IN THE COURT OF THE ADDITIONAL DISTRICT JUDGE AT DIBRUGARH. Money Appeal Case No. 1/2011.

Transcription

1 1 IN THE COURT OF THE ADDITIONAL DISTRICT JUDGE AT DIBRUGARH Present : Sri A.B. Siddique, Addl. District Judge, Dibrugarh. Money Appeal Case No. 1/2011. Sri Bhupendra Singh, Appellant -Vs- Sri Sobhit Jain, Respondent. Appearance : Sri S. Seal, Advocate, for the appellant. Sri Partha Pratim Sen Sarma, Advocate, for the Respondent. Date of argument : Date of Judgment : And having stood for consideration to this day, the Court delivered the following judgement JUDGMENT. (1) This is a suit filed by the petitioner Sri Bhupendra Singh U/s. against the judgment and decree dated , passed by the Learned Munsiff No. 1, Dibrugarh in Money suit No. 37/2008. Brief facts of the case is that in the month of August 2008, the plaintiff / respondent filed Money Suit No. 37/08 in the Court of the learned Munsiff No. I,

2 2 Dibrugarh all egagint that he paid Rs. 51,000/- to the appellant/ defendant on 18% per annum but the appellant/ defendant defaulted to refund him the said amount. (2) On receipt of the notice the appellant/ defendant filed written statement against teh said suit by narrating the entire facts. Finally on the learned Munsiff No. 1, Dibrugarh after hearing the case, passed judgment and order holding that the plaintiff is entitled to realize an amount of Rs. 51,000/- from the defendant along with the 6% per annum from filing of this suit till date of realization with cost. (3) Being highly aggrieved and dissatisfied with the Judgment and Order passed by the learned Magistrate, the appellant preferred this appeal inter alia, on the following grounds : That the impugned judgment and decree are neither maintainable in Law nor sustainable in facts, hence, the case is liable to be set aside. That the learned court below has not declined the issues of the suit in proper form and procedure; and as such, the impugned judgment and decree are liable

3 3 to be set aside. That the learned court below has not decided the issue of the suit in proper form and procedure. It appears from the impugned judgment that the learned Court below decided the said issue in favour of the plaintiff/ respondent and that also without discussing the admitted facts of the respondent/ plaintiff. That the learned Court below has not decided the issue No. 1, 3, 4, 5 and 6 of the suit in proper Form, and prescribed procedure of law, hence, the impugned judgment and decree are liable to be set aside. Learned Court below without settling the issues No. 3, 4, and 5 individually and separately decided the same jointly in favour of the plaintiff/ respondent and that also in a negative way which is devoid of sanction of law. That the learned Court below did not discuss and settle the issue no. 3 in proper and prospective form and manner. The learned Court below has not framed and decided the vital issues: -

4 4 a). Whether the suit is properly valued and requisite Court fess have been paid? b). Whether the suit is barred under the provisions of Money Lender Act and other provisions of law? The learned Court below did not discuss the Evidence of the PWs and DWs in the Judgment in proper, perspective manner and also as per prescribed procedure of law. 4. Heard learned counsel for both sides. Upon pleadings of both the sides following issues have been framed by the learned Trial Court. ISSUE FRAMED AND DETERMINED BY TRIAL COURT 1. Whether there is cause of action for this Suit. 2, Whether the suit is barred by limitation? 3. Whether the defendant availed any loan from the plaintiff as alleged? 4. Whether the alleged money was paid as an advance for room in the My desert restaurant? 5 Whether the amount so paid has been already adjusted as rent? 6.Whether the plaintiff is entitled to the relief claimed for?

5 5 7. To what relief / relieves the parties are entitled? POINT FOR DETERMINED 5. The only point to be determined is that whether the judgment and decree passed learned trial is perverse? DECISION AND REASONS THEROF 6. In order to prove its case the plaintiff examined two witnesses and the defence has also adduced two witness. 7. Let us discuss the evidence of P.W. 1, Sri Sobhit Jain, who is the plaintiff in the instant suit and acquainted with the facts of the case. He categorically denied the averments of para 5 and 7 of the written statement which were false and cooked up by the defendant and he also denied that any No-objection certificate was issued by him as alleged in para 5 of the written statement. He also stated that the defendant has approached him personally in the month of September, 2007, with the request for some financial aid as loan in connection with financial urgency in his business and accordingly this witness paid the defendant a sum of Rs. 51,000/- only as loan vide

