Ashok vs Mukesh
2022 Latest Caselaw 16717 MP

                                                            1


                             IN THE HIGH COURT OF MADHYA PRADESH

                                                  AT I N D O R E
                                                       BEFORE
                                     HON'BLE SHRI JUSTICE PRANAY VERMA

                                            SECOND APPEAL No. 647 of 2021

                           BETWEEN:-
                           ASHOK S/O SHRI JAGANNATH JI,
                           AGED ABOUT 40 YEARS,
                           OCCUPATION: MAJDOORI,
                           MIRCHI BAZAR, GRAM SATWAS,
                           DIST. DEWAS (MADHYA PRADESH)
                                                                              .....APPELLANT
                           (BY SHRI DEEPAK BOURASI - ADVOCATE)

                           AND
                           MUKESH S/O SHRI MANGILAL,
                           AGED ABOUT 35 YEARS,
                           OCCUPATION: AGRICULTURE,
                           NAYAPURA, TEHSIL BAGLI,
                           DIST. DEWAS (MADHYA PRADESH)

                           (NONE)
                                 This appeal coming on for admission this day, the court passed

                           the following:

                                                 J U D G M E N T

(Delivered on 16.12.2022)

Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 16-12-2022 16:51:53

1. This appeal under Section 100 of the C.P.C. has been preferred by defendant/appellant against the judgment and decree dated 03.02.2021 passed in Civil Appeal No.14/2019 by the Ist Additional District Judge, Bagli, District Dewas modifying the judgment and decree dated 11.09.2018 passed in Civil Suit No.20-B/2017 by the Civil Judge, Class-II, Bagli, District Dewas and decreeing the claim of plaintiff/respondent for refund of a sum of Rs.80,000/- along with interest @ 6% per annum from 27.05.2015 upto the date of recovery.

2. As per plaintiff, he and defendant are relatives. The defendant was in need of money hence plaintiff advanced a sum of Rs.80,000/- to him on 27.05.2015 on interest at 2% per month. A promissory note was also executed between the parties in presence of witnesses. The defendant had promised to repay the amount to the plaintiff as soon as possible. However neither did he return the amount nor paid any interest to the plaintiff despite repeated demands by him and despite issuance of a registered notice dated 13.02.2017 to him which remained undelivered. The plaintiff hence instituted the present claim against the defendant for refund of a sum of Rs.80,000/- along with interest.

3. Defendant contested the plaintiff's claim by filing his written statement submitting inter alia that he was never in need of money and has never taken any amount from plaintiff and had not executed any promissory note in his favour, that he is not liable to repay any amount to plaintiff and that the claim is barred by virtue of Section 269SS of

Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 16-12-2022 16:51:53

the Income Tax Act and is also barred by the provisions of the Money Lending Act.

4. The Trial Court held that plaintiff has proved that he had advanced a sum of Rs.80,000/- to the defendant on 27.05.2015 on interest at 2% per month, that defendant had executed a promissory note in favour of plaintiff for securing return of the said amount, that he has not paid that amount to the plaintiff despite issuance of notice dated 13.02.2017 to him in that regard, that the said promissory note is not a forged document and that the claim is not barred by the provisions of the Money Lending Act. The said judgment and decree has been modified in appeal preferred by the defendant before the lower appellate Court only as regards rate of interest.

5. Learned counsel for the defendant/appellant submits that the impugned judgment and decree are illegal and contrary to law. The plaintiff by way of his evidence has totally failed to prove that he had advanced a sum of Rs.80,000/- to the defendant. He has also not proved that any promissory note was executed by the defendant in his favour. The defendant had categorically denied execution of the promissory note and had contended that the same is forged and he had never signed upon the same. The burden hence heavily lay upon the plaintiff to prove the genuineness and execution of the said promissory note which he has totally failed to do. The claim was barred by the provisions of Section 269SS of the Income Tax Act which aspect has

Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 16-12-2022 16:51:53

not been considered appropriately. The counsel for defendant had met with an accident hence could not appear before the trial Court which however illegally closed the right of defendant to cross-examine plaintiff's witnesses. The defendant hence has not been afforded adequate opportunity by the trial Court for defending his case which aspect has also not been properly appreciated by the lower appellate Court. Had the defendant been afforded due opportunity he would have clearly established that the promissory note in question is a forged document. It is hence submitted that the impugned judgment and decree deserve to be set aside.

