Sikkim High Court
Kuber Raj Rai vs Saran Thapa And Anr on 14 September, 2021
Bench: Bhaskar Raj Pradhan
THE HIGH COURT OF SIKKIM: GANGTOK
(Civil Appellate Jurisdiction)
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Single Bench: THE HON'BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
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R.F.A. No. 4 of 2019
Kuber Raj Rai,
Son of late P.M. Rai,
Aged about 57 years,
Resident of Pakyong,
P.O. and P.S. Pakyong,
East Sikkim. ..... Appellant
Versus
1. Saran Thapa,
Son of R.S. Thapa,
Resident of Middle Syari,
Near Central School,
P.O. & P.S. Gangtok, East Sikkim.
2. Ranjit Rai,
Son of Late K.B. Rai,
Resident of Namcheybong,
Rai Goan, P.O. & P.S. Pakyong,
East Sikkim. ..... Respondents
Appeal under Order XLI Rules 1 and 2 of
the Code of Civil Procedure, 1908.
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Appearance:
Mr. S.S. Hamal, Advocate for the appellant.
Mr. Sushant Subba, Advocate for the respondents no. 1 and 2.
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Date of hearing : 20.08.2021
Date of judgment: 14.09.2021
JUDGMENT
Bhaskar Raj Pradhan, J.
1. This is a regular first appeal against the judgment
and decree, both dated 28.02.2019, passed by the learned
R.F.A. No. 4 of 2019
Kuber Raj Rai vs. Saran Thapa and Another
District Judge, Special Division-I, Sikkim at Gangtok (the learned
District Judge), whereby the Money Suit No. 165 of 2017 (the
Money Suit) filed by Kuber Raj Rai, the appellant (plaintiff) was
dismissed. The Money Suit was filed on 26.10.2017 against the
two respondents, i.e., Saran Thapa (defendant no.1) and Ranjit
Rai (defendant no.2). For clarity, they shall be referred to as
plaintiff and defendants.
2. In the plaint, the plaintiff pleaded that in connection
with a civil work, i.e., "Mastic Alphabet and Repairing of Road
Surface, Drain, etc., in between Rangpo - Ranipool (018.500 kms)
under 13th Finance Commission during 2013-2014 of Government
of India, Office of the Central Public Work Department, Matigara,
Siliguri - 734001, Dist. Darjeeling" (the civil work), the defendants
had taken a loan of Rs.30,60,000/- from the plaintiff on various
dates through separate money receipts as detailed in paragraph
1 of the plaint. On 1.10.2014, the defendant executed a
document titled loan agreement (exhibit-5) in which they
acknowledged the receipt of Rs.30,60,000/- as loan amount from
the plaintiff and agreed to return it along with interest of
Rs.5,00,000/- on or before 14.11.2014. Inspite of the demands
and assurances, the defendants failed to pay the amount of
Rs.35,60,000/-. On 19.12.2014, the plaintiff sent a legal notice
demanding payment within 15 days of its receipt. The defendants
failed to comply with the legal notice. According to the plaintiff,
R.F.A. No. 4 of 2019
Kuber Raj Rai vs. Saran Thapa and Another
the cause of action for the suit first arose on 1.10.2014 when the
document titled loan agreement was made and thereafter on
14.11.2014, when the defendants failed to pay the sum of
Rs.35,60,000/- on expiry of fifteen days of the legal notice dated
19.12.2014 and continues till date. The plaintiff therefore prayed
for recovery of Rs.35,60,000/- from the defendants jointly and
severally for payment of interest @12% per annum on the said
amount and cost of the suit.
3. On 27.12.2017, the defendants filed their written
statements. They took various preliminary objections including
the maintainability of the suit. They pleaded that the plaintiffs
had not come with clean hands and had concealed material facts
trying to mislead the court. It is stated that the defendant no.1
used to work as an assistant to the plaintiff. The defendant no.2
was the plaintiff's cousin and a government employee by
profession. Whereas the plaintiff is a first-class contractor, the
defendants had neither knowledge or experience nor the required
documents and investment for pursuing contract works. The
defendant no.1 was employed by the plaintiff and the defendant
no.2 was sometimes approached by the plaintiff to help him with
his miscellaneous works for his ongoing contracts. The plaintiff
had promised the defendants verbally and in writing that in
return for helping him out the plaintiff would monetarily
compensate and reimburse them. It was asserted that the
R.F.A. No. 4 of 2019
Kuber Raj Rai vs. Saran Thapa and Another
plaintiff had himself undertaken the civil work and the
defendants had been asked to help the plaintiff. The defendants
had not taken any loan from the plaintiff and that, the four
money receipts were not executed against the loan taken by
them. The money receipts handed over by the plaintiff to the
defendants were for paying wages of labourers, payment to
suppliers and some paid to them as commission, compensation,
and reimbursement for their health. The defendants were made
to endorse on the loan agreement fraudulently, under coercion
and on misrepresentation. It was alleged that the plaintiff was
fraudulently trying to extort money from the defendants by
misusing the documents submitted by the defendants as security
with the plaintiff on good faith. The "suit" filed by the plaintiff
against defendant no.1 under section 138 and 142 of the
Negotiable Instrument Act, 1881 was rightly dismissed. The
defendant no.2 received the legal notice in utter shock and
thereafter, went to meet the plaintiff. The plaintiff apologetically
assured him that he meant no harm or any court litigation. After
proper verification of his fund account handled by the
defendants, the plaintiff issued a proper receipt to the defendants
discharging them of their liabilities.
