Research › Search › Judgment

Madras High Court · body

2018 DIGILAW 2359 (MAD)

M. Rajangam v. B. Gopalakrishnamoorthy

2018-08-02

KRISHNAN RAMASAMY

body2018
ORDER : The petitioner herein originally filed a Second Appeal in SA.SR.No.17631 of 2002 aggrieved by the Judgment in A.S.No.17 of 1998 dated 19.10.2011 on the file of the Additional District Judge, Vellore. 2. Subsequently, the petitioner herein filed CMP.No.1531 of 2010 in SA.SR.No.17631 of 2002 to convert the SA.SR.No.17631 of 2002 into Civil Revision Petition. The said application was allowed by this Court vide order dated 15.11.2010. Accordingly, the present Civil Revision Petition is filed by the petitioner. 3. The petitioner herein is the first defendant in O.S.No.105 of 1996 on the file of the Principal District Munsif, Vellore. The plaintiff in the said suit is the first respondent in this revision. The second defendant in the suit is the second respondent in this revision. For the sake of convenience, the parties shall be referred to as plaintiff and defendants as per the ranking in the suit. 4. The suit was filed by the plaintiff on the basis of Ex.A1 suit promissory note dated 01.02.1993. According to the Plaintiff/first respondent herein, the first defendant/revision petitioner executed Ex.A1 agreeing to repay the loan of Rs.5,000/- with 36% interest. As on the date of suit, towards principal and interest a total sum of Rs.8960/- was due and payable by the revision petitioners. 5. In the written statement filed by the first defendant/ revision petitioner, he denied the execution of the promissory note. According to the first defendant, besides the amount of Rs.5,000/- borrowed on 01.02.1993, he borrowed another sum of Rs.19,900/- from plaintiff on 11.02.1993 and he discharged the entire amount in installments and the payments were recorded in a receipt book. The first defendant further states he paid the entire amount and the payments made were recorded in Ex.B1 issued by the plaintiff. The said Ex.B1 was marked through the DW1. 6. In the course of cross examination, PW1 also admitted that he issued the receipt book Ex.B1 to the first defendant/revision petitioner herein. In Ex.B1 the first entry was made by PW1 and other nine enteres were stated to be made by the wife of PW1. The first defendant stated that he has not borrowed any amount from G.Sundari, who is none other than, the wife of PW1. In Ex.B1 the first entry was made by PW1 and other nine enteres were stated to be made by the wife of PW1. The first defendant stated that he has not borrowed any amount from G.Sundari, who is none other than, the wife of PW1. DW1, further deposed that with regard to interest portion, a sum of Rs.1500/- was deducted from and out of the principle and the first defendant received only a sum of Rs.3,500/- out of Rs.5,000/-. 7. On the basis of the evidence made available, the trial Court had come to the conclusion that the first defendant has discharged his burden on the basis of Ex.B1 receipt book. Further, the trial Court while dismissing the suit found that the failure on the part of the Plaintiff/first respondent herein to produce the books of accounts is fatal to his case. 8. However, the first Appellate Court held that the first defendant/revision petitioner, no where in his evidence, said that he had paid the amount to the wife of plaintiff/first respondent herein. The first defendant, in his evidence says that the clerk employed by plaintiff will receive the amount and put the signature of the wife of plaintiff. On the contrary, in the written statement of the first defendant, he only stated that he made payment to the plaintiff. The plaintiff involved in money lending business and sometime, in his absence, his brothers would receive the payments on his behalf but his wife had never received the payment from the debtors. The PW1 indulged in giving loan to various persons besides being a Partner in Manikandan Finance, however, Ex.A1 was not issued in the name any financial firm, but it was executed in his individual name, that being so, asking the plaintiff to produce the ledger account to discharge his onus would not arises at all. Therefore, the Lower Appellate Court came to the conclusion that the plaintiff has proved his case and set aside the judgment of the trial court. 9. Aggrieved by the order of the Lower Appellate Court in A.S.No.17 of 1996, the petitioner herein preferred by SA.SR.No.17631 of 2002 and the Second Appeal was subsequently converted into Civil Revision Petition vide order of this Court dated 15.11.2010. 10. 9. Aggrieved by the order of the Lower Appellate Court in A.S.No.17 of 1996, the petitioner herein preferred by SA.SR.No.17631 of 2002 and the Second Appeal was subsequently converted into Civil Revision Petition vide order of this Court dated 15.11.2010. 10. The main issues for consideration in this Appeal is as follows:- (1) Whether the findings of the Appellate Court that it is not necessary to produce the books of ledger account by the respondent herein, in order to disprove his case is just and fair? (2) Whether the conclusion arrived by the Appellate Court that DW1 had not discharged his burden under Ex.A1 suit promissory note and Ex.B1 is correct? 11. Point No.1:- The Plaintiff/first respondent herein was doing business of Money Lending both in his individual capacity and in the name of some firm. So, during the course of his business, the plaintiff/first respondent lend a sum of Rs.5,000/- by way of Ex.A1 promissory note and according to him, the said amount was not paid, therefore, he filed the suit. In this connection, he has marked Ex.A1 promissory note alone. PW1 also deposed about the entire transactions and denied the payment of the amount by the petitioner/first defendant. 