6 6 Cheque no on drawn on State Bank of India, Dibrugarh ranch with an assurance that the same would be refunded within three months by the defendant with an 18% thereon. He further stated that in course of time, the defendant failed and neglected to pay the said amount of Rs. 51,000/- taken from him as financial aid (Loan ) as agreed upon, even in spite of repeated request and demands for many times. He contacted defendant for several times with a request to return back the said amount immediately and to maintain the relation in good at a length but the defendant did not apply to pay heed. He also served a demand notice upon the defendant on Though the said demand notice was duly received by the defendant in time but did not response to my request. But surprisingly, the defendant to get ride of from the claim of this witness to repay the loan amount issued legal notice through his lawyer Sri Siddheswr Kanoo denying the claim with a concocted and baseless story. Finally finding no other alternative this witness compelled to file this suit against the defendant for recovery of the sum of Rs. 51,000/- with further amount for a sum of Rs.

7 7 8,832/- pm being interest calculated from till 18% per annum and cost of the suit and future 18% per annum till the date of realization from the Defendant. During cross-examination this PW stated that he did not remember the date when the defendant approached him for lending the money. He paid the money after few days but do not remember the days exactly. He paid the money inside the Outlaw near his 'Dear Restaurant'. The distance of his residence from the Outlaw will be less than half a kilometer. Paban Garodia, Pankaj is his father and Rajkumar are present at the time of paying the money. He denied the suggestion that his father delivered the cheque and he did not pay the same. He also denied that his father made an agreement with the defendant for taking a shop premises on rent from the defendant and paid Rs. 51,000/- as security. This P.W. also stated that he paid him the money from his account maintained jointly by him and his father. He paid the money after consultation with his father. He also stated

8 8 that he did not maintain any books of account/ record the aforesaid money although his father is an income tax assessee. He also denied that he did not pay the money as a loan but paid as a security. He denied the suggestion that he did not entitle to any money from the defendant. He also denied the suggestion that no agreement for interest was made in between us and the defendant is not liable to pay any interest. He also denied that the cheque was delivered in Cole Road. He further has deposed that he knew the payment vide the cheque for Rs. 51,000/- was made by the plaintiff to the defendant in the month of September, 2007 and the defendant also assured the plaintiff to pay 18% per annum, to be liquidated the entire money with interest within three months. Later on plaintiff told him that defendant filled to pay the said amount of Rs. 51,000/- only taken from the plaintiff as financial aid (loan) and he knows several notices from both side, i.e. plaintiff and defendant were served each other regarding refund of the loaned amount by the defendant to the plaintiff including a demand notice served upon the defendant prior to legal notice.

9 9 He also stated that he never heard in any time of payment of the said sum of Rs. 51,000/-by the plaintiff to defendant that the said money was an advance to take/occupy a room of the defendant, situated over the upper portion of 'My Dear Restaurant' by the plaintiff. This P.W. also stated that till date the defendant did not refund the loan amount of Rs. 51,000/- with any interest thereon. He also surprised to see the notice served by the defendant through his lawyer denying the claim with a concocted baseless story that the said sum of Rs. 51,000/- only was taken as an advance to take/ occupy a room of the defendant, situated over the upper portion of My Dear restaurant and the said amount has already been adjusted as room 11,000/- per month and as such no question of refund of the money paid by the plaintiff to the defendant by cheque. He further submitted that as no room for opening any show room or business was taken from the defendant by the plaintiff so payment of room Rs. 11,000/- only per month does not arise. During cross-examination he has sated that he knew Sobhit Jain since 15 years. He also know the

10 10 complainant since last 10 years. Defendant since last fifteen days pursuing for loan. He also stated that while delivering cheque Sobhit Jain, Sandip Sharma and this witness was also present. It was agreed to pay 18% on the loan amount. He does not know wherefrom the defendant brought the money. He even cannot say if defendant had any certificate relating to money lending. The defendant had 4/5 shops and the shops were given in rent. He denied the suggestion that for a show room above the restaurant Rs. 51,000/- was given to plaintiff's father and an agreement was executed between them. He also denied that plaintiff has not given any cheque to defendant at Charlie Show room. He also denied that defendant did not issued NOC Certificate to plaintiff's father for opening show room. 8. P.W. 2, Sri Pawan Jajodia, has deposed that he know both plaintiff and defendant. He know the payment vide the cheque for Rs. 51,000/- only was made by the plaintiff to the defendant in the month of September 2007 and the defendant also assured the plaintiff to pay interest 18% PA to be liquidated the entire money with