4. On these pleadings, the learned trial court framed six
issues. The plaintiff (PW-1) examined himself, Sukman Tirwa
R.F.A. No. 4 of 2019
Kuber Raj Rai vs. Saran Thapa and Another
(PW-2) and Kamlesh Kumar Gupta (PW-4). The defendants
examined only themselves.
5. The learned District Judge held that the plaintiff had
put up a false case and that the defendants had not taken the
loan of Rs.30,60,000/-. The learned District Judge also held that
the four money receipts were not receipts for the loan as sought
to be made out. The learned District Judge further held that the
plaintiff had executed the undertaking (exhibit-A) agreeing to pay
Rs.70,00,000/- to the defendants in three instalments. The
learned District Judge held that the loan agreement dated
1.10.2014 (exhibit-5) was a sham document prepared at the
instance of the plaintiff for his convenience. It was held that the
plaintiff had issued the discharge certificate dated 29.12.2014
(exhibit-B) discharging the defendants of any liability, even if
there was any which they owed towards the plaintiff. In the
circumstances, the learned District Judge held that the suit was
not maintainable and the plaintiff was not entitled to any relief.
6. Mr. S.S. Hamal, learned counsel for the plaintiff,
vehemently argued that the judgment and decree of the learned
District Judge is perverse, expressly illegal, contrary to materials
on record and suffers from wrong appreciation of facts and law.
The observations about issues no. 2, 3 and 6 are incorrect and
contrary to material on record. It was urged that the learned
District Judge failed to appreciate that the respondent had not
R.F.A. No. 4 of 2019
Kuber Raj Rai vs. Saran Thapa and Another
denied the execution of the loan agreement dated 1.10.2014
(exhibit-5) or its content and that their only contention was that
it was executed by them under coercion, fraud and undue
influence. The learned District Judge failed to appreciate that
there was no connection between exhibit-A and exhibit-5 which
were exhibited at different times for different context. That,
exhibit-A was undated and contained unlawful consideration. It
was also urged that evidence which came in cross-examination
was not considered by the learned District Judge. Mr. S.S. Hamal
relied upon S. Bhattacharjee vs. Sentinel Assurance Co. Ltd.1.
7. During the pendency of the present appeal, the
appellant had filed I.A. no. 3 of 2021 on 1.3.2021 under Order
XLI Rule 27 read with section 151 of the Code of Civil Procedure,
1908 (CPC) (the application) for additional evidence, i.e.,
application of one Sonam Sherpa dated 17.5.2019 under the
Right to Information Act, 2005 to the office of the Central Public
Works Department; reply dated 17.05.2019 of the Public
Information Officer of the Central Public Works Department to
Sonam Sherpa and copy of the FIR dated 1.10.2019 lodged by
the plaintiff before the Station House Officer, Pakyong Police
Station bearing GD entry no. 24 dated 8.11.2019. The
defendants have filed their written objection to the said
application submitting that it is misconceived, not maintainable
1 AIR 1955 Calcutta 594
R.F.A. No. 4 of 2019
Kuber Raj Rai vs. Saran Thapa and Another
and unnecessary. It is also contended that allowing it would
cause prejudice to the defendants as the documents is sought to
be produced to fill up the lacuna in the case. In support of this
contention Mr. S.S. Hamal relies upon Union of India vs. Ibrahim
Uddin and Another2 and Uttaradi Mutt vs. Raghavendra Swamy Mutt3.
8. Mr. Sushant Subba, learned counsel for the
defendants, submits that under section 63 of the Indian Contract
Act, 1872 every promisee may dispense with or remit, wholly or
in part, the performance of the promise made to him, or may
extend the time for such promise, or may accept instead of it any
satisfaction which he thinks fit. Exhibit-B, therefore, in terms of
section 63 of the Indian Contract Act, 1872 rarely dispenses with
the performance in settlement of all the dues discharging the
defendants of all the liabilities.
