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2018 DIGILAW 359 (RAJ)

Hukmaichand v. Lrs. of Nana Lal Sh. Dharam Chand

2018-01-30

DINESH MEHTA

body2018
JUDGMENT : Dinesh Mehta, J. 1. The present appeal under Section 96 of the code of Civil Procedure has been preferred by the appellant-defendant, challenging the judgment and decree dated 12.12.1989 whereby the suit filed by the respondent-plaintiff has been decreed. 2. The facts relevant and necessary to the present appeal are that the plaintiff-respondent filed a suit for recovery of money under Order XXXVII Rule 1 of the Code of Civil Procedure on 21.07.1986 against the defendant-appellant, inter alia averring that the defendant had taken a loan of Rs. 22,000/- @ 12% interest per annum from him on 21.07.1983 for household and other sundry expenses. It has been the case of the plaintiffs that despite repeated requests by him, the defendant did not repay the loan. Thereafter, the plaintiff sent a notice dated 08.07.1986 demanding the loan amount and interest but still did not receive any amount from the defendant, which constrained him to file the aforesaid suit for the recovery of Rs. 29,920/-, being the principal amount and the interest accrued thereupon. 3. The defendant, in his written statement denied having taken any amount from the plaintiff or executing any promissory note in his favour. He averred that any such promissory note, if in existence, is a result of the plaintiff's deceitful act whereby he took the defendant's signatures on blank sheets of paper, when they contracted with each other for the sale of a piece of land, during which the plaintiff had later got a promissory note inscribed on it. He also objected to the very maintainability of the suit, while contending that since he was an agriculturist, the dispute at hand could be adjudicated only by the Debt Relief Court and the Civil Court did not have the jurisdiction to do the same. 4. The learned Trial Court framed a number of issues including issue no. 3, touching upon the jurisdictional aspect, as to whether the Debt Relief Court has the requisite jurisdiction to adjudicate the dispute at hand. The captioned issue No.3, as framed by the learned Trial Court is reproduced below: (Hindi) "3- vk;k izfroknh O;olk; ls dkrdkj gksus ds dkj.k ;g nkok _.k fuokj.k U;k;ky; ds lquokbZ {ks=kf/kdkj dk gS \" 5. 3, touching upon the jurisdictional aspect, as to whether the Debt Relief Court has the requisite jurisdiction to adjudicate the dispute at hand. The captioned issue No.3, as framed by the learned Trial Court is reproduced below: (Hindi) "3- vk;k izfroknh O;olk; ls dkrdkj gksus ds dkj.k ;g nkok _.k fuokj.k U;k;ky; ds lquokbZ {ks=kf/kdkj dk gS \" 5. On behalf of the plaintiff, he himself (PW-1), Maanmal (PW- 2) and Chaandmal (PW-3) appeared in the witness box, and exhibited/led in evidence the subject promissory note (Exhibit-1), the appended receipt (Exhibit-2), the notice dated 08.07.1986 sent by the plaintiff (Exhibit-3), postal receipt (Exhibit-4) and AD Receipt (Exhibit-5) and leave to defend dated 13.03.1986 (Exhibit- 6). 6. On behalf of the defendants, he himself (DW-1), Prahlad Singh (DW-2) and Dhula (DW-3) appeared in the witness box, and a copy of the Jamabandi (A-1) was produced in evidence. 7. The learned counsel for the appellant has mainly assailed the finding of the trial court in this regard, as it has after hearing both the parties, decided the said issue in favour of the plaintiff. 8. Hence, before adverting to the issues pertaining to the merits of the case and the validity and the propriety of the order of the learned Trial Court qua these issues, would be appropriate to examine issue no. 3 first, which relates to the jurisdiction of the Debt Relief Court to adjudicate the present dispute. 9. Mr. Nitesh Mathur, learned counsel for the defendant-appellant, firstly and rather wholly confined his submissions on the issue of jurisdiction, submitted that since the respondent-plaintiff was held to be a money lender by the Trial Court, the proceedings in the court below could continue and thus cannot be sustained by virtue of Section 47 of the Rajasthan Money Lenders Act, 1963 as the same expressly bars proceedings in a civil court. He further submitted that it was the duty of the plaintiff-respondent to initiate proceedings before the Debt Relief Court, as the jurisdiction of the Civil Court was expressly excluded. He argued that it is only the debtor who is obligated to initiate proceedings under Section 6 of the Rajasthan Debt Relief Court Act ("the Act"). Under sub-section (2) of Section 6 of the Act, such application may also be filed by a creditor or his surety. He argued that it is only the debtor who is obligated to initiate proceedings under Section 6 of the Rajasthan Debt Relief Court Act ("the Act"). Under sub-section (2) of Section 6 of the Act, such application may also be filed by a creditor or his surety. Thus, it was incumbent upon the plaintiff - respondent to move an application before the Debt Relief Court. To support his contention, learned counsel relied on the judgment of this court rendered in Inder Chand v. Mukna, 1996 (2) WLC 493. 