Orissa High Court
From The Judgment Dated 28Th April vs Kuntala Dei & Others on 6 April, 2021
HIGH COURT OF ORISSA: CUTTACK.
FIRST APPEAL NO. 121 OF 1990
From the judgment dated 28th April, 1983 and decree dated 5th May, 1983
passed by Sri P.K. Panigrahi, Subordinate Judge, Jajpur in M.S. No. 3 of
1981.
......
Hemalata Panda @ Dibya & others ...... Appellants
-Versus-
Kuntala Dei & others ...... Respondents
For Appellants : Mr. Bhaktahari Mohanty,
Senior Advocate
M/s. D.P. Mohanty, R.K. Nayak,
R.N. Panda & S.C. Mohanty.
For Respondents : M/s. P.K. Dhal, A. Deo,
R.Ray, B.C. Ray &
P.K. Mohapatra.
(For R.Nos.1(a) to 1(g)
Mr. B.B. Bhuyan
(R. No.2)
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Date of Judgment : 06.04 .2021
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P R E S E N T:
THE HONOURABLE SHRI JUSTICE K.R. MOHAPATRA
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K.R. MOHAPATRA, J. This appeal under Section 96 of the Code of Civil
Procedure,1908 (for short 'C.P.C.') has been filed assailing the judgment
dated 28th April, 1983 and decree dated 5th May, 1983 passed by learned
Subordinate Judge, Jajpur in Money Suit No. 3 of 1981, whereby he
decreed the suit in favour of the Plaintiff holding that the Plaintiff is
entitled to recover Rs.5,950/- together with pendente lite interest and
future interest @ 6% per annum on the principal amount from the
defendants, who are jointly and severally liable to pay the decreetal
amount.
2. The Defendants filed this appeal on 11th August, 1983 along
with MJC No. 102 of 1983 under Order XLIV Rule 1 C.P.C. to prosecute
the appeal as indigent persons. The said application was rejected vide
order dated 28th March, 1990. Accordingly, this appeal has been
registered as such (F.A. No. 121 of 1990) and the appellants paid the
requisite court fees.
3. For the sake of convenience, parties are described as per their
status before learned trial court. The Defendants are Appellants and the
Plaintiff, namely, Pachei Nayak, is the Respondent No.1 in this appeal.
During pendency of the appeal, the Respondent No.1 died and his
successors have been substituted as Respondent Nos. 1(a) to 1(g) in his
place. The Plaintiff filed Money Suit No. 3 of 1981 for recovery of
Rs.5,950/- together with pendente lite interest and future interest at the
rate of 12% per annum from the Defendants.
4. The case of the Plaintiff before learned trial court was that the
property on which the claim of the Plaintiff rests belonged to common
ancestor, namely, Ananta. Hadibandhu was the son of Ananta. Both of
them are dead since long. The Defendant No.1 is the widow and
Defendant Nos. 2 to 6 are the sons and daughter of said Hadibandhu. On
23rd June, 1972, Ananta sold Ac.0.35 decimals to the Plaintiff by a
registered sale deed under Ext.9. On 25th June, 1973, Hadibandhu sold
Ac.1.17 decimals to the Plaintiff by a registered sale deed under Ext.10.
Again on 3rd August, 1973 and 24th August, 1973, said Hadibandhu sold
Ac.0.78 decimals to Bansidhar Panda and Siba Charan Panda vide
registered sale deeds under Exts.11 and 12 respectively. On 28th
November, 1973, said Hadibandhu again sold Ac.0.40 decimals to the
Plaintiff by means of a registered sale deed under Ext. 14. On 28th
February, 1975, the Plaintiff purchased Ac. 0.78 decimals from said
Bansidhar and Siba Charan as per the registered sale deed under Ext. 13.
Thus, the Plaintiff acquired a total extent of Ac.2.70 decimals of land
belonging to the family of Ananta and Hadibandhu during the period in
between 23rd June, 1972 and 28th February, 1975. After that, the Plaintiff
also purchased Ac.0.51 decimals from Arjun (Defendant No.2) on 28th
February, 1975 pursuant to registered sale deed under Ext. 15. While the
matter stood thus, the Plaintiff came to know that the aforesaid properties
purchased by him from the family of Ananta and Hadibandhu have been
mortgaged by Ananta and Hadibandhu with the Land Development Bank
as a collateral security for sanction of an agricultural loan of Rs.6,000/-.
When the Defendants did not repay the loan amount and the properties
were about to be sold in a public auction, the Plaintiff in order to save the
property repaid the loan amount in different phases. In total, he paid
Rs.5,450/- as per Ext.7 series and Rs.5,950/- as per Exts. 4 and 6 series
and obtained the money receipts from the Bank. In spite of repeated
requests, the Defendants did not pay the said amount to the Plaintiff,
which he paid to the Land Development Bank on their behalf. As the
payment made by the Plaintiff under Ext.7 series was barred by limitation
by the time the suit was filed, he confined his claim to Rs.5,950/- only.