9. Evidently, the plaintiff has based his case on two sets
of documents, i.e., the money receipts (exhibit-1 dated
18.06.2014, exhibit-2 dated 25.6.2014, exhibit-3 dated
21.6.2014 and exhibit-4 dated 30.6.2014) and loan agreement
dated 1.10.2014 (exhibit-5). The plaintiff also relies upon a
cheque for an amount of Rs.35,60,000/- dated 14.11.2014
issued by defendant no.2 in favour of the plaintiff (exhibit-11).
This cheque was examined by the learned Chief Judicial
2 2012 8 SCC 148
3 AIR 2018 SC 4796
R.F.A. No. 4 of 2019
Kuber Raj Rai vs. Saran Thapa and Another
Magistrate, East & North Sikkim at Gangtok, in its judgment
dated 3.10.2016, in a proceeding initiated by the plaintiff against
the defendant no.1 in Private Complaint Case No. 12 of 2015.
The learned Chief Judicial Magistrate found the case of the
plaintiff highly improbable and acquitted the defendant no.1
under section 138 of the Negotiable Instruments Act, 1881. The
money receipts states that the sum specified therein was received
from the plaintiff in connection with the civil work issued in the
name of contractor Bhaichung Bhutia. The money receipts are
signed by both the defendants. Sukman Tirwa (PW-2) and
Kamlesh Kumar Gupta (PW-4) are witnesses to exhibit-1. Indra
Prasad Rai and Sukman Tirwa (PW-2) are witnesses to exhibit-2
and exhibit-3. Sukman Tirwa (PW-2) and Deepraj Pradhan are
witnesses to exhibit-4. Indra Prasad Rai and Deepraj Pradhan
were not examined by the plaintiff.
10. According to the plaintiff, these money receipts
totalling to Rs.30,60,000/- were issued by the defendant no.1 for
cash received as a loan on various dates. Sukman Tirwa (PW-2)
as well as Kamlesh Kumar Gupta (PW-4) also stated that the
money receipts were for the loan given to the defendants by the
plaintiff. None of the money receipts specify that they were
receipts for the loan taken by the defendants. During his cross-
examination, the plaintiff admitted that the money receipts were
regarding payment made as per exhibit-A. Exhibit-A was a
R.F.A. No. 4 of 2019
Kuber Raj Rai vs. Saran Thapa and Another
document exhibited by the defendants and under the signature
of the plaintiff, who admitted signing it. It is also signed by the
defendants as well as two witnesses Indra Prasad Rai and Bijay
Chettri. Neither Indra Prasad Rai nor Bijay Chettri were
examined by the defendants. The contents of Exhibit-A reads
that the plaintiff had agreed to pay Rs.70,00,000/- to the
defendants for providing him the civil work. It was to be paid in
three instalments of Rs.6,00,000/- on 19.06.2014, Rs.5,00,000/-
on 24.6.2014 and the remaining Rs.59,00,000/- on the day of
site visit by the officials from CPWD, Matigara, Siliguri. If the
admission of the plaintiff regarding exhibit-A is to be considered,
then his version in the plaint was completely different.
11. On a reading of the plaint, it is evident that there was
some understanding between the plaintiff and the defendants
about the civil work. The plaint does not disclose for what
purpose such a huge amount of loan was taken by the
defendants nor the details of the cash transaction. The plaintiff
in his evidence on affidavit also does not enlighten on this
aspect. However, on reading the loan agreement (exhibit-5) filed
by the plaintiff there is a suggestion that after the plaintiff
decided to ask Bhaichung Bhutia to revoke the general power of
attorney dated 18.06.2014 purportedly given to him it was the
defendants who had agreed to execute the contract work.
However, neither Bhaichung Bhutia was examined, nor the
R.F.A. No. 4 of 2019
Kuber Raj Rai vs. Saran Thapa and Another
general power of attorney dated 18.6.2014 exhibited by the
plaintiff. Although, a series of paper trail seems to have been
created, except for the specific amounts mentioned in the
documents exhibited by the plaintiff as well as the defendants
there is no money trail of such huge amounts. As rightly
concluded by the learned District Judge there is certainly more
than meets the eye. The story of the plaintiff does not inspire
confidence. It is quite evident that the plaintiff has withheld
much more than what has been disclosed selectively to make out
a case. The pleadings in the plaint do not reflect the facts in the
same manner as in the documents exhibited by the plaintiff. If,
as admitted by the plaintiff, it is true that the money receipts
were regarding payments made as per exhibit-A, then the
plaintiff's case as put up in the plaint cannot be sustained. There
is a clear disconnect between the four money receipts (exhibits-1
to 4) and the loan agreement (exhibit-5). If the money receipts are
allowed to speak for itself the plaintiff's deposition seeks to
provide evidence to show that it was not meant to be money
receipts but loan documents which is impermissible. The plaintiff
desirous of the court to give judgment as to his legal right and
the defendants liability to pay the alleged loan amount must
prove on the existence of facts which he asserted in the plaint.