10. He added that the learned trial court has wrongly decided issue no. 3 against the appellant, as perusal of Section 2 (a) of the Act, makes it clear that both planting and horticulture are included in the definition of "agriculture." He submitted that the testimony of defendant's witnesses established that the appellant was earning his income from several modes like planting and sale of papaya, sale of cow milk etc. for which his status as an agriculturist could be disputed. The finding of the learned trial court that the appellant is an agriculturist and that he did come under the purview of the Act is perverse and bad in law, he argued. Lastly, learned counsel urged that it was the duty of the trial court itself, having framed an issue on the jurisdiction of Debt Relief Court, to stay the proceedings and direct the respondent to file an application before the Debt Relief Court. 11. As for the other issues, learned counsel submitted that the alleged promissory note is nothing but a fabricated document given the facade of a legally enforceable instrument, by the plaintiff, while dubiously obtaining signature of the defendant on blank sheets of paper. He asserted that the plaintiff has failed to prove that the defendant had taken any money from him and the suit below was filed out of enmity or ill-will born out of a land dispute between them. 12. Per contra, Mr. Gajendra Mehta, learned counsel for the plaintiff-respondent, submitted that as per Section 5 of the Act of 1957, the proceedings in a suit or an insolvency petition, can be stayed only if the court is satisfied upon presentation of an affidavit or otherwise that an application to the Debt Relief Court under Section 6 or 6A has been made and the same has been admitted and is pending. The satisfaction of the civil court is predicated on presentation of affidavit or 'otherwise,' under clause (ii) of sub-section (1) of Section 6. Learned counsel contended that the word 'otherwise' may include other material or oral submission also, but neither any affidavit was filed, nor any statement was made before the trial court by the defendant, on the basis of which, the Court could stay the suit proceedings. He further contended that although under Section 6 of the Act of 1957, the creditor or his surety can also file an application before the Debt Relief Court, but such stipulation does mandatorily require him to approach the Debt Relief Court and nor does the same altogether oust the jurisdiction of the civil court. 13. As far as the question of the status of the debtor is concerned; learned counsel pointed out that the trial court, has observed that the appellant having 5 hectares of land grew a variety of crops namely papaya from the sale proceeds whereof, he earned a meager amount of about Rs. 2,000/- per annum, and earned small amount of income from the sale of cattle milk, ghee and other sources, which were sufficient to run a family even during the relevant period, hence, it cannot be inferred that his livelihood was dependent upon agricultural income alone, so as to bring him within the ambit of 'agriculturist,' as defined in Section 2 (b) of the Act of 1957. 14. Coming to the nature of the occupation of the defendant as to whether he is an agriculturist or not, it would be apt to first examine Section 2 (b) of the Act of 1957, which defines the term 'agriculturist' as a person who earns his livelihood wholly or mainly from agriculture. 'Agriculture' as defined under Section 2 (a) includes the raising of annual or periodical crops and garden produce, the planting and upkeep of orchards and the breeding of cattle, camels, sheep or goats. The above Section is reproduced below:- 2. 'Agriculture' as defined under Section 2 (a) includes the raising of annual or periodical crops and garden produce, the planting and upkeep of orchards and the breeding of cattle, camels, sheep or goats. The above Section is reproduced below:- 2. Definitions.