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2021 DIGILAW 691 (GAU)

Lalzawngliani v. F. Lalhuthangi

2021-11-12

NELSON SAILO

body2021
JUDGMENT : Nelson Sailo, J. 1. Heard Mr. Zoramchhana, learned counsel for the appellants and Mr. F. Lalengliana, learned counsel for the respondent. This is an appeal directed against the Judgment & Order dated 23.06.2015 passed by the Senior Civil Judge, Aizawl in Money Suit No. 131/2011 whereby, the Money Suit was allowed and the counter claim of the defendants was dismissed. Aggrieved, the defendants have filed the present appeal. For convenience, the defendants shall be referred to as appellants/defendants and the plaintiff as respondent/plaintiff hereafter. 2. Brief facts of the case as projected by the respondent/plaintiff before the Trial Court is that the appellants/defendants are husband and wife and the appellant No. 1/defendant No. 1 borrowed a sum of Rs. 5 lakhs, 3 lakhs and another 3 lakhs on 04.08.2008, 07.08.2008 and 13.08.2008 respectively i.e., Rs. 11 lakhs in all, from the respondent/plaintiff with a promise to return with the agreed interest. Though the amount was borrowed in the name of appellant No. 1/defendant No. 1, the amount was utilized jointly by both the appellants/defendants. It is the further case of the respondent/plaintiff that the appellant/defendant No. 1 on 21.07.2011 acknowledged her liability of paying Rs. 11 lakhs to the plaintiff/respondent in writing. The acknowledgment also stated that the amount due was taken with the knowledge and permission of the appellant No. 2/defendant No. 2. The respondent/plaintiff therefore amongst others, prayed for a decree to be passed in her favour, directing the appellants/defendants to repay her the borrowed sum of Rs. 11 lakhs with interest at the rate of 20% per annum calculated from the month of August 2008 till final payment. 3. In response to the plaint, the defendants filed their written statement raising preliminary objection that the Suit was bad for mis-joinder/non-joinder of necessary parties and was also barred under Order II Rule 2 of the Code of the Civil Procedure, 1908 (CPC) as the Suit was based on the same cause of action on which a previous suit (Civil Suit No. 92 of 2011) was filed before the same Court. On merit, the appellants/defendants denied having borrowed the money from the plaintiff/respondent and according to them it was in fact, one Smt. Zothanpuii, W/o R. Lalrinfela, Venghnuai, Aizawl whom the appellant No. 1/defendant No. 1 introduced to the respondent/plaintiff who had borrowed the money from the respondent/plaintiff. On merit, the appellants/defendants denied having borrowed the money from the plaintiff/respondent and according to them it was in fact, one Smt. Zothanpuii, W/o R. Lalrinfela, Venghnuai, Aizawl whom the appellant No. 1/defendant No. 1 introduced to the respondent/plaintiff who had borrowed the money from the respondent/plaintiff. Smt. Zothanpuii not only borrowed money from the respondent/plaintiff but also from 17 other persons, which added up to Rs. 92,75,000/-. In order to get back the aforesaid amount, the appellant No. 1/defendant No. 1 on behalf of all the 18 persons including the plaintiff, filed Civil Suit No. 92/2011 and that the present respondent/plaintiff was also one of the plaintiffs in the said Civil Suit. The appellants/defendants therefore made a counter claim for dismissal of the Suit for non-joinder of necessary party and also because the Suit was barred by the provision of Order II Rule 2 CPC. The defendants also prayed for a decree to the effect that the said Smt. Zothanpuii had cheated the appellants/defendants, the respondent/plaintiff and many others and therefore, she should be directed to be repay Rs. 92,75,000/- with interest at the rate of 9% per annum and also for a decree to the effect that the appellants/defendants are not liable to pay the sum of Rs. 11 lakhs to the respondent/plaintiff. The appellants/defendants also prayed for a decree for a direction to the respondent/plaintiff to pay adequate compensation amount to Rs. 15 lakhs to the appellants/defendants for cheating, suffering and irreparable loss etc. In response to the counter claim, the respondent/plaintiff also filed her written statement reiterating her claim made in the Money Suit. 4. On the basis of the pleadings of the rival parties, the Trial Court framed the following issues:- "(i) Whether the suit is maintainable or not? (ii) Whether the suit is bad for non-joinder of necessary parties or not? (iii) Whether the counter claim filed by the defendants has any merit and maintainable or not? (iv) Whether the plaintiff is entitled to the relief claim or not, If so, to what extend? (v) Whether the defendants are entitled to the relief claimed in their counter claim or not. If so, to what extend?" 