11 11 interest within three months. He also deposed that later on, the plaintiff told him that the defendant failed to pay the said amount of Rs. 51,000/-0 only taken from the plaintiff as financial aid (loan) he also know the several notices from both the side, plaintiff and defendant were served each other regarding refund of the loaned amount by the defendant to the plaintiff including a demand notice served upon the defendant prior to legal notice. He also deposed that he never heard in any time or the time of payment of the said sum of Rs. 51,000/- only by the plaintiff to the defendant that the said money was an advance to take /occupy a room of the defendant, Situated over the upper portion of My Dear Restaurant' by the plaintiff. He also stated that as no room for opening any show room or business was taken from the defendant by the plaintiff so payment of room Rs. 11,000/- only per month does not arise. During cross-examination of PW 2, he stated at the time of delivering cheque, Sobhit Jain, Sandip Sharma and this witness was also present. There was an a settlement of interest of 18% per annum.

12 12 9. D.W. 1, Sri Bhupendra Singh, has deposed that he know the plaintiff and his father Sri Surendra Kr. Jain. Te plaintiff and his father in the month of September 207 came to him on several occasions and expressed their desire to take one of his room in the first floor of his building situated over the upper portion of My Dear Restaurant at Mancota Road of Dibrugarh Town for opening their proposed Alankar Show Room. The terms and condition regarding the payment of the rent was settled verbally between him and the plaintiff. There rent of the said room was fixed Rs. 11,000/- PM and Rs. 51,000/- was fixed to be deposited as security amount before taking the possession of the shop. The security amount of Rs. 51,000/- was refundable to plaintiff at the leaving and vacating the shop premises. The plaintiff agreed to take the shop premises as a monthly tenant and on the plaintiff called him to give the money in New Market, Dibrugarh. He went there at about 4 PM. The plaintiff along with the P.W. 2 met him at Coal Road and handed over to him a cheque of Rs. 51,000/- towards 'salamy' of the proposed Show Room and the plaintiff took the possession of the Shop premises

13 13 on the same day. He also issued NOC to the plaintiff for opening ALANKAR SHOW ROOM in my rented shop premises. But when the plaintiff did not start the business of proposed ALANKAR SHOW ROOM till March 2008 and saved a legal notice thorough my advocate on stating therein all the facts as well as for the adjustment of the security deposit towards monthly rent of the shop premises and he also demanded to make payment of Rs. 50,000/- being the amount of arrear rent up to March The plaintiff received the said notice and also communicated reply denying all the facts. During cross-examination this witness has deposed that plaintiff came to take room on the his hotel on rent. In the ground floor Pankaj Jain was given in tenancy. On , at Cole Road, on behalf of plaintiff Pawan Jajotia given him a cheque. He denied the suggestion that the cheque was given as loan. This D.W. admitted that he issued NOC in respect of connection light, telephone. This D.W. Denied that he has taken as loan an amount of Rs. 51,000/- and accordingly he is entitled to get decree along with interest.

14 DW-2 Sri Mridul Bora, has deposed that he know the plaintiff and defendant of this case and in the year 2007 he was working as Manager in the Hotel of the defendant situated at Mancotta Road of Dibrugarh Town. The defendant has rented out many shops to different tenants the plaintiff along with his father Sri Surendra Kr. Jain came to defendant in the months of Sept 2007 and requested the defendant to let out him one room on the first floor of his building at Mancotta Road of Dibrugarh town for opening Alankar Show Room. On the plaintiff paid to the defendant Rs. 51,000/- by cheque as a salami for the shop premises and the rent of the said shop was fixed Rs. 11,000/- only per month. The plaintiff took the possession of the rented shop premises on the same day. The terms and condition of the rented shop was settled verbally between the plaintiff and defendant. After taking the shop premises on rent the plaintiff neither started his business nor leave and vacated the shop premises till the month of March The plaintiff did not pay any rent in respect of

15 15 the shop premises to the defendant since the date of taking the same on rent. The security amount of Rs. 51,0000/- paid to the defendant was refundable to the plaintiff at the time of leaving and vacating the suit premises as per verbal agreement. The plaintiff had taken the shop premises on the rent for opening the Alankar Show Room but he did not do so and the plaintiff never paid Rs. 51,000/- as loan amount to the defendant. During cross-examination, this witness has stated that he was working as Manager in the hotel of the defendant 3/4 years ago. At the time of giving money he was present in the hotel. Defendant told him that he received Rs. 51,000/-. This witness know the persons who gave money but he cannot say his name. The amount was told as advance against rent. Pointing to a person sitting in the Court this witness stated that as this person told them to vacate the room as there was some articles of the hotel in that room. This witness also stated that he cannot say about the transaction between the plaintiff and defendant he only know that Rs. 51,000/- was given as Advance and Rs. 11,000/- was given as monthly rent. This witness denied the suggestion that as he was Manager of

