropriate on the part of the trial court to frame an issue, the defendant never objected to or file any application for framing additional issue during pendency of the suit. Moreover, he also led evidence to some extent during his oral examination in-chief and had not made any mention of any document in support of his plea that he had paid major part of the principal amount and the entire interest. In regard to this ground also I find no justification to interfere with the impugned judgment and decree of the trial court. In relation to the above ground, the learned counsel for the appellant cited two decisions of the Karnataka High Court (i) reported in 1999 (1) CCC 2651999 (2) Kar LJ 548 (Nanjunbachari vs. Chairman Karnataka Electricity Board, Bangalore) and the other reported in 1998 (1) CCC 330 (D.L. Siddappa vs. Abdul Sattar Sab). When a particular issue is to be framed on the plea of the parties and shall differ from case to case. In view of the reasons stated earlier, I am of the view that the above two decisions have no application in the facts of this case. 7. Ground Nos. 3 and 4 are inter-related. It was submitted by Mr. A. Golly, learned counsel for the appellant that the so-called agreement dated 20.3.2007 is the English translation of the original and neither the scribe of the said document was examined to prove the document nor the contents of the said document had been proved by the plaintiff. Therefore, no reliance can be placed by the trial Court on such document to pass a decree. It was also contended that if the said document at Ext-A/2 is construed to be an instrument/bond, stamp duty as provided in the Indian Stamp Act should have been paid on the same. In absence of payment of stamp duty, the said document also could not be relied upon the trial court. 8. From the evidence adduced before the trial court, it appears that PW/1, the plaintiff-respondent, proved the said agreement Ext-A/2. The English translation appears to have been written by the plaintiff-respondent himself. However, it is a fact that the original agreement was neither produced before the court nor proved. 8. From the evidence adduced before the trial court, it appears that PW/1, the plaintiff-respondent, proved the said agreement Ext-A/2. The English translation appears to have been written by the plaintiff-respondent himself. However, it is a fact that the original agreement was neither produced before the court nor proved. However, the above argument of the learned counsel for the appellant may not have bearing on the ultimate result of the suit in view of admission of the defendant-appellant in the written statement and his deposition as well. In the written statement filed by the defendant-appellant, he not only admitted receipt of the loan of Rs. 1,60,000/- from the plaintiff-respondent but also admitted that he was to pay back the said amount with interest @ 4% per month. This admission appears not only in the written statement but also in the evidence of the defendant-appellant (DW-1). In view of such admission on the part of the defendant-appellant Ext. A/2, the written agreement, loses its relevance. Even if I discard the said document, Ext-A/2, in view of the admission of the defendant-appellant in written statement as well as in his deposition that he had taken a sum of Rs. 1,60,000/- from the plaintiff-respondent as loan and had also agreed to pay interest @ 4% per month, the decree could be passed on the basis of such admission. The learned counsel for the appellant, in relation to the above two grounds, had cited number of decisions which I have not referred to, considering the fact that on the admission of the defendant-appellant as stated earlier, a decree could be passed against him. 9. So far as the last ground of challenge is concerned, it appears that the appellant had not raised such a plea before the trial court and consequently no issue had been framed. Mr. Kh. Mani, learned counsel appearing for the plaintiff-respondent apart from replying to the grounds taken by the appellant, also submitted that the plea taken by the appellant is raised for the first time before the first appellate court and the same is not permissible in law. In this regard, he relied upon a decision of the Apex Court in the case of Krishnapasuba Rao Kundapur (dead) after him his l.r. & another vs. Dattalraya Krishnaji Karani reported in AIR 1966 SC 1024 . In this regard, he relied upon a decision of the Apex Court in the case of Krishnapasuba Rao Kundapur (dead) after him his l.r. & another vs. Dattalraya Krishnaji Karani reported in AIR 1966 SC 1024 . In the reported case, plea of the res judicata was not raised before the High Court and accordingly Supreme Court refused to entertain such a plea. But so far as question of law is concerned, there is no dispute that the same can be raised at any point of time. There is no material on record to show that the plaintiff-respondent was a many lender and such amount had been given to the appellant in regular course of business. An isolated transaction shall not attract the provisions of the Money Lenders Act. Since I have found that there is no substance in all the five grounds taken by the learned counsel for the appellant, consequently I find no merit in the appeal. I accordingly dismiss this appeal.