5. In order to establish her case, the respondent/plaintiff examined 2 (two) witnesses, viz; herself and one Smt. Zothantluangi. As for the appellants/defendants, they examined 4 (four) witnesses in their defence viz; they themselves, Sh. Chhingpuia and Smt. Zothanpuii. (v) Whether the defendants are entitled to the relief claimed in their counter claim or not. If so, to what extend?" 5. In order to establish her case, the respondent/plaintiff examined 2 (two) witnesses, viz; herself and one Smt. Zothantluangi. As for the appellants/defendants, they examined 4 (four) witnesses in their defence viz; they themselves, Sh. Chhingpuia and Smt. Zothanpuii. Consequently, the Trial Court vide Judgment & Order dated 23.06.2015 allowed the Money Suit and dismissed the counter claim of the defendants. 6. Mr. Zoramchhana, learned counsel appearing for the appellants referring to the written statement submitted by the defendants submits that it was Smt. Zothanpuii, who had borrowed the money from the respondent/plaintiff. In fact, Smt. Zothanpuii not only borrowed money from the respondent/plaintiff but also from 17 (seventeen) other persons and for which, the appellant No. 1/defendant No. 1 on her behalf and on behalf of 17 (seventeen) other persons filed Civil Suit No. 92/2011. The learned counsel by further referring to the deposition of Smt. Zothanpuii i.e., Defendant Witness No. 4 submits that out of the sum of Rs. 11 lakhs borrowed from the respondent/plaintiff by her, she repaid a sum of Rs. 1,10,000/-. As for the remaining balance of Rs. 9,90,000/-, she prayed before the Court for allowing her to repay the same by way of installments. The learned counsel therefore submits that Smt. Zothanpuii being a necessary party, the learned Trial Court should have impleaded her as a party defendant for proper adjudication of the matter. He also submits that there is no evidence to the effect that the appellant No. 2/defendant No. 2 had utilized the borrowed money and therefore, the finding of the learned Trial Court making him also liable to refund the money cannot be sustained. The learned counsel in support of his submission relies upon the case of Chuba Temsu Ao & Ors. Vs. Nangponger And Ors. reported in AIR (1994) Gau 110. 7. Mr. F. Lalengliana, the learned counsel for the respondent/plaintiff, on the other hand, submits that the respondent/plaintiff has no dealing with the Smt. Zothanpuii and in fact, a total sum of Rs. 11 lakhs was given to the appellant No. 1/defendant No. 1 on 4th, 7th & 13th August, 2008 and the same was duly witnessed by the appellant No. 2/defendant No. 2. 11 lakhs was given to the appellant No. 1/defendant No. 1 on 4th, 7th & 13th August, 2008 and the same was duly witnessed by the appellant No. 2/defendant No. 2. The money lending deed was duly exhibited by the respondent/plaintiff before the Trial Court as Exhibit P-1, P-2 & P-3 respectively. The signatures of the respondent/plaintiff and the appellants/defendants were also duly exhibited. In addition to the money lending deeds, the respondent/plaintiff also exhibited the undertaking given by the appellant No. 1/defendant No. 1 to repay the entire amount of money borrowed along with the interest at the earliest and the undertaking was witnesses by 2 (two) witnesses. The learned counsel also submits that the sum of Rs. 11 lakhs was borrowed by the appellant No. 1/defendant No. 1 with the knowledge and the consent of appellant No. 1/defendant No. 2 and the appellant No. 2/Defendant No. 2 only stood as a witness since he was a Government servant. The learned counsel submits that since the documents exhibited by the respondent/plaintiff were admitted without any objection, it would not be open for the appellants/defendants to raise any objection at this stage. In support of his submission, he relies upon the case of Dayamathi Bai Vs. K.M. Shaffi, reported in (2004) 7 SCC 107 . 