Money Suit No. 80/2008. Raj Kumar Tomma Singh...Plaintiff. Dooars Transport Limited and 4 others...defendants

Transcription

1 1 HEADING OF JUDGMENT IN ORIGINAL SUIT District: Kamrup (M) IN THE COURT OF CIVIL JUDGE NO.3, KAMRUP(M), GUWAHATI Present: Rajesh Kumar Todi, AJS, Civil Judge No.3, Kamrup (M), Guwahati Saturday, the 30 th day of April, 2016 Money Suit No. 80/2008 Raj Kumar Tomma Singh...Plaintiff Versus Dooars Transport Limited and 4 others...defendants This suit coming on for final hearing on in presence of Alok Deb, Ld. Counsel...for the plaintiff None...for the defendants And having stood for consideration to this day, this Court delivers the following judgment:

2 2 JUDGMENT 1. Plaintiff s case is that the defendant No.5, as manager of the defendant No.1, approached him for a loan of Rs.5,00,000/-. He disclosed that he was authorised by defendant No.1 (Dooars Transport Limited) to receive the loan. Accordingly in pursuance of an agreement dt the plaintiff paid Rs.5,00,000/- to the defendant No.5 who acknowledged receipt thereof for and on behalf of defendant No.1. The loan was repayable within three months as per terms of the agreement. 2. On the defendant No.5, issued three cheques, each dated , amounting Rs.1,00,000/- & 3,50,000/- in the name of plaintiff and Rs.50,000/- in the name of his wife bearing Nos , and respectively drawn on Indian Bank, Guwahati. 3. The defendant No.1 failed to repay the loan as agreed within three months. However, the defendant No.5 made request for delayed payment and he further requested plaintiff not to present the said cheques for encashment due to insufficiency of funds. In the mean time one year lapsed. But on the defendant No.5, for and on behalf of defendant No.1, acknowledged liability of the loan. 4. On again the defendant No.5, for and on behalf of defendant No.1, handed over three undated cheques of Rs.1,00,000/-, 3,50,000/- and Rs.50,000/- respectively to the plaintiff with a request not to present the same for encashment till he (plaintiff) received any information from him (defendant No.5) as regards sufficiency of fund to honour the said cheques. The defendant No.5, in this manner, used to inform about non-availability of fund from time to time. Ultimately the defendant No.1 failed to pay the debt. 5. The plaintiff, by filling cheque No for Rs.1,50,000/- with date and name of payee Raj Kumar Tomma Singh (plaintiff) presented the same in May 2006 but it got dishonoured due to closure of the account of the defendant No.1.

3 3 6. On legal notice U/s-138 & 141 of N.I. Act and U/s-420 IPC were issued to defendants calling upon them to liquidate the outstanding. 7. In reply to said notice Counsel for defendants No.2, 3 & 4 replied that cheques were not issued by them nor did they instruct defendant No.5 to issue the same. But the defendant No.5, in his reply dt , in response to notice dt , stated that he had issued post dated/undated cheques as manager of defendant No.1 and as per its instruction. 8. Since the defendants failed to repay the loan in spite of repeated approaches and demands the instant suit has been filed for realisation of the loan amount of Rs.5,00,000/- with interest etc. 9. It appears from the record that the defendant No.5 did not file his written statement and during pendency of the suit at the stage of evidence he died. Petition No.1300/12 filed by the plaintiff for substitution of legal heirs of defendant No.5 was allowed vide order dt and the legal heirs were brought on record as defendant No.5(1) to 5(4). However, subsequently, on petition No. 442/14 filed by said legal heirs of defendant No.5, their names were struck off from the record vide order dt holding that since the defendant No.5, in his capacity as manager and authorised representative of the defendant No.1 approached the plaintiff for loan, on his death, the right to sue survived only upon the surviving defendants and not upon the legal heirs of defendant No.5, late B.L. Banshal. It also appears from the record that the plaintiff did not challenge the said order dt and the suit proceeded for crossexamination of Pws. 10. Record also reveals that defendants No.1, 2 & 4 filed their written statement. It was pleaded that the suit is not maintainable, barred by limitation and is bad for nonjoinder and mis-joinder of necessary parties etc. 11. It is stated that the defendant No.5 was never allowed to take loan from plaintiff by defendant s company and its Board of Directors and he had no authority to do so and

