Research › Search › Judgment

Gauhati High Court · body

2015 DIGILAW 354 (GAU)

Putul Baishya v. Haricharan Patgiri

2015-03-23

SUMAN SHYAM

body2015
Suman Shyam, J. – Heard Mr. H. Kalita, learned counsel appearing for the appellant. Also heard Mr. K.R. Patgiri, learned counsel appearing for the respondent. 2. This second appeal has been preferred against the concurrent judgment and decree date 18.02.2014 passed by the learned Civil Judge, Barpeta in Money Appeal No. 02/2012 affirming the judgment and decree dated 03.02.2012 passed by Munsiff, Bajali, Pathsala in Money Suit No.12/2009. 3. The case of the plaintiff/respondent in brief is that acting on a request made by the appellant/defendant, the defendant had extended a loan of Rs. 1,00,000/- (one lakh) to the defendant on executing a promissory note dated 25.01.2007. In the said promissory note, the defendant had undertaken to repay the aforesaid amount within 25.12.2007. However, despite the said promise, the defendant had failed to repay the amount, as a result of which, the plaintiff had sent a legal notice requiring the defendant to pay up the loan amount within 15 (fifteen) days from the date of receipt of the notice. Since the defendant did not pay the amount nor made any reply despite receipt of the aforesaid notice on 29.09.2009, hence, the plaintiff was compelled to institute the Money Suit for realisation of the aforementioned amount from the defendant. 4. On receipt of summons in this case, the defendant had entered appearance and contested the suit by filing written statement. The defendant took the plea that there was no cause of action for the suit; that the suit was barred by limitation; that the suit was not properly valued it was also the stand taken by the defendant that he had actually borrowed a sum of Rs. 18,000/- (eighteen thousand) from the plaintiff on 04.09.2004. Between 05.10.2004 and 05.11.2005 an amount of Rs. 25,300/- (twenty-five thousand and three hundred) with principal and interest was paid to the plaintiff on mutual understanding. The loan payment was made by Braja Talukdar to the plaintiff on the behalf of the defendant on 05.11.2005, but no money receipt was given by the plaintiff to the defendant. The defendant has further pleaded that the plaintiff had obtained signature of the defendant in a blank stamp paper and taking advantage of the said signature, the plaintiff has claimed an amount of Rs. 1,00,000/- (one lakh) from the defendant, although, the said amount was never paid to the defendant by the plaintiff. The defendant has further pleaded that the plaintiff had obtained signature of the defendant in a blank stamp paper and taking advantage of the said signature, the plaintiff has claimed an amount of Rs. 1,00,000/- (one lakh) from the defendant, although, the said amount was never paid to the defendant by the plaintiff. The defendant, therefore, prayed for dismissal of the suit. 5. On the basis of the pleadings of the parties, the learned trial Court framed the following issues:- "(1) Whether there is any cause of action for the suit? (2) Whether the suit is barred by limitation? (3) Whether the suit is properly valued and proper court fee is paid? (4) Whether the defendant has taken Rs. 1,00.000/- (on lakh) only from the plaintiff on 25.01.2007 executing the karza khatnama (promissory note)? (5) Whether the parties are entitled to the relief/reliefs as claimed for? " 6. Both the plaintiff and the defendant led their respective evidence which also includes documentary evidences. On the basis of the pleadings of the parties as well as the materials available on record, the learned trial Court decreed the suit filed by the plaintiff on contest by the judgment and decree dated 03.02.2012. 7. Being aggrieved by the judgment and decree passed by the trial Court in Money Suit No.12/09, the defendant as appellant preferred Money Appeal No.02/12 before the Court of Civil Judge, Barpeta, Assam. Learned First Appellate Court also dismissed the appeal filed by the defendant by upholding judgment and decree passed by the trial Court. 8. Being aggrieved by such appellate judgment and decree dated 18.02.2014, the defendant as appellant has preferred the second appeal. 9. I have heard Mr. H. Kalita, learned counsel appearing for the appellant. He submits that the learned Court below committed illegality in decreeing the suit of the plaintiff by ignoring the fact that the scribe of Ex-3 namely, one Rajya Talukdar was not examined as a witness by the plaintiff. He further submits that testimony of PW-3 was full of contradiction which fact has not been taken note of by the Courts below. He, therefore, submits that the decision and conclusion recorded by the Courts below are vitiated by perversity and therefore, is not sustainable in the eye of law. 10. Mr. He further submits that testimony of PW-3 was full of contradiction which fact has not been taken note of by the Courts below. He, therefore, submits that the decision and conclusion recorded by the Courts below are vitiated by perversity and therefore, is not sustainable in the eye of law. 10. Mr. Patgiri, learned counsel for the respondent submits that once the defendant has admitted his signature in Ex-3, the onus shifted on the defendant to establish his version as set out in the written statement. Both the Courts below have concurrently held that the defendant has failed to prove the stand taken in the written statement by adducing cogent evidence on record. On the contrary, the plaintiff has succeeded in discharging his evidential burden to prima facie prove and establish this case that an amount of Rs. 1,00,000/- (one lakh) was taken as loan by the defendant from the plaintiff on the basis of the promissory note signed by the defendant on 25.01.07. 11. I have considered the rival submissions made by the learned counsels for the parties and have also perused the materials on record. On perusal of the judgment and decision rendered by the First Appellate Court, it is apparent that the Court below has concurred with the finding of fact recorded by the trial Court to the extent that the amount of Rs. 1,00,000/-(one lakh) had in fact been taken by the defendant by way of loan on the basis of promissory note (karza khatnama) dated 25.01.07. It has also been recorded by the Courts below that the signature of the defendant on the promissory note (Ex-3) has not been denied by him. But the defendant has stated that the amount of Rs. 18,000/- (eighteen thousand) taken by him as a loan from the plaintiff has been returned by the defendant along with interest within 05.11.05. Having asserted the same, it was incumbent upon the defendant to lead evidence so as to prove his case. However, since the defendant has failed to do so, having regard to the fact that the plaintiff as prima facie establish his version of the case, the learned trial Court decreed the suit of the plaintiff. The decree passed by the trial Court has also been upheld by the First Appellate Court by giving reasons. However, since the defendant has failed to do so, having regard to the fact that the plaintiff as prima facie establish his version of the case, the learned trial Court decreed the suit of the plaintiff. The decree passed by the trial Court has also been upheld by the First Appellate Court by giving reasons. In the facts and circumstances of the case, I do not find any justifiable ground so as to cause any interference with the concurrent findings of fact recorded by both the Courts below. The substantial question of law formulated by the appellant, therefore, do not arise for adjudication in the present appeal. This Court while hearing the second appeal cannot re-appreciate the evidence on record and arrive at different findings of fact. 12. It is submitted by Mr. Kalita that although the defendant could not lead evidence to establish his version, yet this is a fit case where an opportunity should be given to the defendant, if necessary by remanding the matter back to the First Appellate Court for taking evidence. The said submission of Mr. Kalita cannot be accepted as such a recourse would be completely contrary to the principles of law governing adjudication of civil suit/appeals. In that view of the matter, there is no merit in the second appeal warranting its admission by this Court. Accordingly, this second appeal would stand dismissed. _