12. On the other hand, the revision petitioner/first defendant herein denied the entire case of the first respondent/plaintiff. He has admitted the fact that he received a sum of Rs.5,000/- and executed the promissory note. Further, DW1 deposed that at the time of receipt of the money, he received only a sum of Rs.3,500/- and a sum of Rs.1,500/- was deducted towards interest paid by the first respondent/plaintiff. 13. The learned counsel appearing for the revision petitioner/first defendant advanced his argument stating that the petitioner/first defendant paid the entire amount and the trial Court rightly dismissed the suit stating that entire amount was discharged. Further, he has stated that to prove the said repayment Ex.B1 receipt book was marked by the first defendant. Apart from the promissory note that the first respondent/plaintiff did not produce any other document particularly when the defendant raised the plea that amount was discharged through Ex.B1. When Ex.B1 was marked it is the duty of the plaintiff to examine his wife who is said to have received money from the first defendant and made certain entries. Further, in the cross examination it was stated that Ex.B1 contain the signature of the wife of the plaintiff. When Ex.B1 was marked it is the duty of the plaintiff to examine his wife who is said to have received money from the first defendant and made certain entries. Further, in the cross examination it was stated that Ex.B1 contain the signature of the wife of the plaintiff. Admittedly, there is no transaction between the revision petitioner and wife of the first respondent. Since the plaintiff was doing the business of lending in different ways, collection of the amount was made in such a way that whenever the borrower repays the amount, it will be received by his wife in his absence. Further, the revision petitioner/first defendant has produce Ex.B1 to substantiate his defence, but the plaintiff/first respondent did not produce any other document like income tax returns, books of accounts etc., 14. On the other hand, the learned counsel for the first respondent/plaintiff submitted that the payment was not received by the first respondent/plaintiff but it was alleged that the amount was paid to his wife. It is for the revision petitioner to examine his wife to show that the amount was discharged, but he failed to do so. Therefore, the petitioner is liable to make the payment. Hence, according to the counsel for the first respondent, the appeal was rightly allowed by the Lower Appellate Court by setting aside the judgment and decree passed by the trial Court. 15. Now, this Court has to decide as to whether the findings of the Lower Appellate Court that it is not necessary to produce the books of accounts to verify whether the entire amount was discharged by the revision petitioner/first defendant to the first respondent/plaintiff is correct. 16. On a perusal of the records, evidences, the order passed by the trial Court, the Judgment of Lower Appellate Court and arguments made by both the learned counsel for the petitioner and the respondent, that the plaintiff/first respondent being a business man was in the habit of lending money to borrowers not only in his personal capacity, but in the name different concern, while so, it is the duty of the plaintiff/first respondent to produce the statement of accounts, ledger, etc., both in his individual capacity or otherwise to prove his suit claim. In the present case, the statement of accounts is necessary because, the borrower/revision petitioner/first defendant states that he discharged the amount. However, it was denied by the plaintiff. In the present case, the statement of accounts is necessary because, the borrower/revision petitioner/first defendant states that he discharged the amount. However, it was denied by the plaintiff. In order to prove whether the amount was discharged or not, it is very important to submit the account. Further without even submitting the account the plaintiff/first respondent cannot prove the suit claim. On the contrary, he revision petitioner/first defendant produced DW1 receipt book, wherein, it was stated that the entire amount was received by the first respondent/plaintiff and the amount was received by his wife. Under these circumstances, it is the duty of the first respondent/Plaintiff to produce the statement of accounts through PW1. The Lower Appellate Court finding that the plaintiff last the money in his individual capacity and therefore, plaintiff need not maintain the books of accounts is unacceptable, who ever doing business either individual or otherwise, it is the duty of that person to maintain the books of accounts. Therefore, the findings of the Lower Appellate Court that it is not necessary to produce the ledger account by the first respondent/plaintiff is not correct and the same is set aside. 17. Point No.2: As stated above, it is an admitted fact that the promissory note was executed by the revision petitioner/first defendant and in turn the first respondent/plaintiff issued a receipt book which was marked as Ex.B1 in which the first entry was made by plaintiff/first respondent. However, subsequent payments were received by his wife and PW1 did not deny the fact that the said amount was not received by his wife. Further he has not denied the signature of his wife in Ex.B1. Therefore, the said amount of Rs.5,000/- was paid to the plaintiff's wife and the same was entered in the book issued by the plaintiff and the first defendant proved that he discharged his liabilities under Ex.A1 promissory note. Hence, this Court come to the conclusion that the petitioner herein paid the entire amount and no amount is liable to be paid to the first respondent/plaintiff. 18. Therefore, the Civil Revision Petition is allowed setting aside the Judgment passed by the Lower Appellate Court and uphold the judgment of the trial Court. No costs. Consequently, connected Miscellaneous Petition is closed.