Thakur Shambhusingh vs Rajendra Kumar
2022 Latest Caselaw 12862 MP

                                                             1
                                        IN THE HIGH COURT OF MADHYA PRADESH
                                                      AT INDORE
                                                            BEFORE
                                             HON'BLE SHRI JUSTICE VIRENDER SINGH
                                                 ON THE 26th OF SEPTEMBER, 2022

                                                FIRST APPEAL No. 535 of 2002

                                   BETWEEN:-
                                   1.      THAKUR SHAMBHOO SINGH, S/O SHRI
                                   DULESINGH RAJPUT, AGED        60 YEARS,
                                   OCCUPATION- AGRICULTURIST R/O VILLAGE
                                   TIKNIYA,   TEHSIL-  MALHARGARH,     DIST.
                                   MANDSAUR (M.P.)
                                   2.     KESHAR SINGH, S/O SHAMBHOO SINGH,
                                   AGED       35     YEARS,     OCCUPATION-
                                   AGR ICULTUR IST, R/O VILLAGE TIKNIYA,
                                   TEHSIL- MALHARGARH, DIST. MANDSAUR
                                   (M.P.)

                                                                                         .....APPELLANTS
                                   (BY SHRI BHAGWAN SINGH, ADVOCATE)

                                   AND
                                   RAJENDRA       KUMAR,     S/O     SHRI
                                   RAMESHCHANDRA PORWAL, AGED 29 YEARS,
                                   OCCUPATION-       MONEY        LENDER
                                   (BUSINESSMAN),   R/O  VILLAGE-LASUDIA,
                                   TEHSIL- MALHARGARH, DIST. MANDSAUR
                                   (M.P.)

                                                                                        .....RESPONDENT
                                   (BY SHRI DIVYANSH LUNIA, ADVOCATE )

                                 T h is appeal coming on for orders this day, t h e cou rt passed the
                           following:
                                                            JUDGMENT

1. The appellants have preferred this appeal against judgment and decree dated 19.08.2002 passed in Civil Suit No.3-B/2002 by District Judge, Mandsaur (M.P.), whereby the suit of the respondent/plaintiff for recovery of Rs.38,500/- along with interest @ Rs.2% per month i.e. @ 24% p.a., has been decreed.

2. The relevant facts, in brief, are that the respondent Rajendra Kumar Signature Not Verified Signed by: MUKTA CHANDRASHEKHAR KOUSHAL Signing time: 28-09-2022 12:06:40

filed a civil suit alleging that the appellants Shambhoo Singh and Keshar Singh are father and son. They approached him to borrow Rs.38,500/- with interest @ Rs.2% per month. The respondent agreed to credit the amount. Both the appellants received money on the same date i.e. 26.12.1997. They both agreed to execute a promissory note but, the said promissory note was signed only by son Keshav Singh/appellant No.2. Relying on the request of father Shambhoo Singh/appellant No.1 that he is an old man and all the family affairs are being dealt with by his son, so, let him sign the promissory note. The respondent didn't insist upon to get it signed by him (Shambhoo Singh). When the money credited was not returned even after verbal reminder, the respondent issued a

legal notice which went unanswered, therefore, he filed a suit for recovery of Rs.66,000/- (principal Rs.38,500/- + interest @ 24% p.a.).

3. The suit was contested by the appellants with complete denial. The alleged transactions between the parties and execution of promissory note were completely denied but it was admitted that some adjustment of accounts was pending between the parties and after settlement of those accounts, Shambhoo Singh executed a promissory note. Later on, that amount was also settled by Shambhoo Singh through his son Keshar Singh, who refunded Rs.23,000/- to the plaintiff/respondent on account of complete settlement between the parties and consequently, nothing remained due towards him. After settlement of that old account, the appellants never borrowed money from the respondent and had never executed a promissory note. On these grounds, the appellants prayed dismissal of the suit.