The Defendant No. 6, who is the married daughter of
Hadibandhu, did not contest the suit and was set ex parte. The Defendant
Nos. 1 to 5 filed their written statement on the plea that since the time of
Ananta, the Plaintiff was enjoying the confidence of the family of
Defendants as a 'Mamaltakar' of the locality. In that capacity, the
Plaintiff had the opportunity to look after and manage the affairs of the
family of Defendants. The Defendants are illiterate and innocent persons.
Taking advantage of the same together with the fact that properties were
not recorded in the name of the Plaintiff by then, the Plaintiff incurred the
loan from the Land Development Bank in the name of Ananta and
Hadibandhu. Ananta and Hadibandhu were mere name lenders to the
said loan. Ananta and Hadibandhu executed the deed of mortgage in
favour of the Bank in good-faith. They had neither any idea of the loan
nor did they ever receive any amount from the Bank towards the loan.
Since the Plaintiff had incurred the loan for his personal requirement, he
repaid the loan and taking advantage of the situation, he filed the suit,
which is not maintainable in the eyes of law. Hence, they prayed for
dismissal of the suit.
5. Taking into consideration the rival pleadings of the parties,
learned Subordinate Judge, Jajpur framed the following issues:
1. Is the suit maintainable?
2. Has the Plaintiff cause of action to file the suit?
3. Is the Plaintiff entitled to the amount claimed
from the Defendants?
4. To what relief, if any, the Plaintiff is entitled?
6. In order to substantiate their respective cases, the Plaintiff
examined three witnesses out of whom P.Ws. 1 and 3 are the officers of
Land Development Bank. The Plaintiff examined himself as P.W.2.
The Plaintiff also exhibited documents, marked as Exts. 1 to 21, in
support of his case. On the other hand, the Defendants examined four
witnesses out of whom D.W.1 is the Defendant No.1 and D.W.2 is the
Defendant No.2. D.W. 3 was an attesting witness to Ext.1, i.e. loan bond
dated 19th January, 1970 executed by Ananta and Hadibandhu. D.W. 4
is an attesting witness to Exts. 11 and 12 by which Hadibandhu sold the
land to Banshidhar and Siba Charan. The Defendants also exhibited
certain documents in support of their case marked as Exts. A and B.
Learned Subordinate Judge taking into consideration the rival
contentions of the parties as well as the materials available on record
passed the impugned judgment and decree, which are under challenge in
this appeal.
7. On the date of hearing of the appeal, none appeared on behalf
of the Respondents. As such, this Court proceeded with the hearing of
the appeal in their absence.
8. Mr. Mohanty, learned counsel for the Appellants submitted
that in the facts and circumstances of the case, learned trial court ought
to have held the sale deeds executed by Ananta and Hadibandhu to be
sham and fraudulent transactions and the Plaintiff had acquired no title
under the said sale deeds. The Appellants (Defendants) have already
filed T.S. No. 176 of 1980, which is pending before learned Civil Judge
(Junior Division), Jajpur, for declaring said sale transactions to be null
and void. Thus, learned trial court ought to have stayed the proceedings
of the Money Suit awaiting disposal of T.S. No. 176 of 1980 in exercise
of power under Section 10 of the C.P.C. He further submitted that since
the Plaintiff had incurred the loan and repaid it, the Defendants are not
liable to pay the decreetal amount to the Plaintiff, more particularly
when the Defendants had never received a single pie from the Land
Development Bank out of the sanctioned loan amount. The Plaintiff had
knowledge about the loan incurred at the time of purchase of the suit
land by him. Thus, the liabilities in respect of the suit land ought to have
been saddled on the Plaintiff and the Defendants are not liable to pay the
said loan amount. That apart, the suit is barred by limitation. Learned
trial Court without considering these material aspects from its proper
perspective passed the impugned judgment. As such, the same is not
sustainable in the eyes of law. He, therefore, prayed that the impugned
judgment and decree are liable to be set aside.
9. Heard Mr. Mohanty, learned counsel for the Appellants and
perused the materials available on record.
10. The issue of limitation raised by the Defendants-Appellants is
not sustainable in view of the fact that Exts. 4 and 6 by which the
Plaintiff repaid the loan amount to the tune of Rs.5,950/- were issued in
between 20th June, 1978 and 28th June, 1978 (Exts. 4 to 4(b)) and the suit
(M.S. No. 3 of 1981) was filed on 12th January, 1981. Thus, the suit is
well within the statutory period and is not barred by limitation.
