Shri Maroti Konduji Khandare vs Shri Tanaji Kadtuji Admane
2016 Latest Caselaw 1087 Bom

                                                        1                         sa467.15.odt

              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        NAGPUR BENCH AT NAGPUR




                                                                                        
                            SECOND APPEAL NO.467/2015




                                                                
          Shri Maroti Konduji Khandare,
          aged 48 years, Occ. Pensioner,
          r/o Washim, Tq. Dist. Washim.                          .....APPELLANT




                                                               
                                   ...V E R S U S...

          Shri Tanaji Kadtuji Admane,
          aged 62 years, Occ. Cultivator,




                                                
          r/o Jodhagavhan, Tq. Malegaon,
          Dist. Washim.       ig                                 ...RESPONDENTS

     -------------------------------------------------------------------------------------------
     Mr. T. G. Bansod, Advocate for appellant.
                            
     Mr. S. A. Mohta, Advocate for respondent.
     -------------------------------------------------------------------------------------------
                                                  CORAM:- A. B. CHAUDHARI, J.
                                                  DATED :- 01.04.2016
      

     J U D G M E N T

1. Heard. Admit on the following substantial question of

law.

(i) Whether the lower appellate Court committed error in reversing the judgment of the trial Judge who had passed the money decree in the sum of

Rs.60,000/- against the respondent-defendant, the judgment of the appellate Court being perverse and not based on evidence? ...Partly affirmative.

2. In support of the appeal, Mr. Bansod, learned counsel

for the appellant submitted that the trial Judge has believed the

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oral as well as documentary evidence rendered by the appellant-

plaintiff so also Exh.-22, Usanwar Chitti, which recites payment of

Rs.60,000/- to the respondent. According to him, the lower

appellate Court has recorded contrary finding inasmuch as it has

recorded that there was no evidence to show that the appellant

was doing any money lending business as such and that is based

on the documents from the office of Assistant Registrar,

Cooperative Societies empowered under the Maharashtra Money

Lenders Act. Mr. Bansod, therefore, submitted that the lower

appellate Court having recorded a finding in his favour, there was

no reason to interfere with the judgment and decree made by the

trial Judge. Pointing out the reasons recorded by the lower

appellate Court, he submitted that the lower appellate Court

committed fallacy on reasoning by reading Exh.-41 and Exh.-46,

the statements recorded by the Assistant Registrar, Cooperative

Societies, though those persons were never examined before the

Court. Then there was no other evidence to show that the

appellant was involved in doing money lending business. In fact,

the appellant was not doing money lending business and that is

the finding of fact recorded by both the courts below concurrently,

still on the basis of those two statements Exh.41 and Exh.46, the

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lower appellate Court reversed the judgment of the trial Court.

He, therefore, submitted that the judgment and decree passed by

the trial Judge deserves to be restored.

3. Per contra, Mr. Mohta, learned counsel for the

respondent, submitted that there is an evidence tendered by his

client to prove that he had taken the amount of Rs.20,000/- and

had repaid the cash amount. According to him, merely because

the evidence of brother was tendered, the trial Judge rejected his

evidence. The law does not necessarily prescribe that the evidence

of interested witnesses should always be rejected without making

any assessment thereof. He, therefore, submitted that the fact that

Rs.20,000/- was repaid was fully established and, therefore, the

judgment of the lower appellate Court is legal, correct and proper

and need no interference.

4. Heard learned counsel for the rival parties. Perusal of

the document Exh.-32-Usanwar Chitti, shows that the amount of

Rs.60,000/- was lent to the respondent. The document nowhere

shows that the entry of transaction as money lending transaction.

The signature on the document has been admitted by the

respondent-defendant. It is not possible to accept the statement

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made by Mr. Mohta, learned counsel for the respondent, that the

contents of Usanwar Chitti were not proved because there is

evidence of the appellant for proving the contents of the document

Exh.-32 and both the Courts having concurrently held that the

appellant was not doing money lending business, I do not think

that there was any plausible reason for the appellate Court to

reverse the finding of fact recorded by the trial Judge about

payment of Rs.60,000/- to the respondent-defendant.

5. The next submission made by Mr. Mohta, learned

counsel for the respondent, is that in Exh.-30 enquiry report, the

appellant had admitted that he had not got that Usanwar Chitti

and still he filed the suit on the basis of the Usanwar Chitti in

question. The reason is that the said document Exh.-30 or

statement made before the Officer does not specifically relate to

the transaction in question and mere general language that he had

not taken any Usanwar Chitti in his writing takes the Court

nowhere. That is all the more so in view of the document Exh.-

32, which has been filed and proved on record. I, therefore, hold

that the lower appellate Court committed error in reversing the

finding of fact about the payment of Rs.60,000/- under Exh.32.

5 sa467.15.odt

6. The next aspect of the matter is about the evidence that

an amount of Rs.20,000/- was paid back to the appellant-plaintiff.

It is true that brother of the respondent was an interested witness

but then that cannot amount to reject the evidence of the

interested witness if the evidence is otherwise plausible. The

brother of the respondent-defendant has deposed sale of 4 Acres of

the property of respondent on making repayment of Rs.60,000/-

to the plaintiff. His evidence has not been shattered in the cross-

examination and there is no reason why his evidence should not

be accepted. The Courts below have unnecessarily rejected his

evidence only because he is brother of the respondent-defendant. I

do not think that is the correct legal position about appreciation of

the evidence of the interested witness. I, therefore, hold that the

respondent-defendant had proved that he had repaid Rs.20,000/-

to appellant-plaintiff. Thus, making an assessment of the amounts

to be paid is only Rs.40,000/-.

7. Mr. Bansod, leaned counsel for the appellant,

submitted that the amount of Rs.73,000/- has been deposited and

the said amount has been paid to the appellant also through the

execution proceedings. Having recorded the above finding, I think

the appellant would be entitled to return the amount of

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Rs.40,000/- only since I have held that the amount of Rs.20,000/-

was repaid back to the appellant-plaintiff. It is further submitted

that the while allowing the suit, the learned Civil judge Senior

Division, Washim has directed payment of interest at the rate of

9% p.a. Hence, further amount of Rs.5,000/- shall be paid to the

plaintiff by the defendant.

8. In that view of the matter, the present second appeal

will have to be partly allowed. Hence, I make the following order.

                            
                                      ORDER

            (i)            Second   Appeal   No.467/2015   is   partly
            allowed.
      


            (ii)           Judgment   and   order   dated   30.07.2015   in
   

Regular Civil Appeal No.94/2008 passed by District Judge-1, Washim is set aside.

(iii) The judgment an decree dated 13.07.2009

in Regular Civil Suit No.11/2007 passed Civil Judge Senior Division, Washim is modified as under:

"The appellant-plaintiff shall pay back

amount of Rs.28,000/- to the respondent within a period of four weeks from today."

JUDGE

kahale