8. I have heard the submissions made by the learned counsels for the rival parties and I have perused the materials available on record including the Lower Court Records. From the objection made by the appellants/defendants, the grounds taken for filing the appeal is two-fold. Firstly, the Suit is bad for non-joinder of necessary party/parties and secondly, the Trial Court could not have imposed the burden of repaying the loan amount on the appellant No. 2/defendant No. 2 as well. In order to consider these two issues, let us examine the evidence led by the parties before the trial court. 9. The respondent/plaintiff Smt. F. Lalhuthangi in her examination-in-chief stated that the appellants/defendants are wife and husband and the latter is the Principal of Government Aizawl College. The appellant No. 1/defendant No. 1 borrowed a sum of Rs. 5 lakhs, 3 lakhs and another 3 lakhs on 04.08.2008, 07.08.2008 and 13.08.2008 respectively i.e., Rs. 11 lakhs in all, from her with a promise to return the same with the agreed interest. The appellant No. 1/defendant No. 1 borrowed a sum of Rs. 5 lakhs, 3 lakhs and another 3 lakhs on 04.08.2008, 07.08.2008 and 13.08.2008 respectively i.e., Rs. 11 lakhs in all, from her with a promise to return the same with the agreed interest. Though the amount was borrowed in the name of appellant No. 1/defendant No. 1 but both the appellants/defendants jointly utilized the money. The appellant No. 2/defendant No. 2 did not want his name to be involved in the said loan as he is a Government servant. The respondent/plaintiff further stated that she patiently waited for the money to be returned to her but the appellants/defendants failed to return the money even after a lapse of 2 (two) years. On 21.07.2011, she went to the house of the appellants/defendants to enquire about the money but the appellants/defendants did not repay her the loan amount and the appellant No. 1/defendant No. 1 instead acknowledged her liability in writing. The same was witnessed by the appellant No. 2/defendant No. 2 and one Zothantluangi. 10. The respondent/plaintiff in her cross-examination stated that all the money that she had lent was given out from Solomon's Cave shop No. 107/08. The amount of Rs. 3 lakhs taken on 13/2008 as indicated in her counter claim was duly returned to her with 10% interest. Both the defendants never approached her saying that they require money. The defendant No. 1 and Smt. Zothanpuii came to a shop on 4th, 7th & 13th of August, 2008 to collect the loan of Rs. 5 lakhs, 3 lakhs and another 3 lakhs respectively. The defendant No. 2 never used to come when she lent the money. When she had gone to the house of the appellant No. 1/defendant No. 1, the appellant No. 1/defendant No. 1 called Smt. Zothanpuii and they met with each other. She also admitted that she met Zothanpuii in connection with the loan taken as advised by the appellant No. 1/defendant No. 1. She also stated that when the appellant No. 1/defendant No. 1 and Zothanpuii came together to her shop, she never handed over the money to Zothanpuii. She also stated that as Zothanpuii could not repay the borrowed money, she sought to be excused on two or three occasions. She also did not know how the sum of Rs. 11 lakhs was spent by Smt. Zothanpuii. 11. She also stated that as Zothanpuii could not repay the borrowed money, she sought to be excused on two or three occasions. She also did not know how the sum of Rs. 11 lakhs was spent by Smt. Zothanpuii. 11. Smt. Zothantluangi as the witness of the respondent/plaintiff in her examination-in-chief stated that she knows that the appellant No. 1/defendant No. 1 had borrowed a total sum of Rs. 11 lakhs from the respondent/plaintiff. She also knows that the appellant No. 1/defendant No. 1 admitted that she is having a debt amounting to Rs. 11 lakhs against the respondent/plaintiff. When she accompanied the respondent/plaintiff to the house of the appellants/defendants, the appellants/defendants clearly admitted their debt. The appellant No. 2/defendant No. 2 also admitted to the debt by putting his signature in the agreement made between the appellant No. 1/defendant No. 1 and plaintiff. In her cross-examination Smt. Zothantluangi stated that she is the daughter of the respondent/plaintiff and that she has not seen her mother give the money to the appellants/defendants. Exhibit P-4 was not made at the time when the money was lent and Exhibit P-5 was drafted by her mother, the respondent/plaintiff. When Exhibit P-5 was taken to the house of the appellants/defendants, they signed the same as per her request. In her re-examination, she stated that with regard to the contents of the acknowledgment and liability at Exhibit P-5, the appellant No. 1/defendant No. 1 admitted that Rs. 11 lakhs was received with the prior knowledge and permission of her husband and in fact, he put his signature as a witness in the said acknowledgment of liability. 