Babu vs Nahtiya
2023 Latest Caselaw 3967 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. 1118 of 2022

                           BETWEEN:-
                           BABU S/O KAMLA, AGED ABOUT 45
                           YEARS, OCCUPATION: AGRICULTURE,
                           R/O UMRADARA, TEHSIL MEGHNAGAR,
                           DISTRICT JHABUA. (MADHYA PRADESH)
                                                                                                               .....APPELLANT
                           (BY SHRI SHIV KUMAR GOLWALKAR - ADVOCATE)


                           AND
                           NAHTIYA S/O MALJI DAMORE, AGED
                           ABOUT     42  YEARS,   OCCUPATION:
                           BUSINESS AND AGRICULTURE, R/O
                           UMRADARA,    TEHSIL    MEGHNAGAR,
                           DISTRICT JHABUA. (MADHYA PRADESH)
                                                                                                             .....RESPONDENT
                           (BY SHRI SHAILENDRA SHRIVASTAVA - ADVOCATE)

                           .................................................................................................................
                           Reserved on              : 09.01.2023
                           Pronounced on : 14.03.2023
                           ................................................................................................................
                                    This petition having been heard and reserved for orders, coming
                           on for pronouncement this day, the court passed the following:


Signature Not Verified
Signed by: NEERAJ
SARVATE
Signing time: 14-03-2023
17:38:21
                                                               2
                                                        JUDGMENT

1. This appeal under Section 100 of the CPC has been preferred by defendant/appellant against the judgment and decree dated 06.04.2022 passed in Civil Appeal No.6/2020 by the IInd Additional District Judge, District Jhabua reversing the judgment and decree dated 30.01.2020 passed in Civil Suit No.2-B/2018 by the Additional Judge, Thandla to the Court of Civil Judge, Class-II, Thandla, District Jhabua and decreeing the claim of plaintiff/respondent for refund of a sum of Rs.1,30,000/- along with interest @ 6% per annum from 02.05.2015 upto the date of recovery.

2. As per plaintiff, he and defendant are known to each other. The defendant was in need of money hence plaintiff advanced a sum of Rs.1,30,000/- to him on 02.05.2015 on interest @ 5% per month. An ikrarnama for repayment of loan was also executed between the parties in presence of witnesses. The defendant had promised to repay the amount to plaintiff within six months. However neither did he return the amount nor paid any interest to the plaintiff despite repeated demands by him and despite issuance of a notice dated 11.09.2017 to him in that regard. The plaintiff hence instituted the present claim against the defendant for refund of a sum of Rs.1,30,000/- along with interest.

3. Defendant contested the plaintiff's claim by filing his written statement submitting inter alia that plaintiff never had any capacity to loan any amount to him, that he has never taken any loan from the

Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 14-03-2023 17:38:21

plaintiff, that the claim is barred by provisions of the Money Lending Act, that the document dated 02.05.2015 is neither legal nor was executed by him and is forged and that he is not liable to repay any amount to plaintiff.

4. The trial Court held that the stamp on which the document Ex.P/1 dated 02.05.2015 has been executed was not purchased by defendant, that plaintiff has not proved that he was capable of advancing a sum of Rs.1,30,000/- to the defendant, that no license has been produced by plaintiff to show that he is entitled to enter into transaction of money lending and that he has not proved that he had advanced a sum of Rs.1,30,000/- to the defendant. On such findings plaintiff's claim was dismissed.

5. In appeal by plaintiff the said findings and the judgment and decree have been reversed by the lower appellate Court upon recording findings to the effect that from the oral as well as the documentary evidence adduced by plaintiff he has proved that on 02.05.2015 he had advanced a sum of Rs.1,30,000/- to the defendant who had executed a document in his favour agreeing to repay the loan amount with interest and that defendant has failed to repay the said amount despite requests by plaintiff in that regard.

6. Learned counsel for the defendant/appellant has submitted that the impugned judgment and decree is illegal and contrary to law. Plaintiff by way of his evidence has totally failed to prove that he had

Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 14-03-2023 17:38:21

advanced a sum of Rs.1,30,000/- to the defendant. He has also not proved that any document was executed by defendant in his favour. The defendant had categorically denied execution of the said document 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 document which he has totally failed to discharge. At the time when the said document was tendered in evidence a specific objection was raised by defendant as regards its admissibility which was not decided by the trial Court then itself and was deferred which was legally impermissible. Objection as regards admissibility of the document has to be decided at the very stage on which it is raised and cannot be deferred for decision. The plaintiff has not produced any document to show that he is registered under the Money Lending Act hence the claim in violation of the said Act was not maintainable. Reliance has been placed on the decision of this Court in Pawan Kumar Pathak V/s. Mohan Prasad 2015 (3) MPLJ 148.

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

8. For the purpose of proving payment of Rs.1,30,000/- by him to the defendant, plaintiff has examined himself and his witnesses namely Moji and Sushiya, who are not only witnesses to the Ikrarnama/promissory note dated 02.05.2015 (Ex.P/1) but are also witnesses to the transaction of advancement of amount by plaintiff to

Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 14-03-2023 17:38:21

the defendant. From their evidence it has been categorically proved by plaintiff that the amount of Rs.1,30,000/- 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 him he has proved advancement of Rs.1,30,000/- by him to defendant. The case as set up by plaintiff of having advanced the amount in question to the defendant hence stands proved by him.

9. The witnesses to the promissory note have categorically proved its execution by the defendant. Nothing could be brought out in their cross-examination to discredit their testimony. They have categorically stated that plaintiff advanced the amount in question to the defendant in their presence who signed upon the promissory note in their presence. Their statements are reliable, trustworthy and inspire confidence hence have rightly been believed by the lower appellate Court. The contention of defendant 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 handwriting expert for proving that the signatures on the documents are not his. As execution of the document was proved by plaintiff, 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

Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 14-03-2023 17:38:21

failed to do.

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. In any case the defendant upon receiving any 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 trial Court had thereafter stopped cross-examination of plaintiff and had adjourned the matter for decision upon the said objection. Though the objection was not decided that day itself, the same was eventually decided on 07.08.2019 and it is only thereafter that the trial Court proceeded with cross-examination of plaintiff. Even in the case of Pawan Kumar Pathak (supra) it has been held that the question as to admissibility of document has to be determined at the earliest possible opportunity. The trial Court has also decided the objection at the earliest opportunity and from the time of objection having been raised upto the time of decision on the objection, no substantial proceedings had taken place and the case had been simply adjourned for decision on the objection. It hence cannot be said that the trial Court has not determined the question as

Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 14-03-2023 17:38:21

regards admissibility of the document in accordance with law. The objection raised by defendant was duly considered and rejected by the trial Court by order dated 07.08.2019 by holding the document dated 02.05.2015 to be sufficiently stamped. A perusal of the said order shows that the trial Court has not committed any illegality in holding the document to be inadmissible in evidence.

12. Thus in view of the aforesaid discussion I do not find any illegality committed by the lower appellate Court in setting aside the judgment and decree passed by the trial Court and decreeing the claim of plaintiff. The findings as had been recorded by the trial Court were purely based upon surmises and conjunctures and were not based upon facts and record of the case and were beyond the evidence brought on record by the parties and have rightly been set aside by the lower appellate Court. The findings arrived at by the lower appellate Court are based upon due appreciation of the oral as well as documentary evidence available on record and no error or perversity in the same has been found. No substantial question of law arises for determination in the appeal which is consequently dismissed in limine.

(PRANAY VERMA) JUDGE

ns

Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 14-03-2023 17:38:21