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2022 DIGILAW 7 (TRI)

Tushar Kanti Datta v. Pijush Kanti Datta

2022-01-06

S.G.CHATTOPADHYAY, S.TALAPATRA

body2022
JUDGMENT S. Talapatra, J. -Heard Mr. Samarjit Bhattacharjee, learned counsel appearing for the appellant as well as Ms. S. Nandy, learned counsel appearing for the defendant No.1 and Mr. Somik Deb, learned senior counsel appearing for the respondents No. 2,4 to 9 and 11. 2. This is an appeal under section 96 of the CPC from the judgment and decree dated 30.04.2019 delivered in M.S. 03 of 2016 by the Civil Judge (Senior Division), Court No.1, South Tripura, Belonia. 3. By the said judgment, the Civil Judge (Senior Division), hereinafter referred to as the trial Judge, has dismissed the suit by holding that the plaintiff is not entitled to a decree of declaration that all the defendants are jointly or severally liable to him for an amount of Rs.16,75,000/-. It has been further observed by the trial Judge that the plaintiff is not entitled to a consequential decree for recovery of the said amount from the defendants by way of attachment of their properties etc. 4. The plaintiff instituted the suit for recovery of money to the extent of Rs.16,75,000/- which was purportedly taken by the principal defendant meaning the defendant No.1 from the plaintiff for investing the said amount of loan in the business of the other defendants. To be precise, the reliefs can be described in the following manner: (a) a decree for declaration, declaring that the defendants are jointly and severally liable to pay back a sum of Rs.16,75,000/- with 'statutory interest' thereon, (b) a decree for attachment of properties and moneys for securing the debt of the plaintiff, (c) a decree for damages and/or for mesne profit, (d) cost of the suit, and (e) interest @12% per annum w.e.f. 01.11.2013 till the realizing of the said sum. 5. From the narrative as laid in the plaint, it appears that the case of the plaintiff is that the defendant No.1 and the plaintiff are full blood brothers. In the year 2013, the defendant No.1 spelt an impression on the plaintiff that the defendant No.1 along with the defendants No.3 to 9 had been carrying on a business of bricks under the name and style of 'Maa Kali Bricks Industries'. Sometime in the month of November, 2013, to be precise, on 01.11.2013, the defendant No.1 persuaded the plaintiff for providing some money for smooth running of the brick kiln. Sometime in the month of November, 2013, to be precise, on 01.11.2013, the defendant No.1 persuaded the plaintiff for providing some money for smooth running of the brick kiln. The defendant No.1 at that time had assured the plaintiff that no sooner the 'accredited' moneys began to flow in the coffer of the firm, he would repay the said amount. Thereafter, the plaintiff has asserted that he had demanded 'registered indentures', but on 'assassination of the psychosomatic emotion of the plaintiff', a sum of Rs.4,00,000/- was loaned out to the defendant No.1 on 01.11.2013. Subsequently also, the plaintiff made payments in different installments on 07.11.2013, 13.11.2013, 29.11.2013, 02.12.2013, 06.12.2013, 07.12.2013, 09.12.2013 and 12.12.2013. The total amount according to the plaintiff that he paid to the defendant No.1 is aggregated at Rs.20,00,000/-. 6. It has been further asserted that initially the plaintiff was reluctant to sign over the credit vouchers that were brought in acknowledgment of the receipt of the said amount. But being persuaded and also being satisfied, he signed later on those vouchers. According to the plaintiff, it was agreed that the defendant No.1 will refund the entire amount of Rs.20,00,000/- within July, 2014. But the defendant No.1 did not make such repayment as assured. When he was asked to repay the said amount, the defendant No.1 asked for extension of further one year for such repayment. As the plaintiff is the elder brother of the defendant No.1, he agreed to the said proposal and it was agreed that by 15.07.2015, the said amount shall be paid. 7. It has been also asserted by the plaintiff [the appellant herein] that a sum of Rs.3,25,000/- out of Rs.20,00,000/- was paid and the remainder, Rs.16,75,000/-, was supposed to be paid by the defendant No.1. Thereafter, the defendant No.1 on one or other pretext deferred the said repayment with ill motive to defraud the plaintiff. The plaintiff had attempted to file a complaint in the Court of the Chief Judicial Magistrate, South Tripura, Belonia being C.R. case No.43 of 2015 for defrauding him. But, the cognizance of the suggested offence was declined as according to the Chief Judicial Magistrate, the dispute did not constitute any offence, rather it was a civil dispute and accordingly the plaintiff was asked to take appropriate recourse. 8. But, the cognizance of the suggested offence was declined as according to the Chief Judicial Magistrate, the dispute did not constitute any offence, rather it was a civil dispute and accordingly the plaintiff was asked to take appropriate recourse. 