12. Smt. Lalzawngliani was examined as DW-1. In her examination-in-chief, she stated that she never borrowed any money from the plaintiff. Starting from the year 2007, one Smt. Zothanpuii approached her to invest money through her with a suitable interest at the rate of 10% per month by stating that she was lending some money to some of the Department, Govt. of Mizoram. According to her, she was repaid with suitable interest within a short time. Therefore, she in good faith told some of her friends including the plaintiff regarding this. As such, the plaintiff also trusted Smt. Zothanpuii and she lent her money on her own freewill. At first, the plaintiff lent Smt. Zothanpuii a sum of Rs. of Mizoram. According to her, she was repaid with suitable interest within a short time. Therefore, she in good faith told some of her friends including the plaintiff regarding this. As such, the plaintiff also trusted Smt. Zothanpuii and she lent her money on her own freewill. At first, the plaintiff lent Smt. Zothanpuii a sum of Rs. 3 lakhs, which was repaid to the plaintiff with suitable interest. Thereafter, the plaintiff for the second time lent her money amounting to Rs. 3 lakhs, Rs. 5 lakhs and Rs. 3 lakhs on 13.05.2008, 04.08.2008 & 07.08.2008 respectively. Not only did Smt. Zothanpuii borrowed from the plaintiff but she also borrowed from 17 (seventeen) other persons including herself and her husband. Therefore, she had no responsibility and liability for the money borrowed by Smt. Zothanpuii from the plaintiff and in fact Smt. Zothanpuii had cheated the plaintiff herself, her husband and 15 (fifteen) other persons. DW-1 exhibited amongst others a copy of declaration made by Smt. Zothanpuii showing that she is liable for repayment of the borrowed money including the plaintiff's money as Exhibit DW-2. In her cross-examination, DW-1 stated that it was a fact that she had borrowed all the money mentioned in the Exhibit P-1, P-2 & P-3 which are confirmed in Exhibit P-4 & P-5. She also admitted to a final suit on behalf of persons whose names are mentioned at page No. 2 (a) to (r). As for the plaintiff, she did not authorize her to file the suit. She further denied that she herself alone was responsible for the money borrowed from the plaintiff. 13. Appellant No. 2 examined himself as DW-2 and in his examination-in-chief he stated that he and his wife never borrowed money from the plaintiff. In the year 2007, one Smt. Zothanpuii approached his wife to invest money with her with suitable interest at the rate of 10% per annum for a short time. His wife lent her money and she was repaid back with interest by Smt. Zothanpuii. Thereafter, his wife again lent her some money and this time, he also lent Smt. Zothanpuii his money amounting to Rs. 1 lakh on 06.08.2008. Likewise, 15 (fifteen) other persons lent their money to Smt. Zothanpuii which added up to Rs. 92,75,000/-. His wife lent her money and she was repaid back with interest by Smt. Zothanpuii. Thereafter, his wife again lent her some money and this time, he also lent Smt. Zothanpuii his money amounting to Rs. 1 lakh on 06.08.2008. Likewise, 15 (fifteen) other persons lent their money to Smt. Zothanpuii which added up to Rs. 92,75,000/-. However, Smt. Zothanpuii failed to repay the loan amount within a stipulated time and as a result, legal notice was served to her. However, despite the notice to the money was not returned. Thereafter, sometime in the month of July 2011, the plaintiff came to his house and asked him to sign some documents which she had prepared and he signed the papers without knowing the content. When he asked the plaintiff about the contents of the documents, she reply by saying that she was applying for business loan and the documents were to show as proof about her liability