16 16 defendant and that is why, he deposed in his favour. 11. On this evidence the learned trial court passed vide its judgment and decree in favour of the plaintiff. Being aggrieved by the Judgment and decree the appellant has preferred this appeal on the grounds stated above. Now let us discuss the grounds taken by the appellant. In ground No. 1 and 2 appellant has neither specifically mentioned nor give any details as to why this judgment and decree is not maintainable either in law or in facts. In ground No. 2 no details has been given as to which procedure and what form is not followed in passing the judgment. In ground No. 3, the appellant has taken the ground that the learned Court below has not decided the issues of the suit in proper form and procedure. This ground is found to be repetition of ground No. 2. On perusal of the impugned judgment and order it is found that the learned Court below has properly decided the issues. In ground No.4, the learned Court below stated

17 17 that the Issue No. 1, 3, 4, 5 and 6 of the suit not in proper form and prescribed procedure of law. It is also stated in the ground No. 4 that the learned Court below without settling the issue No. 3, 4 and 5 individually and separately decided the same jointly in favour of the plaintiff. From perusal of the judgment it is found that the learned Court below has decided all the issues separately. Though issue No. 4 and 5 were decided together that does not vitiate the judgment. In ground No. 5, learned Court below stated that the issue No. 3 i.e. whether the defendant availed any loan from the plaintiff as alleged, has not discussed and settled in proper perspective form and manner. On perusal of the impugned judgment and decree, it is found that the learned Court below has specifically decided issue no. 3 and in the issue it has been specifically mentioned that the defendant failed to show that he issued any rent receipt. D.W. Discussed in cross that he has not issued any rent receipt. So, it is seen that the defendant has taken an amount as loan. In ground No. 6 and 8 appellant has stated that the learned Court below has not settled and discussed all

18 18 the issues independent and separately, on the basis of the evidence available on record. From perusal of the impugned judgment and decree it is found that the learned Court below has decided all the issues separately. Though the learned court below has not discussed the evidence adduced by both the parties elaborately, but he has applied his mind. From perusal of the evidence on record, it is found the plaintiff has taken loan from the defendant. The defendant could not prove that the suit amount was given as Advance for taking his room for opening jewellery shop. Moreover, the appellant has not shown as to how he is aggrieved by non-discussing the issues elaborately and the evidence on record. There is no hard and fast rule that all the materials of the evidence has to be reproduced in the judgment. What the requirement is learned Court need to application of its Judicial mind and come to the conclusion. In the instant case though the learned court below has not discussed the evidence on record elaborately but from perusal of the impugned judgment and decree it is found that to decide the issue properly he has applied his mind. Hence, this ground is also not sustainable. In ground No. 7, the appellant has taken that

19 19 two vital issues i.e., Issue No. (a) and (b) which has not been discussed. In issue no. 7(a) it is found that the suit is valued at Rs. 59,832/- and Court fee paid is Rs. 2,640/- and process fee is paid Rs From perusal of the plaint it is found that the suit is properly valued. Hence, this ground is also not maintainable. In ground No. 7(b) this court has taken for the first time in the appeal petition in the memo of appeal. This ground is not taken in the trial Court. To take a new ground unless it is shown to the Court as to why this ground could not be taken in the trial Court. Then the ground is taken to be valid then also this ground is not sustainable because the provisions of Money Lender Act will not be applicable in the instant case on view of the finding of Hon'ble Gauhati High Court in the case (Dimbeswar Barooah Vs. Rashik Chandra Hazarika, AIR 1974 Gau 62). Wherein it is clearly defined that '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 accounts of his loans, furnish copies of the accounts to the borrower; he may employ or get other person for the above purposes. A casual lender of

20 20 money is not expected to do all these. The Assam Money Lender Act 1934, as amended in 1969, defined Money Lender clearly and did not bring any change in the law, rather it clarified the meaning thereof which was implicit in the expression itself in the original act. As such, in the present case the provision of Money-lender's Act will not be applicable and question of framing on issues on that point does not arise. 12. It is a settled principal of law that civil case is decided on preponderance of probability. The plaintiff has given the amount of rupees by way of cheque, the defendant has admitted taking of money, up to this there is no dispute. The dispute is that the defendant has taken the money as advance of room rent. Even he did not file any set-off to adjust the amount. Thus, the appellant/defendant failed to prove by cogent convincing evidence. The appellant has failed to show any perversity in the judgment. 13. Now let us discuss the provision of law and decided case Section 99 of Civil Procedure Code which reads as follows : "99. No decree to be reversed or modified for error or

