Civil Revision No.38/2007

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1 Civil Revision No.38/ Shri Navneet Dubey, counsel for the applicant. Heard on admission. Vide judgment and decree dated , Second Civil Judge, Class-II, Panna in civil suit No.1-B/2005 has decreed the claim of the respondent for a sum of Rs.15,000/- alongwith interest. In civil appeal No.4-B/2005, Additional District Judge, Panna vide judgment and decree , affirmed the decree passed by the trial Court. The facts of the case, in short, are that, due to personal relations of the parties, the plaintiff gave a sum of Rs.8,000/- to the applicant on and for security, a Kisan Vikas Patra was deposited. Thereafter, on again a sum of Rs.7,000/- was taken by the applicant. When the sum was not paid, a civil suit was filed. The applicant in his written statement has objected about the transaction and he took a plea that the respondent was a money lender and therefore, without filing the licence to that respect, suit of the plaintiff is not maintainable. The trial Court after framing all the issues, recorded the evidence of the parties and thereafter,

2 decreed the suit as mentioned above. Appeal filed by the applicant was dismissed. After considering the submissions made by the learned counsel for the applicant, it appears that the applicant mainly took two objections. Firstly, that the transaction was not proved beyond doubt because the plaintiff's witness Rajaram (P.W.2) has stated that an agreement was recorded on stamp paper whereas, alleged agreement document Ex.P/1 is recorded on a plain paper. Secondly, that no yearly accounts have been sent by the plaintiff to the respondent being a money lender and therefore, he was not entitled for the interest. In support of his contention, learned counsel for the applicant has placed his reliance upon the order passed by the single Bench of Chhattisgarh High Court in case of Rukmandhwaj Patel Vs. Dr.Chandrashekhar Sharma, [(2010) (4) M.P.H.T. 93 (C.G.)], in which it is held that compliance of the provision of Section 7 (C) etc. of Money Lender Act should be done by the money lender. If objections raised by the applicant are considered then, it would be apparent that Court fee stamp of Rs.2/- has been affixed on document Ex.P/1 and therefore, an illiterate witness could understand that it was a stamp paper and therefore,

3 by such contradiction, it cannot be said that his testimony was not believable and transaction was not proved. There is no reason to reappreciate the evidence, done by the Courts below. There is no reason to interfere in the concurrent findings of the Courts below relating to transaction and therefore, first objection raised by the learned counsel for the applicant cannot be accepted. So far as the second objection is concerned, the applicant knew that the plaintiff was a money lender and therefore, he took a plea of that position. It was for the defendant to raise all such objections in the written statement, so that the trial Court would have framed issues on those pleadings and both the parties would have an opportunity to lead the evidence. The applicant did not plead in his written statement that he did not receive the annual accounts, every year after the original transaction. Since he did not take such an objection in the pleadings, therefore, an adverse inference is to be drawn against the applicant that he received such accounts and therefore, he did not raise such an objection. It is true that any legal objection may be raised even at appellate stage. However, if objection is of such nature that some portion is related to evidence

4 and facts then, it cannot be said that it is a legal objection. It is true that the plaintiff could not get the interest of so many months before filing the civil suit on the rate of contract, if he had violated the provisions of Section 10 of the M.P. Money Lender Act, (The order passed by the single Bench of Chhatisgarh High Court is relevant to Sections 7 (C) and 10 of Money Lender Act. Money Lender Act of M.P. has been adopted by the Chhatisgarh State, therefore, there is no difference in the provisions of both the Acts). However, it was for the applicant to plead that he did not receive the annual accounts sent by the plaintiff and since he did not plead it, at this stage, he cannot raise such an objection with the pretext that he is raising a legal objection. It is pertinent to note that learned counsel for the applicant before the trial Court has raised objection that appropriate stamp duty was not affixed on document, Ex.P/1 and therefore, the document was impounded and duty and penalty of deficit stamp duty was recovered from the plaintiff. Similarly, on his objection that the plaintiff did not file his licence for money lending, the trial Court has given a conditional decree and directed that such licence be filed within 3 days otherwise, decree cannot be executed and the plaintiff filed his licence before the

5 Pushpendra trial Court within that period. Looking to the conduct of the applicant, it cannot be said that due to mistake of his counsel, the pleadings relating to sending of annual accounts could not be taken by him in the written statement. Looking to the pleadings of the applicant, an adverse inference should be drawn that he received the accounts from the plaintiff for those years and therefore, he did not make pleadings in his Written statement. Under such circumstances, second objection raised by the learned counsel for the applicant also cannot be accepted. No illegality or perversity is visible in the judgments and decrees passed by the Courts below and therefore, there is no reason to accept the present revision for consideration. Consequently, the present civil revision filed by the applicant Krishna Kant Sharma is hereby dismissed at motion stage. (N.K.GUPTA) JUDGE

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