as required by the Bank. Similarly, the plaintiff also asked his wife to put her signature at the foot of the document which his wife signed in good faith not knowing or understanding its content. Thereafter, it was only after the money suit was filed that he and his wife saw the document under the heading "Acknowledgment & Liability". He therefore stated that the plaintiff for having cheated him and his wife, she was liable to pay compensation of Rs. 15 lakhs to them with interest. Besides this, he sought for a decree against the plaintiff in the manner it was stated in his written statement. In his cross-examination, DW-2 stated that it was a fact that he put his signature in Exhibit P-1, P-2, P-3 & P-5. From the said exhibits, he is of the knowledge that his wife had borrowed money from the plaintiff. He also admitted that the exhibits did not show anything about the involvement of Smt. Zothanpuii. He further denied that the money claimed by the plaintiff as the money borrowed from her was entirely the liability of him and his wife. He also stated that his wife and Smt. Zothanpuii have had no connection whatsoever. He also admitted that the exhibits did not show anything about the involvement of Smt. Zothanpuii. He further denied that the money claimed by the plaintiff as the money borrowed from her was entirely the liability of him and his wife. He also stated that his wife and Smt. Zothanpuii have had no connection whatsoever. In her re-examination, he stated that though in his cross-examination, he admitted having gone through the contents of Exhibit P-1, P-2, P-3 & P-5 and that his wife had borrowed money from the plaintiff, the fact was that he did not go through the contents of the exhibits and did not know what was written. He was then further cross-examined by the plaintiffs' counsel wherein he stated that he put his signature in P-1, P-2, P-3 & P-5 fully knowing the contents and the consequences. 14. Sh. Chhingpuia was examined as DW-3 and in his examination-in-chief stated that he knows the plaintiff and the defendants very well as all of them had lent money to Smt. Zothanpuii. The first and second time, he lent money to her, the amount was repaid with interest but when he lent her a sum of Rs. 40,000/- for a third time she failed to repay him to his knowledge. The defendant No. 1 did not take money of the plaintiff and that it was Smt. Zothanpuii, who had borrowed money from a number of persons including the plaintiff and the defendant No. 1 and defendant No. 2. In his cross-examination, he stated that he has no knowledge regarding the transaction mentioned in the Exhibit P-2, P-3 & P-4. He also stated that he did not know whether there was any document exhibited between the plaintiff and the defendants as he was not present. 15. Smt. Zothanpuii was examined as DW-4. In her examination-in-chief she stated that in the year 2008, she used to borrow some money from the defendant No. 1. As she needed some more money she asked her to introduce some of her friends and accordingly, she introduced her to the plaintiff. The plaintiff lent her some money and she repaid them back. Thereafter, for the second time, she again asked money from the plaintiff and she lent her the sum of Rs. 11 lakhs on different dates. She could not repay back the entire amount except for Rs. 1,10,000/-, leaving a balance of Rs. 9,90,000/-. The plaintiff lent her some money and she repaid them back. Thereafter, for the second time, she again asked money from the plaintiff and she lent her the sum of Rs. 11 lakhs on different dates. She could not repay back the entire amount except for Rs. 1,10,000/-, leaving a balance of Rs. 9,90,000/-. She also stated that she lent the money borrowed from the plaintiff to some other persons and since those persons were having repaid her the amount, she was not in a position to repay back her borrowed amount. She, therefore, stated that the Court may make an order for repayment of the balance amount of Rs. 9,90,000/- in installment. 