8. In Para 14 of the plaint, the plaintiff has asserted that subsequently he came to know that the said partnership firm had executed a power of attorney in favour of one Babul Majumder and to another Narayan Bhowmik. According to the plaintiff, the defendants were not the partners of the said partnership firm as he was given the impression. But they are running the said brick kiln through those attorneys. 9. It came to the knowledge of the plaintiff that the defendants were selling the bricks from their stock-pile at a much lower price than the prevailing market rate. However, since the plaintiff did not get back his money, he had instituted the suit urging the reliefs as noted above. 10. The basic allegations are against the defendant No.1, who is the respondent No.1 in the instant appeal. The respondent No.1 has categorically stated by filing the written statement that he had never taken any loan from the plaintiff and that at one point of time he had business relation with the brick kiln but later on he had no interest or stake in the said business. Similarly, the other respondents by filing a joint written statement had completely denied the facts as pleaded in the plaint and stated that no money has come from the defendant No.1 in the coffer of their business. 11. On the basis of these rival pleadings, as noted above, the trial Judge framed the followings issues: i) Whether the Plaintiff has got appropriate cause of action in this case? ii) Whether the Plaintiff is entitled for decree of declaration that all the defendants are jointly or severally liable to him for the amount of Rs. 16,75,000/-? iii) Whether the Plaintiff is entitled to a decree of recovery of the above amount from the defendants by way of attachment of their property etc? iv) Whether the Plaintiff is entitled to get a decree of damage or compensation or mesne profits from the defendants? v) Whether the Plaintiff is entitled to get an interest @ 12 % per annum only from the defendant No. 1 until realization of the total amount due? iv) Whether the Plaintiff is entitled to get a decree of damage or compensation or mesne profits from the defendants? v) Whether the Plaintiff is entitled to get an interest @ 12 % per annum only from the defendant No. 1 until realization of the total amount due? vi) Any other relief(s), if the Plaintiff is entitled to? 12. It appears from the records that plaintiff adduced four witnesses including himself [PW-1], Sri Shankar Prasad Saha [PW-2], Sri Nandan Baidya [PW-3] and Sri Sankar Saha [PW-4]. The plaintiff had also introduced in the evidence documents including the credit vouchers [Exbt.4 to 12]. That apart, the plaintiff has exhibited one partnership deed being No.IV-114/09 [Exbt.01]. 13. From the other side, the defendants had examined three witnesses namely, Sri Sanatan Paul [DW-1], Sri Gopi Deb Roy [PW-2] and Sri Jiban Debnath [PW-3]. 14. Even though the defendants filed the examination in chief of Sri Radha Raman Datta, but since he was not produced for cross examination, his examination in chief was discarded by the trial Judge. On evaluation of those evidence, the trial Judge returned the said finding and dismissed the suit. 15 Being aggrieved by the said judgment, this appeal has been preferred. [1.6] Mr. Bhattacharjee, learned counsel has criticized the finding of the trial Judge that on perusal of credit vouchers [Exbt.4 to Exbt.12] it appears that the credit vouchers are numbered serially from 26,27,28,29,30,31,32,33 and 34, transacted on different dates. It is very surprising that though the transactions had taken place on different dates but the credit vouchers' serial Nos. are continuous. The credit vouchers are supposed to be maintained serially. It further surfaces that no sign of tearing or taking out of the credit vouchers from the books of credit vouchers. The credit vouchers bore the signature of one Shankar Prasad Saha with the seal of Manager, Maa Kali Bricks Industries, Chittamara, Madhya Bharatchandranagar, Belonia, South Tripura. 17. On appreciation of the evidence of PW-2, the trial Judge has further observed that it appeared that Shankar Prasad Saha [PW-2] was his student. PW-2 has stated that he worked as the Manager of Maa Kali Bricks Industries since November, 2012 to 25.03.2014. To prove the fact, PW-1 and PW-2 could not produce any oral or documentary evidence in respect of the transaction. PW-2 has stated that he worked as the Manager of Maa Kali Bricks Industries since November, 2012 to 25.03.2014. To prove the fact, PW-1 and PW-2 could not produce any oral or documentary evidence in respect of the transaction. PW-2 in his testimony stated that he did not have any document to produce that he had worked as a Manager of Maa Kali Bricks Industries. 