- In this Act, unless the subject or context otherwise requires,- (a) "agriculture" includes,- (i) the raising of annual or periodical crops and garden produce, (ii) horticulture, (iii) the planting and upkeep of orchards, (iv) the reserving of land for fodder grazing or thatching grass; and (v) the breeding of cattle, camels, sheep or goats; (b) "agriculturist" means a person who earns his livelihood wholly or mainly from (i) agriculture, or (ii) rent from agricultural land, in case he belongs to any of the categories of persons mentioned in clauses (a) to (h) of sub-section (1) of section 46 of the Rajasthan Tenancy Act, 1955 (Rajasthan Act 3 of 1955),-and includes a person who ordinarily engages in agricultural labour or who works as an agricultural artisan; 15. As observed by the learned Trial Court, the defendant - appellant earned around Rs. 2,000/- per annum from the sale of papayas and Rs. 25,000/- from the crops he cultivated in his field, to mention proceeds from the sale of milk. What is important to note here is, the fact that this was during the 1980s when the aforesaid income was substantial, and in the absence of any material on record indicating that appellant earned significant income from any other source, which burden lay upon the plaintiff, this Court has no hesitation in holding that the appellant was an 'agriculturist' squarely falling within the ambit of Section 2(b), as his livelihood was 'mainly' dependent on agriculture and the learned Trial Court has fallen into an obvious error, in considering him 'agriculturist.' 16. He further added that Section 47 of the Rajasthan Money Lenders Act does come in way of creditor in instituting proceedings under the Code of Civil Procedure, as the same is only applicable to proceedings instituted under the Act of 1963. 17. Learned counsel for the respondent argued that the documentary and oral evidence is sufficient to establish that the defendant had executed a promissory note in favour of the plaintiff and despite repeated requests and the receipt of notice dated 08.07.1986, defendant-appellant chose to pay the amount due, for which the decree has been issued. 18. 17. Learned counsel for the respondent argued that the documentary and oral evidence is sufficient to establish that the defendant had executed a promissory note in favour of the plaintiff and despite repeated requests and the receipt of notice dated 08.07.1986, defendant-appellant chose to pay the amount due, for which the decree has been issued. 18. In considered view of this Court, the Act of 1957 has been incorporated to safeguard the interest of the farmers and the same is aimed at providing relief to agriculturists, entrapped in the clutches of debt and exorbitant interest rates by the money lenders. 19. It will be out of context to be reminded of the provisions contained in Section 47 of the Rajasthan Money Lenders Act, 1963, which runs as under:- "47. Provisions of Rajasthan Act 28 of 1957 saved.-Nothing in the Act shall affect any of the provisions of the Rajasthan Relief of Agricultural Indebtedness Act, 1957 (Rajasthan Act 28 of 1957), and no court shall entertain or proceed under this Act with any suit or proceeding relating to any loan in respect of which proceedings can be taken under the said Act." 20. Section 47 of the Act of 1963, concedes to the provisions of the Act of 1957, and provides that no court shall entertain or proceed under this Act, with any suit or proceeding relating to any loan in respect of which proceedings can be taken under the Act of 1957. However the aforesaid provision applies only to those proceedings which arise under the Act of 1963. The use of the phrase "under this Act" clearly evinces that the bar on the civil court is limited only in respect of the proceedings instituted under the Rajasthan Money Lenders Act, 1963. It does bar proceedings instituted under the Code of Civil Procedure. 21. As far as the contention of the learned counsel for the petitioner that the creditor i.e. in this case, the plaintiff ought to have himself applied before the Civil Court under Section 6 of the Act of 1957 is concerned, before dealing with that, it would be profitable to comb through the said provision, which reads thus:- "6. 21. As far as the contention of the learned counsel for the petitioner that the creditor i.e. in this case, the plaintiff ought to have himself applied before the Civil Court under Section 6 of the Act of 1957 is concerned, before dealing with that, it would be profitable to comb through the said provision, which reads thus:- "6. Application to Debt Relief Court.- (1) Any debtor who is liable for debts individually or jointly with another person, may file an application before the Debt Relief Court having jurisdiction in the area in which he ordinarily resides or earns his livelihood praying for the determination of his debts. (2) Such an application praying for the determination of the debts, outstanding against a debtor, may also be filed by his creditor or his surety, whether such debtor is liable for such debts individually or jointly with another person. (3) .... ... ... (4) ... ... ..." 