6. I have heard learned counsel for the appellant and have perused the record.

7. For the purpose of proving payment of Rs.80,000/- by him to the defendant, plaintiff has examined himself and his witnesses namely Peerulal and Radheshyam, who are not only witnesses to the promissory note but are also witnesses to the transaction of advancement of amount by plaintiff to defendant. From their evidence it has been categorically proved by plaintiff that the amount of Rs.80,000/- was paid by him to defendant. Thus if for the sake of argument the promissory note as set up by plaintiff is excluded from consideration, then also from the oral evidence adduced by her he has proved advancement of Rs.80,000/- by him to defendant. Thus, the case as set up by plaintiff of having advanced the amount in question to the

Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 16-12-2022 16:51:53

defendant stands proved by him.

8. The amount was advanced by plaintiff to the defendant on 27.05.2015 and the promissory note was also executed between the parties that day itself. Thus the contention of defendant that the promissory note was executed after a period of two years is factually incorrect. The witnesses to the promissory note have duly proved its execution by the defendant. Hence, the contention of defendent of the said document being forged and fabricated and not having been executed by him is apparently false. Since execution of the document is proved from plaintiff's evidence, the burden shifted upon defendant to prove that the same is forged and was never executed by him. The defendant has however failed to prove the said fact and has not examined any hand writing expert for proving that the signatures on the document are not his. As execution of the document was proved by plaintiff by his oral evidence, the burden was not upon him to prove signatures of defendant on the same but it was for defendant to prove otherwise which he has failed to do.

9. Plaintiff had sent a notice to defendant on 13.02.2017 which was not delivered to him and was returned with the note that he has gone out indefinitely. It can hence be presumed that the said notice has been served upon the defendant. Even otherwise service of a notice prior to instituting a claim for recovery of the amount advanced by way of loan is not a pre-requisite and merely for absence of service of notice

Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 16-12-2022 16:51:53

plaintiff's claim cannot be defeated.

10. It is a solitary instance of advancement of loan by plaintiff to the defendant for which no license under the Money Lending Act was required by plaintiff. There is no evidence adduced by defendant to show that plaintiff is in the business of money lending and had advanced similar loans to different persons hence his contention that plaintiff was required to be registered under the Money Lending Act is without any merit. Likewise it was not mandatory for plaintiff to have advanced the sum to the defendant by way of cheque alone and it cannot be said that he could not have done the same by way of cash. The provisions of Section 269SS of the Income Tax Act are not applicable to the present facts. In any case, the defendant upon receiving loan amount from plaintiff cannot take shelter of such a hyper technicality.

11. Before the trial Court the defendant had raised an objection as regards the promissory note being deficiently stamped. The said objection was duly considered and rejected by the trial Court by order dated 27.04.2018 holding that the document is sufficiently stamped. A perusal of the said order shows that the trial Court has not committed any illegality in holding the said document to be admissible in evidence.

12. A perusal of proceedings of the trial Court shows that the defendant ever since the very inception had been totally negligent in

Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 16-12-2022 16:51:53

prosecution of his case and had been taking repeated adjournments firstly for filing of the written statement and thereafter for cross- examining plaintiff's witnesses. His right to cross-examine plaintiff's witnesses was eventually closed by the trial Court on 21.06.2018 observing that last opportunity on imposition of costs had already been granted to him earlier hence no further opportunity can be granted to him. It cannot be said that the trial Court has committed any illegality in closing the right of defendant to cross-examine plaintiff's witnesses.

13. Thus in view of the aforesaid discussion I do not find any illegality committed by the Courts below in decreeing the claim of plaintiff. The findings arrived at by them are based upon due appreciation of the oral as well as the documentary evidence available on record and no error or perversity in the same is found. The findings being findings of facts are not liable to be interfered with at the second appellate stage. No substantial question of law has been proposed by the appellant in the memo of Second Appeal. In any case, no substantial question of law arises for determination in this appeal which is consequently dismissed in limine.

(PRANAY VERMA) JUDGE ns

Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 16-12-2022 16:51:53