MONEY SUIT NO.05 OF 2011

Transcription

1 District : MORIGAON. High Court Form No. (J) 2. Heading of Judgment in Original Suit IN THE COURT OF MUNSIFF NO.1, MORIGAON. Present : N.C.BHUYAN, AJS, MUNSIFF NO.1, MORIGAON. Friday, the 5 th day of September, MONEY SUIT NO.05 OF 2011 SMTI. ELA KALITA versus Plaintiff T. CHINTU SINGHA Defendant This suit/ case coming on for final hearing on 13/08/2014 in the presence of M.C.Sarkar, Advocate for the plaintiff; and None for the defendant, and having stood for consideration to this day, the court delivered the following judgment- JUDGMENT 1. The plaintiff has instituted this suit against the defendants for the recovery of Rs.1,30,000/-. 2. The brief facts leading to the institution of this suit as is revealed from the plaint is that on defendant came to his house and requested him to pay Rs.1,30,000/- for his business and accordingly the plaintiff gave the defendant Rs.1,30,000/- after executing a money bond upon a non judicial stamp paper in 1

2 presence of the witnesses Himanshu Kalita and Dipen Das and said money bond was typed by Tarun Kumar Deka. That the defendant promised to pay the entire amount within 3 months. And after 3 months i.e. on the plaintiff asked the defendant to return the said amount but the defendant took one month for repayment of the said amount. That after expiry of the one month i.e. on , plaintiff again demanded the said amount but the defendant did not pay any heed to the request of the plaintiff. 3. That having no other alternative, on the plaintiff sent a pleader s notice to the defendant for payment of entire money. That though the defendant received the legal notice, he did not pay the amount and hence the plaintiff sent a second legal notice to the defendant on and as the defendant did not pay the entire amount plaintiff has to file the instant suit to recover Rs.1,30,000/-. 4. The defendant appeared and contested the suit by filing written statement stating that there is no cause of action for the suit and that the plaint is silent about the authority of the plaintiff to provide loan under the provision of the Assam Money Lenders Act, 1936 as well as the authority required to be provided by the apex body of RBI.That the defendant further stated that there was a love affair between the defendant and the daughter of the plaintiff and when the plaintiff and her husband came to know about the said affair, the plaintiff and her husband tortured him to close the affair with their daughter and in such attempt, they also obtained various signatures of the defendant over some blank non judicial stamp papers and cartridge papers and one of such non judicial stamp paper of Rs.50/- was later converted as money bond by the plaintiff and her husband and that the defendant never took any money from the plaintiff or her family members and hence the defendant prays to dismiss the suit with costs. 5. Upon the pleadings of the parties my learned predecessor in office framed the following issues in this suit- (1)Whether there is any cause of action for this suit? (2)Whether the suit is maintainable? (3)Whether the plaintiff has authority to provide loans under the provisions of Assam Money Lenders Act read with RBI guidelines? (4)Whether the plaintiff is entitled to the relief/ reliefs as sought for? 2

3 6. The plaintiff in support of her case, examined herself along with two other witnesses and tendered some documents in evidence; whereas the defendant did not adduce evidence in support of his case. It would be pertinent to mention herein that the defendant cross examined the PW1 but did not cross examine PW2 and PW3. I have heard the arguments put forwarded by the plaintiff. DISCUSSION, DECISION AND REASONS FOR THE DECISION: 7. ISSUE NO.1: In the instant case the PW1 states that she gave the defendant Rs.1,30,000/- after executing a money bond upon a non judicial stamp paper in presence of the witnesses Himanshu Kalita and Dipen Das and said money bond was typed by Tarun Kumar Deka. That the defendant promised to pay the entire amount within 3 months. And after 3 months i.e. on the plaintiff asked the defendant to return the said amount but the defendant took one month for repayment of the said amount. That after expiry of the one month i.e. on , plaintiff again demanded the said amount but the defendant did not pay any heed to the request of the plaintiff. 8. In the cross examination PW1 states that on 28/07/09 money was given to the defendant at home by way of writing a document and the said document is submitted in the court and said document was typed written and that after she demanded money and as money was not paid, the document was typed out at Morigaon and that on that day the defendant did not come and Tarun Deka typed the said document and Exhibit 1 is that document and later on the signature of the defendant was taken by her after going to the house of the defendant and that there is no signature of the defendant on the second page of the Exhibit 1 and that the stamp paper was purchased on the very day on which the stamp paper was typed and that the PW1 has admitted that the stamp paper was purchased on 17/04/2009 and that the signature of the defendant was not taken in the place where it should have been. On the other hand PW1 in her examination in chief states that the defendant came to her quarter and the plaintiff gave the defendant Rs.1,30,000/- after executing a money bond upon a non judicial stamp paper of Rs.50/- in presence of the witnesses Himanshu Kalita and Dipen Das and said money bond was typed by Tarun Kumar Deka. 9. Hence it is found that there is full of contradiction in the examination in chief and the cross examination of the PW1. On one hand PW1 states that the plaintiff gave the defendant 3

