Research › Search › Judgment

Himachal Pradesh High Court · body

2019 DIGILAW 1246 (HP)

Brij Bala v. Surender Kumar

2019-08-29

TARLOK SINGH CHAUHAN

body2019
JUDGMENT : Tarlok Singh Chauhan, J. The defendant is the appellant, who after having lost before both the learned Courts below, has filed the instant appeal. The parties shall be referred to as the 'plaintiff' and the 'defendant'. 2. The plaintiff/respondent filed a suit for recovery of Rs.1,00,000/- on the allegation that the defendant/appellant on 12.10.2004 had borrowed the aforesaid amount in the presence of the witnesses in order to fulfill her necessities and financial commitment. It was further averred that the defendant agreed to repay back the aforesaid amount of Rs.1,00,000/- to the plaintiff and also executed a promissory note to this effect. However, when the plaintiff demanded the amount, the defendant refused, constraining him to issue a legal notice to her and despite receipt of the notice, the defendant failed to pay the amount. Hence, the suit. 3. The defendant contested the suit by filing written statement wherein preliminary objection regarding maintainability was raised. On merits, it was contended that the defendant had not executed any pronote or receipt of the loan amount of Rs.1,00,000/- and even if the pronote or receipt is produced on the record, the same is an outcome of fraud and misrepresentation of facts. 4. From the pleadings of the parties, the learned trial Court on 13.9.2005 framed the following issues: 1. Whether the defendant has borrowed a sum of Rs.1,00,000/- (Rs. One Lac) from the plaintiff on 12.10.2004 and executed a pro-note and receipt? OPP 2. Whether the defendant failed to make repayment of sum borrowed as per agreed? OPP 3. Whether the plaintiff is entitled for the recovery of Rs.1,00,000/- (Rs. One Lac) alongwith interest at the rate of 12% per annum from the defendant? OPP 4. Whether the suit is not legally maintainable? OPD 5. Relief. 5. After recording the evidence led by the parties and evaluating the same, the learned trial Court decreed the suit of the plaintiff and the appeal filed against the same was also dismissed by the learned first Appellate Court vide its judgment and decree dated 30.8.2008, constraining the defendant to file the instant appeal. 6. On 26.10.2009, the appeal was admitted on the following substantial question of law: "1. Whether the findings of the learned trial Court as well as first Appellate Court are result of complete misreading and misinterpretation of the evidence and material on record and against settled position of law?" 7. 6. On 26.10.2009, the appeal was admitted on the following substantial question of law: "1. Whether the findings of the learned trial Court as well as first Appellate Court are result of complete misreading and misinterpretation of the evidence and material on record and against settled position of law?" 7. I have heard learned counsel for the parties and have gone through the material placed on record. 8. Mr. J.R. Poswal, learned counsel for the appellant has vehemently argued that the findings recorded by the learned Courts below are perverse inasmuch as both the learned Courts below have not taken into consideration the following points: (i) That the plaintiff being in the business of money lending without licence could not have filed a suit for recovery of the amount as the same is not maintainable in view of the provisions of the Himachal Pradesh Registration of Money Lenders' Act, 1976. (ii) That the pro-note Ex. P-1 cannot be held to be proved and therefore no reliance can be placed on the pro-note as it is written in Hindi, whereas the word 'NIL' has been written in English. (iii) That the pro-note otherwise has not been stamped in accordance with Schedule 1 of the Indian Stamp Act. (iv) That the Books of Accounts have not been produced by the plaintiff under Section 34 of the Indian Registration Act and therefore an adverse inference was required to be drawn by the learned Courts below and consequently, the suit ought to have been dismissed. 9. On the other hand, Mr. Rakesh Thakur, learned counsel appearing for the respondent would contend that no fault can be found with the judgments and decrees passed by the learned Courts below, more particularly, when the same are based on correct appreciation of the pleadings as also the evidence on record. It is further contended that since none of the questions as raised before this Court in the second appeal was ever raised before the trial Court or before the first Appellate Court, therefore, the same cannot be raised for the first time before this Court in second appeal. 10. Admittedly, the questions urged before this Court have never been raised before the trial Court or before the first Appellate Court and cannot, therefore, be permitted to be raised for the first time before this Court in second appeal. 10. Admittedly, the questions urged before this Court have never been raised before the trial Court or before the first Appellate Court and cannot, therefore, be permitted to be raised for the first time before this Court in second appeal. In taking this view, I am fortified by the judgment passed by four Judge Bench of the Hon'ble Supreme Court in Banarsi Dass and others vs. Kansi Ram and others, AIR 1963 SC 1165 . That apart, even if all these points as raised by the appellant are considered, even then, there is no merit in the same. 11. Adverting to the first point, it is not the pleaded case of the defendant that the plaintiff has indulged in money lending and, therefore, cannot recover the amount in question in view of the bar imposed under the Himachal Pradesh Registration of Money Lenders' Act, 1976. 12. As regards the second point regarding the pro-note being in Hindi and the word 'NIL' written in English therein that by itself cannot cast any shadow of suspicion over the said document. The document in fact is printed one (in Devnagari) and it is only blank spaces therein that have been filled in by the parties. 13. As regards the pro-note not being stamped in accordance with Schedule-1, as is canvassed by learned counsel for the appellant, the pro-note falls under Schedule 1 and has been duly stamped in terms of entry No.49 which relates to pro-note. 14. Coming to the last averments of the appellant that the books of account have not been produced by the plaintiff as required under Section 34 of the Evidence Act, I again do not find any merit in the said contention. Firstly, the "book of accounts" as referred to in this section means books in which merchants, traders or businessmen generally keep their accounts i.e. statements of debits and credits or receipts of any payments. Since there is no evidence on record that the plaintiff was in fact indulged in the business of money lending then obviously, the plaintiff was not required to maintain the books of accounts and thereafter prove the same in accordance with the requirement of Section 34 of the Evidence Act. Therefore, non-production of these books, is of no consequence. 15. Since there is no evidence on record that the plaintiff was in fact indulged in the business of money lending then obviously, the plaintiff was not required to maintain the books of accounts and thereafter prove the same in accordance with the requirement of Section 34 of the Evidence Act. Therefore, non-production of these books, is of no consequence. 15. It is more than settled that it is not in all cases that non-production of account-books by itself may be pressed into service as a factor to disbelieve a litigant's case and characterize his conduct as fraudulent. Each case has to be decided on its own merits. Otherwise also, it is normal that account-books kept in the regular course of business of a tradesman is merely a compilation of all the details of his dealings from day-to-day and is practically a summary of such transactions written up in bills, vouchers, anamath chits etc. Therefore, the account-books by themselves do not stand on any better footing than a bill or a voucher issued by the plaintiff in the regular course of business. 16. Here in the instant case, the plaintiff is armed with the pronote acknowledging the liability to pay a sum of Rs.1,00,000/- by the defendant in favour of the plaintiff and the execution of such pronote has duly been proved on record and as a matter of fact, has not been seriously disputed even by the defendant. Therefore, the provisions of Section 34 of the Evidence Act, have no applicability to the facts of the instant case. The substantial question of law is accordingly answered. 17. In view of the aforesaid discussion, there is no merit in this appeal and the same is accordingly dismissed, so also the pending applications, if any, leaving the parties to bear their own costs.