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2016 DIGILAW 1853 (HP)

T. P. Pandey v. Inder Singh

2016-09-01

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. The present appeal is maintained by the appellant/plaintiff (hereinafter referred to as the ‘plaintiff’) challenging the findings of the District and Sessions Judge, Bilaspur, dated 20.5.2006, in Civil Appeal No.75 of 2003, whereby the learned District and Sessions Judge, reversed the judgment and decree of the learned Senior Sub Judge, Bilaspur, dated 30.4.2013, in Civil Suit No.136/1 of 1998. 2. Briefly stating the facts giving rise to the present appeal are that the plaintiff filed a suit for recovery of Rs.71,000/- before the learned Senior Sub Judge, Bilaspur, H.P. by way of damages on the ground that the appellant is running a thread Industry in the Industrial Area, Bilaspur since the year 1980. The plaintiff had applied for additional loan to H.P.F.C. for purchase of raw-material in the year 1994 and offered a building of Shri S.S. Bhatti, as security, which was undisputed. Defendant No.1/respondent (hereinafter referred to as the ‘respondent No.1) being the Vice-President of Small Scale Industry Association, Bilaspur, made a false and wrong complaint to the H.P.F.C., Shimla, alleging therein that the property offered as security is disputed property and for such reasons the sanction of loan was delayed for one year. An inquiry was also alleged to be conducted by the Deputy General Manager, Technical of H.P.F.C. on 28.2.1996 from the appellant and the appellant was asked by the H.P.F.C. for submitting the search report in respect of the security offered for raising such loan. It has further been alleged that because of the complaint filed by defendant No.1, the loan could not be sanction on the security offered and the appellant had to arrange for a new security and the loan case of the appellant was delayed considerably and he suffered a loss of Rs.71,000/- and ultimately the loan was sanction in December, 1996 to the tune of Rs.2,00,000/- instead of Rs.3,33,000/-. It has been averred that the complaint was filed with a malafide intention to cause loss and damage to the appellant and to lower his reputation in the estimation of public. The cause of action is stated to have arisen to the appellant in the month of March, 1996, when he was asked to furnish the fresh security and thereafter on the expiry of period of notice, which was served upon the respondents (hereinafter called as the ‘defendants’). 3. The cause of action is stated to have arisen to the appellant in the month of March, 1996, when he was asked to furnish the fresh security and thereafter on the expiry of period of notice, which was served upon the respondents (hereinafter called as the ‘defendants’). 3. The suit was contested and resisted by the defendants before the learned trial Court by filing their separate written statements. Defendants No.1 to 3 had filed the joint written statement and contended that the loan cannot be obtained as a matter of right and the H.P.F.C. can only advance the loan after satisfying the viability of the Unit as well as the security of the loan. It has been admitted that defendant No.1 was the Vice-President of Bilaspur Zila Udyog Sangh and that it was reported to the H.P.F.C. that the plot offered by the plaintiff, as security, was under dispute and loan may be sanctioned after verifying the facts and the contents of the complaint. It was pleaded that the H.P.F.C. advanced the loan to different industries and the loanee have failed to repay the loan and ultimately those Units were auctioned. The defendants denied that they have made the complaint with any malafide intention to cause loss or to lower down the reputation of the plaintiff in the estimation of others. Many preliminary objections were raised on behalf of the replying defendants No.1 to 3. 4. Defendant No.4 also contested the claim of the plaintiff by filing separate written statement and admitted that the appellant/plaintiff had applied for loan in the year 1994, but on examination, he was asked to submit his proposal for working capital and also directed to submit a detailed project report, which was stated to be submitted vide letter dated 23.5.1995. It has been averred that a complaint was received on 6.11.1995 and the same was referred to Sub-office Barmana for making an enquiry into the matter and after receipt of the report on 23.1.1996, the matter was considered and defendant No.4 advised the plaintiff to submit security and affidavit from the owner of the said property declaring that the property is not under dispute and after considering the requisite papers, sanctioned a loan of Rs.2,00,000/- in favour of the plaintiff on 18.10.1996 and the loan documents were executed on 21.12.1996. The first instalment of the loan of Rs.1,50.000/- was released on 26.12.1996 and the second instalment of Rs.50,000/- on 27.2.1997, as per disbursement norms. Defendant No.4 pleaded that they are not liable to pay any damages and prayed for dismissal of the suit of the appellant/plaintiff. No replication was filed by the appellant. 5. On the pleadings of the parties, the following issues were framed by the learned trial Court on 2.11.1999:- “1. Whether the plaintiff is entitled to recover the suit amount along with interest from the defendants? OPP. 2. Whether the suit is not maintainable? OPD. 3. Whether the plaintiff is estopped from filing the suit by his own act and conduct? OPD. 4. Whether this Court has no jurisdiction to decide the suit ? OPD. 5. Relief.” 6. The Court below after deciding Issue No.1 partially in favour of the appellant/plaintiff and Issues No. 2, 3 and 4 against the defendants, decreed the suit partially for Rs.10,000/- against defendant No.1. The findings were assailed by defendant No.1 before the learned lower Appellate Court and the lower Appellate Court accepted the appeal and set-aside the judgment and decree passed by the learned trial Court. Hence, the present appeal. This appeal was admitted on the following substantial questions of law:- 1. Whether the appeal was maintainable when defendants No.2 to 4 before the learned trial Court have not been impleaded as respondents/ necessary parties in the appeal before the lower appellate Court? 2. Whether the judgment of the learned appellate Court is correct in holding that the suit of the plaintiff was barred by limitation? 