21 21 irregularity not affecting merits or jurisdiction.- No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder (or non-joinder) of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court" Section 99 of Civil Procedure Code puts a guard on the power of the appellate Court to interfere in the judgment appealed against to the effect that if the error banked upon by the appellants committed by the appellate Court while delivering the judgment in question does not affect the merits of the case, such judgment need not be interfered. To my mind, exception to this rule which would be the observance of principle of natural justice and or any other point having nexus thereto i.e. to the hearing. It may also admit non observance of a mandatory provision of law, however, would never admit any rule or provision which is either not mandatory or does not affect the merit of the case. Kiran Singh and otherss vs-chaman Paswan and others AIR 1954 SC Section 11 enacts that notwithstanding anything in Section 578 of the Code of Civil Procedure an objection that a Court which had no jurisdiction over a suit or appeal had exercised it by reason of over-valuator or under-valuation, should not be entertained by an appellate court, except as provided in the Section. Then follow provisions as to when the objections could be entertained, and how they are to be dealt with. The drafting of the Section has come in - and deservedly-for considerable criticism; but amidst much that is obscure and confused, there is one principle which stands out clear and conspicuous. It is that a decree passed by a court, which would have had no jurisdiction to hear a suit or appeal but for over- valuation or under-valuation, is not to be treated as, what it would be but for the Section, null and void, and

22 22 that an objection to jurisdiction based on over-valuation or under-valuation, should be dealt with under that Section and not otherwise. The reference to Section 578, now Section 99, C.P.C., in the opening words of the Section is significant. That Section, while providing that no decree shall be reversed or vaired in appeal on account of the defects mentioned therein when they do not affect the merits of the case, excepts from its operation defects of jurisdiction. Section 99 therefore gives no protection to decrees passed on merits, when the Courts which passed them locked jurisdiction as a result of over-valuation or under-valuation. It is with a view to avoid this result that Section 11 was enacted. It provides that objections to the jurisdiction of a Court based on over-valuation or under-valuation shall not be entertained by an appellants Court except in the manner and to the extent mentioned in the Section. It is a self-contained provision complete in itself, and no objection to jurisdiction based on over-valuation or under-valuation can be raised otherwise than in accordance with it. With reference to objections relating to territorial jurisdiction, Section 21 of the Civil Procedure Code enacts that no objection to the place of suing should be allowed by an appellate or revisional court, unless there was a consequent failure of justice. It is the same principle that has been adopted in Section 11 of the Suits Valuation Act with reference to pecuniary jurisdiction. The policy underlying Sections 21 and 99, C. P. C. and Section 11 of the Suits Valuation Act is the same namely, that when a case had been tried by a Court on the merits and Judgment rendered, it should not be liable to be reversed purely on technical grounds, unless it had resulted in failure of justice and the policy of the legislature has been to treat objections to jurisdiction both territorial and pecuniary as technical and not open to consideration by an appellate court,

23 23 unless there has been a prejudice on the merits. The contention of the appellants, therefore, that the decree and judgment of the District Court, Monghyr, should be treated as a nullity cannot be sustained under Section 11 of the Suits Valuation Act. In the instant case, the appellant is could not establish any of the ground which affect the merit of the case. hence, The judgment and decree needs no interference. ORDER Considering all, on above discussion this Money Appeal is dismissed with cost being devoid of merit. Judgment and decree of the trial court is affirmed. Prepare decree accordingly. Appeal is disposed of on contest. Given under my hand and seal of this Court on this the 3rd day of September Dictated and corrected be me. (A.B. Siddique), Addl. District Judge, Dibrugarh. Addl. District Judge, Dibrugarh

24 24 Money Appeal Case No. 1/2011 ORDER Both Parties are represented. Heard argument of both sides. Judgment is delivered in open court. Judgment is written in separate sheets and is kept with the record as part of proceeding, Considering all, on above discussion this Money Appeal is dismissed with cost being devoid of merit. Judgment and decree of the trial court is affirmed. Prepare decree accordingly. Appeal is disposed of on contest. Addl District Judge, Dibrugarh