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2015 DIGILAW 762 (GAU)

RINA BALA DEVI v. MD. AHMED ALI

2015-06-17

SUMAN SHYAM

body2015
JUDGMENT : 1. Heard Mr. H. Das, learned counsel for the appellant. 2. Being aggrieved by the concurrent judgment and decree dated 12.12.2014 passed by the learned Civil Judge, Goalpara in Money Appeal No.1/2014 the defendant as appellant has approached this Court by filing the instant Second Appeal. 3. The case of the respondent/plaintiff, in brief, is that the plaintiff had advanced a loan for an amount of Rs.1,00,000/- (Rupees One Lac) carrying interest at the rate of 10% per annum to the defendant with an agreement to repay the same within six months. There was an agreement entered by and between the parties to that effect but despite the same the appellant/defendant failed to repay the loan amount within the stipulated period as a result of which the plaintiff/respondent had to serve a pleaders notice upon the defendant demanding repayment of the loan amount. Since the said pleaders notice failed to evoke any response from the defendant, hence, the plaintiff was compelled to institute Money Suit No.1/2011 in the Court of Munsiff No.1, Goalpara praying for a decree for recovery of the said amount along with interest as applicable. 4. Despite receipt of summons in connection with the aforementioned Money Suit the defendant failed to submit her written statement on time, contesting the case of the plaintiff. As such, the suit proceeded ex parte against the defendant although she was permitted to cross-examine the plaintiff’s witnesses. 5. The plaintiff’s side examined as many as 6 witnesses who were duly cross-examined by the defendant. The plaintiff had also produced documentary evidence. 6. On the basis of the pleadings contained in the plaint the learned Court below had framed certain points for determination which are as follows :- “1. Whether there is a cause of action for the suit? 2. Whether the suit is maintainable in its present form and manner? 3. Whether defendant had taken loan of Rs.1,00,000/- (one lakh) with 10% interest per month from the plaintiff? 4. Whether plaintiff is entitled to any relief prayed for? 5. To what other relief(s) the parties are entitled?” 7. During the course of trial the plaintiff’s side had produced the agreement marked as Ext-1 bearing the signature of the defendant. All the witnesses examined by the plaintiff supported his case to the effect that the defendant had, in fact, taken the loan amount from the plaintiff. 5. To what other relief(s) the parties are entitled?” 7. During the course of trial the plaintiff’s side had produced the agreement marked as Ext-1 bearing the signature of the defendant. All the witnesses examined by the plaintiff supported his case to the effect that the defendant had, in fact, taken the loan amount from the plaintiff. During the cross-examination of the plaintiff’s witnesses the defendant could not dislodge the evidence brought on record by the plaintiff. On the basis of the oral testimony as well as the document exhibited in the form of Ext-1 (loan agreement), duly proved by the plaintiff, the learned Court below recorded a finding to the effect that the amount of Rs.1,00,000/- (Rupees One Lac) was taken by the defendant as loan from the plaintiff by executing Ext-1 which the defendant failed to repay. On the basis of such concurrent finding of fact the Court below decreed the suit filed by the plaintiff/respondent. 8. Mr. Das, learned counsel for the appellant, submits that the appellant could not file her written statement on time due to negligence of her counsel and not due to any latches or negligence on her part. He further submits that the learned Court below failed to consider the fact that the suit of the plaintiff was itself barred by the provisions of the Assam Money Lenders Act, 1934. In support of his argument he relied upon a decision of this Court reported in 2008 (Suppl) GLT 664 [Hem Chandra Chaudhury vs. Hahi Ram Bora]. It may be the case that the written statement could not be filed due to the negligence on the part of the learned counsel appearing for the defendant. Even if that be so, the defendant did have the opportunity to approach the higher forum against the order by which she was debarred by the trial Court from filing the written statement. Admittedly, no such attempt was made by her despite the fact that she had ample opportunity of doing so. There is nothing on record to show that any complaint was made against the learned Advocate, who had allegedly failed to file the written statement on time despite proper instructions from the defendant. In view of the above, it is not possible to accept the submission made by Mr. There is nothing on record to show that any complaint was made against the learned Advocate, who had allegedly failed to file the written statement on time despite proper instructions from the defendant. In view of the above, it is not possible to accept the submission made by Mr. Das that the defendant was vigilant about her rights but could not protect the same due to negligence of her lawyer. 9. As regards the plea of the suit being barred by Money Lenders Act, the learned Court below has categorically observed that the appellant/defendant had failed to establish the said plea by proving the fact that the plaintiff was a professional money lender. Whether or not the suit filed by the plaintiff is barred under Section 7-D of the Assam Money Lenders Act, 1934 would depend on the facts and circumstances of the case, if it is established that the plaintiff had lent money in course of his business as a money lender. Since the defendant had not contested the suit by filing written statement, hence, there was no occasion for the defendant to prove and establish the said fact by leading evidence. In that view of the matter, the learned Court below had rightly rejected the plea taken by the appellant as regards the suit being barred under the Money Lenders Act. 10. From the perusal of the decision of this Court rendered in the case of Hem Chandra Chaudhury (supra) relied upon by Mr. Das, it appears that the said judgment goes against the appellant in the facts and circumstances of the present case as this Court had categorically observed that the applicability bar of Section 7-D of the Assam Money Lenders Act, 1934 cannot be considered in the absence of any assertion in the written statement that the money lent by the plaintiff was in course of his business as a money lender. 11. In view of what has been discussed herein before, this Court is of the opinion that no substantial question of law arises for decision in this case. The concurrent finding of facts recorded by both the Courts below appears to be based on evidence on record and therefore, I do not find any infirmity in the conclusions drawn by the Court below. In the result, this Second Appeal stands dismissed.