16. Smt. Zothanpuii in her cross-examination stated that as far as she knows, Rs. 11 lakhs was received by DW-1 from the plaintiff and it was handed over to her by the defendant No. 1 as told by defendant No. 1. She knows that the defendant No. 1 has not returned back Rs. 11 lakhs to the plaintiff. She also knows that DW-1 had filed the suit against her claiming repayment of Rs. 95,75,000/- from her. She also stated that DW-1 filed the suit without the consent of the plaintiff. She further stated that she cannot produced any document to show that Rs. 11 lakhs belonging to the plaintiff was paid to her and she also cannot produced any document to prove that she had paid Rs. 1,10,000/- to the plaintiff. In her re-examination, she stated that the sum of Rs. 11 lakhs was received by her and not by DW-1. As she had not understood the question put to her, she had stated that DW-1 received money from the plaintiff and which in turn was given to her. The evidence of DW-4 in sum and substance is that she is the one who has received the money of the plaintiff amounting to Rs. 11 lakhs. 17. Coming to the first issue regarding the suit being barred for non-joinder of necessary party, it may be seen that the documents relied by the plaintiff i.e. Exhibit P-1, P-2, P-3, P-4 & P-5 goes to show that the money was handed over by the plaintiff to the defendant No. 1 and the defendant No. 2 being the husband of the defendant No. 1 was aware of the transaction. DW-4 Smt. Zothanpuii in her examination-in-chief stated that the plaintiff gave her Rs. 11 lakhs on different dates and out of which she repaid back Rs. 1,10,000/-. However, in her cross-examination, she stated that Rs. 11 lakhs was received by DW-1 from the plaintiff and it was handed over to her as told by DW-1. Although, DW-4 in her re-examination has tried to show that it was due to lack of understanding that she had made such statement and that it was she who received the money and not DW-1, the exhibits exhibited by the plaintiff otherwise shows that it was the DW-1 who had received the money. After receiving the money from the plaintiff, what the DW-1 did with the money cannot be the look out of the plaintiff. DW-2, who is the husband of the DW-1 in his cross-examination, also stated that Exhibit P-1, P-2, P-3 & P-5 does not show anything about the involvement of DW-4 Smt. Zothanpuii and from the contents of the said exhibits, he knows that his wife had borrowed money from the plaintiff. Therefore, upon due consideration of the materials available on record, I find that the Trial Court has rightly decided the issue in favour of the plaintiff and against the defendants. 18. Coming to the second issue regarding the burden imposed upon the DW-2 to repay the loan amount to the plaintiff, it may be seen that besides the plaintiff and DW-1, DW-2 had also signed the documents exhibited as Exhibit P-1, P-2, P-3, P-4 & P-5. Besides the said exhibits, it is clear from the evidence available on record that it was with the knowledge and consent of DW-2 that DW-1 borrowed the money from the plaintiff and they being husband and wife, they would only be jointly liable to repay the amount. DW-2 moreover is also a signatory and witness to the money lending deed. Therefore, even on this issue, I am of the considered view that the findings and direction of the Trial Court are justified and calls for no interference. 19. Thus, upon an overall consideration of the case in its entirety, I find no merit in the appeal and the same is dismissed. Office to send back the Lower Court Records. 20. Therefore, even on this issue, I am of the considered view that the findings and direction of the Trial Court are justified and calls for no interference. 19. Thus, upon an overall consideration of the case in its entirety, I find no merit in the appeal and the same is dismissed. Office to send back the Lower Court Records. 20. Before parting with the records, it is brought to the knowledge of the Court that in terms of the Order passed by this Court on 08.03.2017, the appellant deposited a sum of Rs. 4 lakhs before the Registry of this Court as a condition of stay of the impugned Judgment & Order. The amount was deposited by the Cheque No. 009249 dated 20.03.2017 and it was forwarded to the Branch Manager, State Bank of India, Dawrpui Branch, Aizawl on 22.03.2017 for fixed Term deposit for a period of one year. Since the appeal has been dismissed by this Court, the amount so deposited by the appellant be released to the respondent along with the interest which may have accrued as per the usual formalities. The amount released to the respondent shall be deducted from the total amount as may be due to her for payment by the appellants.