18. During cross examination, PW-2 has categorically stated that he cannot say who the owner of the Maa Kali Bricks Industries. He has further stated that he cannot say in whose name the licence of Maa Kali Bricks Industries stood at the relevant point of time. PW-2 has further stated in the trial that Pijush Kanti Datta [the defendant No.1] assigned PW-2 to look after Maa Kali Bricks Industries on verbal request. In the cross examination, PW-2 had stated that he did not have any document of ownership by Pijush Kanti Datta in respect of Maa Kali Bricks Industries. Therefore, a doubt arises that if really PW-2 served as the Manager in Maa Kali Bricks Industries for a period since November, 2012 to 25.03.2014. If he was the Manager of the said brick kiln or the partnership firm, how can he say that he did not know who was the owner of the Maa Kali Bricks Industries under which he claimed to be the Manager. According to the trial Judge, that aspect has evidently shaken the credibility of the said witness and hence, PW-2 was trusted and relied on. The credit vouchers also appear to be manipulated. On the basis of the above fundamental observation, the suit has been dismissed. 19. Mr. Bhattacharjee, learned counsel has submitted that there is no reason to disbelieve PW-2 as PW-2 has admitted the credit vouchers which bear his signature as well as the signature of the plaintiff. The issue that whether PW-2 was a student of PW-1 is even not remotely relevant in the present context and that cannot be the ground for distrusting a witness. Mr. Bhattacharjee, learned counsel has submitted that if the deposition of PW-2 is believed, the finding has to be intervened by this Court allowing the suit. 20. From the other side, Ms. Mr. Bhattacharjee, learned counsel has submitted that if the deposition of PW-2 is believed, the finding has to be intervened by this Court allowing the suit. 20. From the other side, Ms. S. Nandy, learned counsel has submitted that it has been categorically asserted by the respondent No.1 [the defendant No.1 in the suit] that he does not have any relation with that business and therefore he did not have any authority to appoint anyone as a Manager of the partnership firm. Therefore, the entire story as narrated by the plaintiff is a cock and bull story and should not be given any credence by this Court. 21. Mr. Somik Deb, learned senior counsel appearing for the respondents No.2,4 to 9 and 11 has submitted that in the partnership firm, no fund had flown in through the defendant No.1 as claimed by the plaintiff. Moreover, the defendant No.1 had no role in the business of the partnership firm called Maa Kali Bricks Industries. Hence, the suit is unsustainable against the defendants, represented by Mr. Deb, learned senior counsel. 22. On appreciation of submissions of the learned counsel appearing for the parties as well as the records those have been placed before us, we are of the view that the solitary question that falls for consideration in this appeal is whether the deposition of PW-2, or for that matter the credit vouchers, can be believed by this Court for granting the relief as sought by the plaintiff. 23. The plaintiff, as is evident, is not consistent because his entire reliance on PW-2 is fragile, as PW-2 has been styled as the Manager of the defendants. Even PW-2, in the cross examination, as carried out by the defendant No.4, has candidly testified that he had no idea who the owner was, of the said partnership firm. If this statement is believed, the liability on the other respondents beyond the respondent No.1 cannot be sustained by any stretch of interpretation or evaluation of the evidence. The ancillary question that remains to be addressed by this Court is that whether the defendant No.1 had any interest in the partnership firm or business or whether the defendant No.1 had at all taken the money from the plaintiff. For that purpose, the evidence that has been introduced by the plaintiff is the credit vouchers through PW-2. 24. The ancillary question that remains to be addressed by this Court is that whether the defendant No.1 had any interest in the partnership firm or business or whether the defendant No.1 had at all taken the money from the plaintiff. For that purpose, the evidence that has been introduced by the plaintiff is the credit vouchers through PW-2. 24. We have verified the statements of PW-2 vis-à-vis the credit vouchers. We find that PW-2 has categorically deposed that an amount of half of the total amount to the extent of Rs.10,00,000/- were collected as the share money not the loan. But the plaintiff did not produce any evidence that the partnership firm ever offered the plaintiff to be inducted as the partner of the said partnership firm. This is an absurd proposition, which makes the entire evidence through the voucher, an improbable one. That apart, the fact of payment that had been made, as claimed by the plaintiff, has not been proved at all. 25. Having read the entire evidence together, we consider that probability as inferred by the trial Judge is based on preponderance. 26. As corollary, we do not find any merit in this appeal. Accordingly, the same is dismissed. Prepare the decree accordingly. Send down the LCRs thereafter.