22. A bare look at the above provision reveals that the same is only an enabling provision and does require/mandate the creditor or his surety to approach the Debt Relief Court. Directory nature of this provision is explicit from the use of the word "may" in sub-Section 2 of Section 6. As such in the circumstance, where the creditor or his surety chosen to approach the Debt Relief Court, the same can adversely affect the proceedings in the Civil Court, in any manner. The judgment relied upon by the learned counsel for the appellant, namely Inder Chand v. Mukna is also of little assistance to him, as this court in para 19 of the said judgment too held that such application praying for determination of debts outstanding against the debtor "can" also be filed by a creditor or his surety for recovery of debts as contemplated under Sub-Section 2 of Section 6; the said judgment does rule that the creditor or his surety has to approach the Debt Relief Court. The avowed para of the said judgment, on which the learned counsel for the appellant has so heavily relied, is reproduced below: "20. The avowed para of the said judgment, on which the learned counsel for the appellant has so heavily relied, is reproduced below: "20. Although the aforesaid arguments are attractive but fallacious and it is correct to argue that only debtor who is liable for debts individually or jointly with another person, may file an application before the Debt Relief Court praying for determination of his debts under Sub-section (1) of Section 6 of Act No. 28 of 1957. Such application praying for determination of debts outstanding against the debtor can also be filed by a creditor or his surety for recovery of his debts as contemplated under Sub-section (2) of Section 6 of the Act No. 28 of 1957. Similar question came up for consideration before the learned Single Judge of this Court in the case of Hem Raj v. Heera Lal reported in 1986 RLW 595 where the learned Single Judge directed return of plaint for presentation before the Debt Relief Court. I respectfully concur with the view taken by the learned Single Judge in the case of Hem Raj (supra) and arrived at a conclusion that the learned lower appellate Court has rightly directed return of plaint for presentation before the Debt Relief Court. The judgment impugned is eminently just and proper and does require interference by this Court." 23. In light of the analysis aforesaid, this court holds that the said suit is maintainable and the trial court was correct in deciding this issue in favour of the plaintiff-respondent, albeit with incorrect reasoning. 24. Coming to the other issues for consideration, the learned Trial Court held issues no. 1 & 2 in favour of the plaintiff-respondent. Upon perusal and examination of the evidence, namely the promissory note and the appended receipt (Exhibit-1 & 2 respectively) as well as testimony of the witnesses, especially Nanalal (PW-1), Maanmal (PW-2) and Bhagwanlal (DW-1), it transpires that the argument of the defendant-appellant that his signature were obtained on blank sheets of paper and then a promissory note was inscribed on it does hold much water. A bird's eye view of the document shows that the signature of defendant are in perfect alignment with the place earmarked for the signature and that otherwise also there is no trace of any forgery nor the defendant could establish his allegations of concoction of documents or untoward & clandestine drafting by the plaintiff. A bird's eye view of the document shows that the signature of defendant are in perfect alignment with the place earmarked for the signature and that otherwise also there is no trace of any forgery nor the defendant could establish his allegations of concoction of documents or untoward & clandestine drafting by the plaintiff. Besides, PW-2 who signed as a witness on the said promissory note also testified and substantiated the factum of its execution by both the parties. If the testimony of DW-1 i.e. Bhagwanlal is taken into account, it does inspire much confidence as signing so many blank sheets, such that a promissory note, leave to defend, receipt etc is easier said than believed. 25. A bare look at the Promissory Note (Exhibit-1) shows that it is a pre-printed document and the defendant has signed the same over Revenue Stamp at two places, hence the stance of the defendant that he had signed on some blank papers which have been used to manufacture these documents falls flat on the ground. Also, the notice dated 08.07.1986 sent by the plaintiff (Exhibit-3), postal receipt (Exhibit-4) and AD Receipt (Exhibit-5), complemented by the conduct of the defendant, who never cared to respond to the notice, despite admitting to have received the same, go long way to conclude that the defendant has taken a false plea and learned Trial Court has committed no error in deciding issues no. 1 & 2 in favour of the plaintiff. 26. In view of the discussion foregoing, this court is of the firm view that there is no error, of facts or law in the judgment & decree under consideration. The impugned order is upheld whereas the appeal is rejected.