7. I have heard the learned counsel for the parties and have also gone through the record of the case. 8. Learned counsel for the plaintiff has vehemently argued that the judgment and decree passed by the learned trial Court is wrongly set aside by the learned lower Appellate Court and, therefore, the appeal be allowed. He has further argued that the learned lower Appellate Court has misinterpreted the evidence on record and the appeal was required to be dismissed for want of necessary parties. He has also argued that the learned Appellate Court has wrongly held that the suit was barred by limitation. He has further argued that the learned lower Appellate Court has misinterpreted the evidence on record and the appeal was required to be dismissed for want of necessary parties. He has also argued that the learned Appellate Court has wrongly held that the suit was barred by limitation. In reply thereto, the learned counsel appearing for the defendants has argued that the findings of the learned lower Appellate Court are just, reasoned and after appreciating the facts and the law of limitation is correctly applied. 9. Defendant No.1, while appearing as DW-1, has deposed that Small Scale Industrial Association of Bilaspur in its meeting had authorized him to write a letter to the H.P.F.C. about the loan case of the plaintiff and on that basis, he had sent a letter to defendant No.4. In his cross-examination, he has admitted that there is no resolution of the Association regarding authorizing him to make such complaint against the appellant/plaintiff to defendant No.4, about his loan case. PW3 Om Prakash has also stated to the same effect. He was also General Secretary of the Bilaspur Small Scale Industry Association from the year 1997. He has deposed that there is no resolution of the Association on the record of the Association for authorizing defendant No.1 to bring to the notice of defendant No.4, the deficiencies of the security being furnished by the appellant/plaintiff. All these facts prove on record that under the garb of being the Vice President of Small Scale Industry of Bilaspur, defendant No.1, made a complaint against the plaintiff to defendant No.4 and this complaint was so timed by defendant No.1 that it reaches the office of defendant No.4, when the loan of the plaintiff to the tune of Rs.3,33,000/- was likely to be sanctioned being under process and by that time, letter Ext.D-5 of defendant No.1 reached in the office of defendant No.4 and on the basis of the complaint, fresh enquiry was ordered to be conducted vide letter Ext.D-6 and because of these circumstances, the loan case of the plaintiff was withheld. It appears that defendant No.1 is nurturing malafide intention towards the plaintiff. Defendant No.1, in his cross-examination, has admitted that there were other defaulting units in Industrial area of Bilaspur, out of which one M.K. Paints Industry was running Coco Cola business and he had made no complaint against that Unit. It appears that defendant No.1 is nurturing malafide intention towards the plaintiff. Defendant No.1, in his cross-examination, has admitted that there were other defaulting units in Industrial area of Bilaspur, out of which one M.K. Paints Industry was running Coco Cola business and he had made no complaint against that Unit. He has also admitted that he had filed a civil suit against the appellant/plaintiff, which was dismissed and he had not filed any appeal against that. He has also admitted in the cross-examination that he had no knowledge whether the security offered by the plaintiff to defendant No.4 for obtaining the loan was in fact disputed or not. All these circumstances coupled with letter of defendant No.1, Ext. D-5, proved on record that out of ill-will, defendant No.1 had made complaint against the plaintiff to the defendant No.4, who was to sanction the loan to the appellant. The written statement of defendant No.4 also proved on record that fresh security was sought by it from the plaintiff on the basis of complaint Ext.D-5, made by respondent/defendant No.1 and because of that the loan, which was to be sanctioned to the plaintiff, delayed by one year. 10. From the above, it is clear that due to the mala fide act of defendant No.1, the delay has occurred in the execution of the Unit of the plaintiff. It was not a case of defamation and damages, as has been held by the learned lower Appellate Court, but it is only for the purpose of loss caused to the plaintiff due to the act of defendant No.1. Therefore, the findings of the learned Appellate Court that the suit was for defamation and the limitation was for one year, are totally against the facts and law, as the law is incorrectly applied by the learned lower Appellate Court. So far as the appeal filed by the appellant/plaintiff before the learned Appellate Court is concerned, the same was filed against defendant No.1, which is now under challenge. So, it cannot be said that the appeal before the learned lower Appellate Court was not maintainable. Had defendant No.1 not written a letter, the loan of the plaintiff would have been sanctioned in time and the delay would not have been caused and he could not have suffered any loss. So, it cannot be said that the appeal before the learned lower Appellate Court was not maintainable. Had defendant No.1 not written a letter, the loan of the plaintiff would have been sanctioned in time and the delay would not have been caused and he could not have suffered any loss. In view of this, Question No.1 is answered holding that the appeal was maintainable before the learned Court below as the finding, which was against defendant No.1, was under challenge and Question No.2 is answered holding that the suit was within limitation and the findings of the learned lower Appellate Court that it is barred by limitation is answered accordingly. 11. The net result of the above discussion is that the judgment and decree passed by the learned trial Court holding that the plaintiff has suffered damages to the tune of Rs.10,000/- because of the act of the respondents are just, reasoned and requires to be upheld. So, the same is upheld. 12. The result of the above discussion is that the findings, as recorded by the learned lower Appellate Court, are against the law and facts and those, as recorded by the learned trial Court, are as per law. Hence, the findings recorded by the lower Appellate Court are set-aside and the judgment and decree passed by the learned trial Court is restored. However, in the peculiar facts and circumstances of the case, parties are left to bear their own costs. 13. Pending applications if any, also stands disposed of.