4. Considering the pleadings of both the parties, the Trial Court framed following issues and recorded its finding before them:-

Signature Not Verified Signed by: MUKTA CHANDRASHEKHAR KOUSHAL Signing time: 28-09-2022 12:06:40

okn iz'u fu"d"kZ 1- D;k oknh us izfroknhx.k dks 38500 :i;k fn;s ftldk gkW izkesljh uksV izfroknh dz-2 us fu"ikfnr fd;k vFkok 2- D;k iwoZ ds lO;ogkj ds ckcn+ fu"ikfnr izkesljh ugha uksV esa izfroknh dz- 2 nOkkjk 23000 :i;s tek fd;s x;s mldh jlhn ds fu"iknu ds vk/kkj ij mDr QthZ izkesljh uksV rS;kj fd;k x;k A 3- D;k oknh dk izfroknhx.k ls nks :i;k izfrlSdMk gkW izfrekg O;kt dk vuqca/k gqvk 4- lgk;rk ,oa okn O;; okn O;;

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5. On appreciation of evidence, the Trial Court found that the transaction between the parties which was further supported by a promissory note executed by Keshar Singh, decreed the suit for principal amount along with interest @ Rs.1% per month, till the date of filing of the suit. Total amount decreed was Rs.52,250/-. Interest from the date of filing of the suit till the date of realization of money was granted @ Rs.0.5% per month.

6. The appellants have preferred this appeal on similar grounds which were taken before the Trial Court to contest the suit and the learned counsel

representing them argued on the same line that the alleged transaction had never taken place between the parties and promissory note was never executed by them therefore, the suit has wrongly been decreed .

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

Signature Not Verified

8. Before the Trial Court, the respondent/plaintiff Rajendra Kumar Signed by: MUKTA CHANDRASHEKHAR KOUSHAL Signing time: 28-09-2022 12:06:40

deposed on oath that both father and son, appellant No.1 and appellant No.2 approached him and borrowed Rs.38,000/- with interest @ Rs.2% per month. They also executed a promissory note which was signed by Keshar Singh in presence of his father Shambhoo Singh. On the request of appellant No.1 Shambhoo Singh that his son is taking care of all affairs of the family, the respondent didn't insist on signing the promissory note by Shambhoo Singh. Both the appellants got themselves examined before the Trial Court and they deposed that they never borrowed money from the respondent but Keshar Singh admitted his signature on the promissory note. In absence of any supporting document, the explanation submitted by both the appellants that at the time of settlement of some old transaction the plaintiff/respondent got a receipt signed from Shambhoo Singh is not reliable or acceptable. Therefore, the statement of the plaintiff/respondent supported by statement of independent witness Bhanwar Singh and further corroborated by promissory note bearing admitted signature of the appellant No.2 Keshar Singh, this Court finds that the Trial Court has not erred in arriving at a conclusion that Keshar Singh had borrowed money from the respondent/plaintiff.

9. This is not the case of the appellants that they refunded the money borrowed by them. The appellant No.1 Shambhoo Singh has not signed the promissory note but the Trial Court has held him responsible only on the ground that there were financial transactions between the parties since generations and the plaintiff has come with a case that, at the time of borrowing money, the father and the son had come together. His (appellant's) case is that there is no dispute between both of them. They both live together jointly therefore, they both were responsible for the transaction but in the considered Signature Not Verified Signed by: MUKTA CHANDRASHEKHAR KOUSHAL Signing time: 28-09-2022 12:06:40

opinion of this Court, this finding of the Trial Court is only based on an assumption. In absence of signature on the promissory note or receipt of appellant No.1 Shambhoo Singh, there is nothing on record which indicates that Shambhoo Singh had also borrowed money or agreed to the alleged borrowing by his son, therefore, the Trial Court erred in holding him responsible for the money borrowed by his son.

10. Since, upon appreciation of the evidence produced by the parties it has been rightly found proved that appellant No.2 had borrowed money, the suit has been rightly decreed against him but, in absence of signature, only on the basis of assumption, appellant No.1 cannot be held responsible for the money borrowed by his son therefore, the finding of the Trial Court needs modification to that extent.

11. In the result, the appeal is partly allowed. The finding of the Trial Court holding the appellant No.2 Keshar Singh responsible for repayment of money is upheld while, appellant No.1 Shambhoo Singh is exonerated from any responsibility to repay the money said to be credited by the respondent.

12. So far as the rate of interest is concerned, that issue has not been agitated before this Court therefore, this Court is not interfering in the finding of the Trial Court with that regard.

13. Thus, the appeal is partly allowed, decree is modified to the extent that appellant No.2 Keshar Singh shall pay the amount decreed by the Trial Court i.e. Rs.52,250/- along with interest decreed and cost allowed by the Trial Court.

14. With this modification. the appeal stands disposed of.

15. Decree be drawn up accordingly.

Signature Not Verified Signed by: MUKTA CHANDRASHEKHAR KOUSHAL Signing time: 28-09-2022 12:06:40

(VIRENDER SINGH) JUDGE MK/Bahar

Signature Not Verified Signed by: MUKTA CHANDRASHEKHAR KOUSHAL Signing time: 28-09-2022 12:06:40