Bombay High Court
Hirabai Sahadu Sonawane And ... vs Ravi Vishwanath Dethe on 16 April, 2016
Bench: T.V. Nalawade
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 167 OF 2015
1. Smt. Hirabai Sahadu Sonawane
Age : 47 Yrs., Occ. Household,
R/o : Himalayacha Mala,
Solapur road, Ahmednagar,
Dist. : Ahmednagar.
2.
igSandip Sahadu Sonawane
Age : 36 Yrs., Occ. Service,
R/o : Himalayacha Mala,
Solapur road, Ahmednagar,
Dist. : Ahmednagar. ..... APPELLANTS
V E R S U S
Ravi Vishwanath Dethe
Age : 47 Yrs., Occ. Labour,
R/o : At Post : Shendi,
Tq. Nagar, Dist. Ahmednagar. ..... RESPONDENT
.....
Mr. N.V.Gaware, Advocate for Appellants.
Mr. K.D.Bade Patil, Advocate for Respondent.
.....
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CORAM : T.V.NALAWADE, J.
DATE OF JUDGMENT : 16/04/2016
JUDGMENT :
1. The Appeal is filed against the Judgment
and Decree of R.C.S. No. 631/2003 which was pending in
the Court of the Civil Judge [Sr.Division], Ahmednagar
and also against the Judgment and Decree of R.C.A. No.
385/2014 which was pending in the District Court,
Ahmednagar. The Suit filed by present respondent for
recovery of money is decided in his favour. Both sides
are heard.
2. It is the case of respondent/plaintiff that
defendant Nos. 1 and 2 were in need of money and due
to previous acquaintance, they approached him and
requested for hand loan of ` 48,000/-. Defendant No. 2
is son of defendant No. 1. It is contended that on
07/10/2002, plaintiff gave hand loan of ` 48,000/- to the
defendants and they promised to return the money when
demanded back by the plaintiff. It is contended that on
stamp paper of ` 20/-, the agreement was written and the
document was also used as receipt and the amount was
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paid to defendant Nos. 1 and 2 by the plaintiff. It is
contended that as the plaintiff was in need of money, he
asked the defendants to return the money and ultimately
notice was also given on 22/08/2003, but the defendants
did not make repayment of money, so cause of action
took place for the Suit. In the Suit, he had prayed for
recovery of amount and interest @ 18 % per annum.
ig The defendants filed joint written statement
and contested the matter. They contended that one
litigation was going-on between the father of plaintiff and
mother of defendant No. 1 in respect of agricultural land
and in that connection plaintiff had obtained signatures
of defendant Nos. 1 and 2 on one stamp paper. It is
contended that the stamp paper was blank and that
stamp paper is mis-used by the plaintiff. It is contended
that no money was taken as hand loan and they are not
liable to give anything to the plaintiff.
4. Issues were framed on the basis of aforesaid
pleadings. Both sides gave evidence. Plaintiff examined
himself and he examined one Advocate Mr. Avhad, in
whose presence the document was executed. One Sk.
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Ayub, who was working as clerk with the said Advocate is
examined as scribe of the document. These 3 witnesses
have given evidence as per the aforesaid contentions
made in the plaint. The said document is exhibited in
their evidence.
5. Defendant No. 1 has given evidence in
rebuttal. In the pleading and in the evidence, she has
admitted the execution of document though she
contended that the signature was obtained on blank
stamp paper. One witness Rajesh is examined, but his
evidence does not show that he was present when the
document was executed. Notice given through Advocate
is duly proved as Exh. 41 and the acknowledgement
receipt is also produced to show that the notice was
served on defendant No. 1. This notice was not replied
by the defendants.
6. The disputed document show that there is
signature of defendant No. 1 on the document and that
signature was put after fixing revenue stamp at the place
of the signature. Thus, the document was also to be used
as a receipt of the amount. There is substantive evidence
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of aforesaid 3 witnesses examined by the plaintiff to
prove that the amount of ` 48,000/- was actually handed
over to the defendants. Defendant Nos. 1 and 2 have
filed joint Written Statement and they have come with
the case that they were together when signatures were
put on the document. On the document, there is no
signature of defendant No. 2, but in view of the defence
taken of aforesaid nature, the Courts below have held
that both the defendants are liable to pay the amount
mentioned in the document. It appears that the
document is treated as bond and the Suit is decreed on
the basis of this document and oral evidence.
7. In view of the nature of defence taken by the
defendants and as there is no plausible explanation for
execution of such document, the Courts below have
decided the Suit against the defendants. The Courts have
believed the witnesses examined by the plaintiff. The
findings given are question of facts and there are
concurrent findings. No substantial question of law as
such is involved in the matter. No probability is created
by the original defendants of any kind due to which other
inference could have been drawn. Thus, it is not possible
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to interfere in the decision given by the Courts below and
the Appeal stands dismissed. In view of dismissal of the
Second Appeal, C.A. No. 4416 of 2015 does not survives
and stands disposed of.
[T.V.NALAWADE, J.]
KNP/S.A. 167.2015 - %5BJ%5D .odt
