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2020 DIGILAW 360 (GAU)

Toko Kach v. Techi Talita

2020-03-09

PARTHIVJYOTI SAIKIA

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JUDGMENT Parthivjyoti Saikia, J. - This is a first appeal challenging the judgment dated 20.09.2017, passed by the Civil Judge (Senior) Division, Capital Complex, Yupia, in Title Suit No. 22/2015. By the impugned judgment, the Suit of the appellant was dismissed. wxyz Case of the appellant zyxw 2. The appellant filed a Suit for specific purpose of an agreement, dated 04.09.2013. Both the appellant and the respondent were known to each other. In the first week of September, 2013, the respondent requested the appellant to pay her Rs. 27,60,000/- as a loan. The respondent proposed that her residential plot of land measuring 1005 Sq. Mtrs. with structure standing thereon would be the security for repayment of the loan amount. Accordingly, the appellant paid the money on 04.09.2013 and on that day, the respondent issued a money receipt. Thereafter, on the same day, the appellant and the respondent had an agreement to the effect that upon the entire amount of Rs. 27,60,000/-, the respondent shall pay an interest @ 5% per month within the month of November, 2013. Both the sides also agreed that if the respondent had failed to repay the said loan amount then the aforesaid agreement dated 04.09.2013 shall be deemed to be a Sale Deed and the appellant would be entitled to have absolute ownership or other rights over the property of the respondent and in that case, the loan amount shall be considered to be the consideration amount. 3. Thereafter, the respondent failed to repay the money. The appellant then requested the respondent to execute the Sale Deed in respect of her properties in his favour but the respondent declined to do that. She requested the appellant to give her some more time to repay the money. The appellant also agreed to that. But till filing of the Suit, the respondent did not pay the money to the appellant. 4. The appellant states that he is ready and willing to perform his part of the contract. Therefore, the appellant served a notice upon the respondent on 12.05.2015 asking her to complete her part of the contract. wxyz Case of the respondent zyxw 5. The respondent contested the case of the appellant by filing a Written Statement. She claimed that the agreement dated 04.09.2013 is hit under Sections 23 & 24 of the Indian Contract Act, 1872. Therefore, the appellant served a notice upon the respondent on 12.05.2015 asking her to complete her part of the contract. wxyz Case of the respondent zyxw 5. The respondent contested the case of the appellant by filing a Written Statement. She claimed that the agreement dated 04.09.2013 is hit under Sections 23 & 24 of the Indian Contract Act, 1872. She even denied having entered into any agreement on 04.09.2013 with the appellant. She also denied having taken money from the appellant. The respondent further claimed that the agreement dated 04.09.2013 is also hit by provisions of Section 58 of Transfer of Property Act, 1882. She claimed that it is a void agreement and therefore, it cannot be enforced. 6. The respondent, however, admitted that she had taken a loan of Rs. 7,00,000/- only from the appellant on 04.08.2012 @ 10% interest per month without executing any agreement except for issuing a money receipt. She also admitted that after taking the aforesaid loan, she again took loan of Rs. 5,00,000/- from Den Aang Fund, Naharlagun on 09.08.2012 and in that case, the appellant stood as a guarantor for the said loan. 7. On the basis of the pleadings of the parties, the Trial Court framed the following issues - wxyz 1) Whether the suit is maintainable in its present form and context? zyxw wxyz 2) Whether the defendant Smt. Techi Talita took a loan of Rs. 27,60,000/- from the Plaintiff Toko Kach and entered with an agreement dated 04.09.2013 and executed a money receipt to that effect? zyxw wxyz 3) Whether the agreement dated 04.09.2013 was executed between the parties on mutual agreement? zyxw wxyz 4) Whether the alienation of property by mere agreement dated 04.09.2013 without registering the mortgage deed is permissible under Section 58 of the Transfer of Property Act? zyxw wxyz 5) Whether the plaintiff is entitled to a decree of part-performance of the agreement dated 04.09.2013? zyxw wxyz 6) To what reliefs or relief the parties are entitled to? zyxw 8. During the Trial of the case, the appellant examined 3 (three) witnesses and the respondent examined 2 (two) witnesses. On the basis of the evidence available in the record, the Trial Court passed the impugned judgment. wxyz Point for determination zyxw 9. The only point for determination is this appeal is as to whether the impugned judgment is sustainable in law. On the basis of the evidence available in the record, the Trial Court passed the impugned judgment. wxyz Point for determination zyxw 9. The only point for determination is this appeal is as to whether the impugned judgment is sustainable in law. wxyz Decisions and reasons thereof zyxw 10. I have heard Mr. R. Sonar, learned counsel appearing for the appellant. I have also perused the materials available on record. 11. Mr. Sonar, learned counsel, has submitted that the Trial Court has erred by not deciding the issue Nos. 2, 3 & 6. 12. For ready reference, the relevant portion of the impugned judgment is quoted as under - wxyz With the issue no. 1, 4 & 5 having answered against Plaintiff and on finding that suit is not maintainable and no relief can be granted from court, other issues which are based on facts is not discussed or settled, as same would have no bearing in outcome of the suit. zyxw 13. Here at this stage, Order 20 Rule 5 of the CPC is relevant, which is reads as under - wxyz 5. Court to state its decision on each issue. - In suits in which issues have been framed, the Court shall state its finding or decision, with the reasons therefor, upon each separate issue, unless the finding upon any one or more of the issue is sufficient for the decision of the suit. zyxw 14. In the case in hand, the Trial Court has not given any reason as to why the issue Nos. 2, 3 & 6 were not decided. Therefore, the contention of the learned counsel, Mr. Sonar, has force in it. I am of the considered opinion that this is a fit case for remand. 15. Accordingly, the appeal is allowed. The impugned judgment dated 20.09.2017, passed by the Civil Judge (Senior) Division, Capital Complex, Yupia, in Title Suit No. 22/2015, is set aside. The case is remanded to the Trial Court for passing a fresh judgment on all issues, albeit after hearing fresh arguments.