IN THE GAUHATI HIGH COURT

Transcription

1 IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) PRINCIPAL SEAT AT GUWAHATI (CIVIL APPELLATE JURISDICTION) RSA No.146 of 2016 Sri Samir Kumar Chandra Appellant -Versus- Sri Samarjit Ray Respondents. BEFORE HON BLE MR. JUSTICE N. CHAUDHURY For the appellant : For the respondent : Ms. P. Bhattacharya, Advocate. None appeared at the time of hearing. Date of hearing : Date of Judgment : JUDGMENT & ORDER (Oral) 1. Heard Ms. P. Bhattacharya, learned counsel for the appellant. 2. In this Second Appeal defendant of Money Suit No.12/2007 of the Court of learned Munsiff No.2, Dhubri has challenged the concurrent findings of the learned Courts below. The learned Munsiff decreed the suit for a sum of Rs.60,000/- (Rupees Sixty Thousand) along with interest at the rate of 6% per annum from the date of institution of the suit till RSA No.146/2016 Page 1 of 6

2 realization and Money Appeal No.8/2013 filed there-against before the learned Civil Judge at Dhubri was also dismissed by impugned appellate judgment and decree dated The present Second Appeal is directed against the judgment and decree dated passed in Money Suit No.12/2007 as well as the aforesaid appellate judgment and decree dated in Money Appeal No.8/ The sole respondent herein as plaintiff instituted Money Suit No.4/2006 in the Court of learned Civil Judge (Senior Division), Dhubri against the present appellant as the sole defendant stating that a sum of 60,000/- was paid by him as loan to the sole defendant by cheque on Subsequently, on , another sum of Rs.50,000/- was paid towards loan to the sole defendant by him by cheque dated on United Bank of India, Dhubri Branch. The defendant thus received a total sum of Rs.1,10,000/- from the plaintiff but he refunded only a sum of Rs.50,000/- by cheque dated on United Bank of India, Dhubri Branch. The defendant thus was yet to refund a sum of Rs.60,000/- but as the same was not paid a money decree was asked for along with interest at the rate of 12% per annum. The suit was subsequently transferred to the learned Court of Munsiff No.1, Dhubri on enhancement of pecuniary jurisdiction and thereupon it was renumbered as Money Suit No.12/ On being summoned the defendant appeared and submitted written statement denying the case of the plaintiff and also taking an RSA No.146/2016 Page 2 of 6

3 objection that there was no cause of action for the suit; that the suit was barred by non-joinder of necessary parties and that the suit was barred under Assam Money Lenders Act. According to the defendant, the claim of the plaintiff is barred by limitation. Since the loan was extended in the year 2000 the claim became time barred as the suit was instituted in the year The learned trial Court after considering such objections raised by the defendant and pleadings of the plaintiff framed as many as seven issues and the same are quoted below :- 1. Whether the suit is maintainable in the present form? 2. Whether there is a cause of action for the suit? 3. Whether the suit is barred by limitation Act? 4. Whether the suit is barred under any Act? 5. Whether the plaintiff is entitled for recovery of rupees 60,000/-? 6. Whether the plaintiff is entitled for 12% interest on the due amount? 7. To what other relief/reliefs, the plaintiff is entitled? 6. In course of trial the plaintiff examined two witnesses including himself and exhibited seven documents. Two cheques were exhibited as Exts-1 and 2 whereby the loan was extended to the defendant and Ext-4 cheque was exhibited to show that the defendant refunded only a sum of Rs.50,000/-. Bank statement was exhibited as Ext-2(1) and Ext- 1(4). The defendant did not lead any evidence. RSA No.146/2016 Page 3 of 6

4 7. Considering the evidence both oral and documentary adduced by the plaintiff the learned trial Court was of the view that the suit was maintainable in the present form and that the suit was not barred by limitation. It was also held that since the plaintiff paid a sum of Rs.1,10,000/- in total to the defendant by two cheques dated and and defendant having refunded only a sum of Rs.50,000/- by cheque dated , obviously, the defendant was yet to make refund of Rs.60,000/-. Accordingly, it was ordered that the defendant was liable to refund the sum of Rs.60,000/- along with interest at the rate of 6% per annum. This judgment and decree passed by the learned trial Court on came under challenge in Money Appeal No.8/2013 before the learned Civil Judge at Dhubri. The learned First Appellate Court by its judgment and decree dated decided the three points for determination in favour of the respondentplaintiff and thereupon held that the suit was neither barred by limitation nor was the plaintiff prohibited from instituting the suit because of the provision of the Assam Money Lenders Act. Having considered the evidence on record afresh the learned First Appellate Court arrived at the finding that by two cheques of two different dates the plaintiff extended loan of Rs.1,10,000/- in total to the defendant. A sum of Rs.50,000/- was only refunded by the defendant by cheque on and so obviously the defendant was yet to make payment of the balance sum of Rs.60,000/-. The findings of the learned trial Court, RSA No.146/2016 Page 4 of 6

5 therefore, were affirmed and the appeal was dismissed. Both the judgments have been called in question in the present Second Appeal. 8. Having heard Ms. P. Bhattacharya, learned counsel for the appellant and having gone through the pleadings of the parties and the two judgments by the learned Courts below I do not feel that any substantial question of law does arise in the present Second Appeal. The learned First Appellate Court did not commit any error in clubbing the two cheques together for the purpose of deciding the period of limitation. According to Ms. Bhattacharya, learned counsel for the appellant, the plaintiff claimed that the first cheque was issued on for a sum of Rs.60,000/- and if that amount was not refunded within a period of three years thereafter the claim became barred on itself. Thereafter, on a further sum of Rs.50,000/- was paid by the plaintiff and that claim was not time barred for which refund was made on According to Ms. Bhattacharya, the plaintiff had a valid claim to the extent of Rs.50,000/- only on the basis of the cheque dated and the same having been paid by the defendant on no further money is legally payable to the plaintiff. This argument of Ms. Bhattacharya appears to be tempting at the first blush but on perusal of the pleadings made by both sides it appears that the plaintiff made first payment on and even though the same was not repaid, considering the relationship between the parties another sum of Rs.50,000/- was extended to the defendant RSA No.146/2016 Page 5 of 6

6 on Both payments were made by cheque and the amounts were accordingly encashed in the account of the defendant as disclosed in Bank s statement exhibited as Ext-1(4) and 2(1). Both these documents were accordingly proved by examining an official of the Bank as PW 2. The learned courts below observed that date of limitation for institution of the money suit will run from the date when demand for refund was made. Considering the evidence available on record the learned trial Court was of the view that it is accordingly on the plaintiff made a demand for refund of the aforesaid amount of Rs.1,10,000/- from the defendant and so limitation started running from that date. The suit was filed on If a date of limitation is counted from the date of demand in that event also the suit has been filed within the period of limitation and this is why both the learned Courts below held that the suit is not barred by limitation. The observation made by the learned trial Court as well as the learned First Appellate Court appears to be sound and reasonable. Having so found, I do not feel that there is any scope to admit the Second Appeal. The Second Appeal is accordingly dismissed. No order as to cost. JUDGE T U Choudhury RSA No.146/2016 Page 6 of 6