4 Rs.1,30,000/- after executing a money bond upon a non judicial stamp paper of Rs.50/- at her house on 28/07/2009, on the other hand PW1 states that after she demanded money and as money was not paid, the document was typed out at Morigaon and that Exhibit 1 is that document. 10. Again on perusal of Exhibit 4 and 5 i.e. the legal notices, it is clearly mentioned that on execution of a money bond the defendant took Rs.1,30,000/- at Jagiroad and that the defendant was about to pay that amount within three months which expired on 28/10/2009. On the other hand on perusal of Exhibit 1 it is found that the document was executed on 28/10/2009 at Guwahati. Hence there is contradiction as to the date and place of execution of the Exhibit1 in the evidence of PW1 and that is mentioned in the Exhibit 1. So on one hand it is stated in the legal notice that the money bond was executed at Jagiroad, on the other hand PW1 states that money bond was executed at Morigaon. Again on perusal of the Exhibit 1 it is found that so called money bond was executed at Guwahati. So there is contradiction as to the place of execution of the so called money bond. 11. In the instant case PW1 in her cross examination has categorically stated that when she demanded money and the defendant did not pay her, she made the document i.e. Exhibit 1 and that the defendant did not come at that time and she took the signature of the defendant later on after going to his house and that there is no signature in the second page of the Exhibit 1. On perusal of the Exhibit 1 it is found that the document contains signature of the defendant in the second page, but not at the place where normally it should be and same fact is admitted by the plaintiff as PW1. So it leads to a doubt as to the proper execution of the Exhibit 1 by the defendant. 12. PW1 states that the stamp paper was purchased on the very day on which the stamp paper was typed and that the PW1 admitted that the stamp paper was purchased on 17/04/2009. On the other hand PW1 states that the Exhibit 1 was executed 28/07/2009. So it leads to a doubt as to the proper execution of the Exhibit 1 by the defendant. 13. It is an established principle of law that burden of proof of a fact lies on a person who asserts that thing and in the instant case the burden to prove that Exhibit 1 was exhibited by defendant lies on the plaintiff but the plaintiff has not been able to discharge her burden of proof as to the execution of the Exhibit 1 by the defendant in the real sense of meaning of the word execution. 4

5 14. Execution consists in signing a document written out, read over and understood. It does not consist of merely signing a name upon a blank paper. To be executed, a document must be in existence; where there is no document in existence there can not be execution. The proof of signature cannot always be regarded as tantamount to the proof of execution. It is necessary for a document to be said to have been executed by a person that there should not only the physical act of signing the document but also the volition or the mental inclination of executing it. 15. The cause of action is nothing but a bundle of material facts which the plaintiff must allege and prove in order to succeed in his case. 16. In the instant case the plaintiff has failed to prove those material facts as alleged by her and hence there is no cause of action for the suit. 17. Accordingly this issue is answered in the negative against the plaintiff. 18. ISSUE NO.2: As the plaintiff has no cause of action for this suit so the suit is not maintainable. Hence this issue is answered in negative in against the plaintiff. 19. ISSUE NO.3: As per section 2(1) of Assam Money lenders Act, 1934 Money Lender means a person who in the regular course of business advances loan as defined in this Act Money lender does not mean a person who gives a casual loan to a casual borrower from him, but means a person whose business is of money lending. The money lender is to maintain an account of his loans, furnish copies of the accounts to the borrower; he may employ or get other person for the purpose. A casual lender of money is not expected to do all these. 21. From the relevant legal provisions, it is found that the activities of advancing loan should be a regular affair and not in casual or isolated manner in order to bring a person within the purview of the concept of the word Money Lender. In the instant case, PW1, in her examination in chief, states that she does not do the business of money lending. Moreover, nothing is adduced by any party that the plaintiff has the authority to provide money under provision of Assam Money Lenders Act, 1936 read with RBI guideline. Hence, this issue is decided in negative. 22. ISSUE NO.4: In view of the discussions made above and the decisions reached in the foregoing issues it is held that the plaintiff is not entitled to any relief/reliefs from the defendant. 5

6 . ORDER 23. In view of the discussions made above and the decisions reached therein the suit of the plaintiff is dismissed on contest with cost. 24. Prepare decree accordingly. Given under my hand and the seal of this court on this the 5 th day of September, 2014 at Morigaon. N.C.Bhuyan Munsiff No.1,Morigaon. 6

7 APPENDIX A) Plaintiff s Exhibits: Ext-1- Hand note B) Defendant s Exhibits: None C) Plaintiff s Witnesses: PW1-Ela Kalita PW2-HImanshu Kalita PW3-Dipen Chandra Das D) Defendant s Witnesses: None N.C.Bhuyan Munsiff No.1,Morigaon. 7