11. The next question arises as to whether the sale deeds executed
by Ananta and Hadibandhu in between 23rd June, 1972 to 28th February,
1975 (Exts. 9 to 15) are sham and nominal transactions and were
obtained fraudulently as alleged by the Defendants. The allegation of
fraud must be specifically pleaded and proved by adducing evidence to
that effect. On perusal of the plaint, no specific allegation of fraud
appears to have been pleaded. The only allegation made in the plaint in
that regard is that the Plaintiff had good relationship and acquaintance
with the family of the Defendants as a 'Mamaltakar' and taking
advantage of such relationship and the innocence of the Defendants, the
sale deeds were executed. From the evidence adduced by the
Defendants, it appears that the Defendant No.1 (D.W.1), the widow of
Hadibandhu, had no knowledge about the transactions in question. The
Defendant No.2, who had executed the sale deed (Ext. 15) in favour of
the Plaintiff on 28th February, 1975 does not utter a single word either
about the alleged fraud or that the transaction was a nominal one. D.W.
4 is an attesting witness to the sale deeds under Exts. 11 and 12 executed
by Hadibandhu in favour of Banshidhar and Siba Charan from whom the
Plaintiff purchased the land vide Ext. 13. D.W. 6 does not utter a single
word, which would suggest that the transactions in question were
fraudulent, nominal or conclusive one. There is no material on record to
come to a conclusion that in fact, the sale transactions as per Exts. 9 to
15 are sham transactions and were nominal one. Hence, the contention
of Mr. Mohanty, learned counsel for the Appellants is without any basis.
12. Mr. Mohanty, learned counsel for the Appellants further
raised an issue to the effect that Ananta and Hadibandhu were mere
name lenders to Ext.1 and the loan amount was, in fact, received by the
Plaintiff and not by said Ananta and Hadibandhu. In support of his case,
he relied upon the testimony of D.W.3, who was an attesting witness to
Ext.1, executed on 19th January, 1970. In his deposition, he has testified
that he became an attesting witness to Ext.1 on the request of the
Plaintiff. The solitary statement made by D.W.3 is not supported by any
other material. Even if for the sake of argument, it is assumed that D.W.3
became an attesting witness to the Ext.1 at the instance of the Plaintiff,
that by itself is not sufficient to come to a conclusion that the loan
amount was received by the Plaintiff and not by Ananta and
Hadibandhu, as alleged. On the other hand, the Plaintiff relied upon
Exts. 1 to 7, which are documents relating to loan transactions and were
produced by P.Ws.1 and 3, who are officials of the Land Development
Bank. The documents marked as Exts. 1 to 7 clearly establishes that the
loan in question was sanctioned in favour of Ananta and Hadibandhu
who executed Ext.1 by mortgaging the land purchased by the Plaintiff. It
is well established that Exts. 1 to 7 are produced from the custody of the
Bank. Ext. 8 is an application dated 26th June, 1979 made by the
Plaintiff to the Sale Officers of Bank seeking permission to deposit
Rs.2,000/- towards the part satisfaction of the loan amount and further
seeking four to eight days time to deposit the balance amount. The said
application under Ext. 8 clearly shows that consequent upon failure on
the part of the Plaintiff to repay the loan amount, the Plaintiff made such
an application for repayment of the loan amount to save the property.
No rebuttal evidence has been adduced by the Defendants to disbelieve
the same. Thus, it is clearly established that the loan amount was, in
fact, received by Ananta and Hadibandhu and for non-payment of the
loan amount, the properties were going to be sold in public auction for
which the Plaintiff in order to save the property made an application
under Ext.8. As such, the contention raised by Mr. Mohanty, learned
counsel for the Appellants to the effect that the loan amount was
received by the Plaintiff is not believable, more particularly when the
loan transaction was made much prior to the sale transactions under
Exts.9 to 15.
13. The next question that arises for consideration is whether
learned trial Court should have stayed further proceedings of the present
suit and waited till disposal of T.S. No. 176 of 1980 filed by the
Defendants for setting aside the aforesaid sale transactions. Suffice it is
to say that no prayer under Section 10 of the C.P.C. was made by the
Defendants to stay the further proceedings of the present suit on the
ground of pendency of T.S. No. 176 of 1980. Further, the result of the
suit if decreed in favour of the Defendants will not influence the
impugned judgment and decree, as the issue involved in the present suit
is with regard to recovery of the loan amount paid by the Plaintiff on
behalf of Ananta and Hadibandhu, who had incurred the loan. Thus, the
question of stay of further proceedings of the present suit awaiting
disposal of T.S. No. 176 of 1980 does not arise at all.
14. In that view of the matter, I find no infirmity in the impugned
judgment and decree.
15. Accordingly, this appeal being devoid of any merit stands
dismissed. Parties shall bear their own cost.
16. Registry is directed to send back the L.C.R. forthwith to the
trial Court.
.................................
K.R. Mohapatra, J.
Orissa High Court, Cuttack.
Dated the 6th April, 2021/bks