4 4 to issue cheques as alleged without express authorization for that purpose. Further, defendant No.5 had no authority also to acknowledge any alleged debt on as alleged. It is asserted that since the defendant company did not take any loan from the plaintiff as claimed they are not liable to pay anything to the plaintiff. It is prayed that the suit be dismissed with cost. 12. On pleadings My Ld. Predecessor framed the following issues: i) Is there any cause of action for the suit? ii) iii) iv) Is the suit maintainable? Is the suit barred by limitation? Whether the defendant company obtained a loan of Rs. 5,00,000/- from the plaintiff on condition to repay the same within three months? v) Whether the defendant No.5 was authorised to take loan on behalf of the defendant company or whether the said defendant took the loan (if any) on his own behalf? vi) vii) Whether the defendant company failed to repay the loan amount? Whether plaintiff is entitled to a decree or any other relief, as prayed for? 13. It appears from the record that in support of its case the plaintiff examined himself and exhibited certain documents. The plaintiff was partly cross-examined by the contesting defendants and he (plaintiff) did not turn up subsequently for facing further cross-examination. The defendants, however, did not examine anybody from their side nor exhibited any document. In fact, they stopped appearing and even did not advance any argument in support of their pleading. Heard argument advanced by Ld. Counsel for the plaintiff. 14. Discussion, decision and reasons thereof

5 5 15. In the instant suit Issue No. IV and V are the moot issues and are interlinked and hence the same are taken together for discussion. Plaintiff in his examination-in-chief reproduced the facts pleaded. He also produced some documents in support of his claim and marked them as Ext-1 to Relevant portion of cross-examination of the plaintiff is reproduced as follows: there is no agreement between me and B.L.Bansal (defendant No.5, since deceased) or with any other defendant regarding loan. I can not say whether B.L.Bansal was having any authorization by way of resolution from the Board of Directors of defendant No.1. I did not insist the defendant No.5 to bring resolution from the Board of Directors of defendant No.1 for taking loan from me. B.L. Bansal (defendant No.5) had not shown any document to me regarding authorisation to take loan from me. 17. It also reveals that the plaintiff though initially stated that it is not a fact that the defendant No.1 and its director had had not taken loan from him but immediately in the next line of his cross-examination he admitted that defendant No.1 and its director had not taken any loan from him. 18. It appears from the aforesaid oral evidence of the plaintiff tendered in his crossexamination that it is an admitted position that there was no agreement between plaintiff and defendant No.5 or in between plaintiff and defendant No.1 to 4 regarding alleged loan and that there is no document to show that the defendant No.1 or the other defendants authorised defendant No.5 to take loan for and on their behalf. In fact, the plaintiff failed to establish that the defendant No.5 was the manager or the authorised representative of the defendant company at the relevant time. It further surfaces from cross-examination of the plaintiff that he categorically admitted that defendant No.1 or its directors had not taken any loan from him. Further, so far as defendant No.5 is concerned, as observed already that during pendency of the suit at the stage of evidence he died and while on petition No. 442/14 filed by said legal

6 6 heirs of defendant No.5, their names were struck off from the record vide order dt , the plaintiff did not challenge the said order dt This implies that the plaintiff had accepted that the defendant No.5 had no personal liability for the alleged loan. So situated the instant issues are answered in negative. Issue No. I,II, &VI 19. In view of decision of Issue No.IV and V above the instant issues are answered in negative. Issue No.III 20. In view of decision of Issue No. IV and V above the instant issue has become redundant and is answered accordingly. Issue No.VII 21. In view of decision of Issue No. IV and V above the instant issue is also answered in negative. ORDER In the result the suit is dismissed with cost. Let a decree be prepared accordingly. Given under my hand and seal of this Court on this 30 th day of April 2016 at Kamrup(M), Guwahati. (Rajesh Kumar Todi) Civil Judge No.3, Kamrup (M), Guwahati

7 7 APPENDIX Plaintiff s witnesses 1. Plaintiff himself 2. One bank official Plaintiffs documents 1. Ext-1 original copy of form No.32 for the year Ext-2 original copy of form No.32 for the year Ext-3 original copy of money receipt 4. Ext-4,5&6 three cheques Nos , & Ext.7 letter of acknowledgment 6. Ext-8,9&10 three cheques Nos , & Copy of customer receipt dt Original copy of notice dt Original copy of reply dt and 10. Original copy of reply dt Defendants witnesses Nil Defendants documents Nil

8 8 (Rajesh Kumar Todi) Civil Judge No.3 Kamrup(M), Guwahati