The plaintiff failed to do so. Therefore, although it is seen that
the defendants had signed the loan agreement (exhibit-5), this
court has no hesitation to uphold the findings of the learned
R.F.A. No. 4 of 2019
Kuber Raj Rai vs. Saran Thapa and Another
District Judge that the plaintiff has made out a false case by
claiming that he had paid the concerned amounts indicated in
the money receipts (exhibits-1 to 4) as loan. It is also quite clear
that the loan agreement (exhibit-5) is a sham document prepared
at the instance and for the convenience of the plaintiff as held by
the learned District Judge.
12. A perusal of the discharge certificate (exhibit-B)
exhibited by the defendant also supports the finding of the
learned District Judge about the loan agreement (exhibit-5) being
a sham document and the doubt it had on the case put up by the
plaintiff. The discharge certificate (exhibit-B) in the last
paragraph clearly states that the defendant no.2 had settled all
the dues on behalf of the defendants and that the plaintiff had
"............no more claims from them and hereby discharge them of
all their liabilities". The defendants in the written statements had
pleaded that on receipt of the legal notice, the defendant no.2
had approached the plaintiff who apologetically assured him that
he meant no harm and after verification of his fund amount
handled by the defendant issued exhibit-B discharging them of
their liabilities. The plaintiff in his evidence on affidavit deposed
that the discharge certificate (exhibit-B) is a manufactured, false
and forged document created by the defendants. During his
cross-examination, the plaintiff admitted his signature thereon
but volunteered to say that it was a blank document signed by
R.F.A. No. 4 of 2019
Kuber Raj Rai vs. Saran Thapa and Another
him. He also stated that Exhibit-B was not a genuine document;
it was not in his original letter pad and out of the three cell
phone numbers mentioned therein only the last number
belonged to him. The plaintiff also crossed examined the
defendants. The defendant no.1 admitted that exhibit-B was in
the custody of defendant no.2. He denied that exhibit-B was a
manufactured document. The defendant no.2 stated the facts as
narrated in the written statements about exhibit-B. He denied
the suggestion that exhibit-B was a manufactured document and
except the signature of the plaintiff, the rest of the contents was
filled by him. He also admitted that he did not know who filled
exhibit-B and where it was prepared. The defendant no.2
however, volunteered to say that exhibit-B was given to him by
the plaintiff in his house at Pakyong. This document too is not
clear. The defendants have failed to explain the contents thereof.
This court has upheld the findings of the learned District Judge
that no loan had been taken by the defendants from the plaintiff
in the manner sought to be projected. If it was so, then the
discharge certificate (exhibit-B) couldn't have been related to the
loan which was not taken. Quite evidently, the discharge
certificate (exhibit-B) seems to be a document prepared
purportedly in settlement of whatever disputes the plaintiff and
the defendants had in connection to their understanding about
the civil work which has been suppressed by the plaintiff as well
as the defendants. These facts known to the plaintiff as well as
R.F.A. No. 4 of 2019
Kuber Raj Rai vs. Saran Thapa and Another
the defendants have not been disclosed. The issues are answered
accordingly. The plaintiff has failed to prove that the defendants
had taken a loan of Rs.30,60,000/- from him. The four money
receipts, although executed by the defendants, did not concern
the loan purportedly taken by the defendants from the plaintiff.
The defendants have not been able to establish that the loan
agreement (exhibit-5) was executed by them under coercion,
fraud or undue influence. Although, it is clear that the discharge
certificate (exhibit-B) was signed by the plaintiff, the defendants
have not been able to clearly prove the contents thereof.
Similarly, although it is certain that the signature in the written
undertaking (exhibit-A) was of the plaintiff, the defendants have
not been able to prove the contents thereof.
13. At this juncture, it is important to decide the
application filed by the plaintiff on 01.03.2021. The plaintiff
urges that it had come to his knowledge that one Sonam Sherpa
had applied under the Right to Information Act, 2005 and
procured certain information after the impugned judgment which
led to the plaintiff filing a First Information Report before the
Pakyong Police Station on 01.10.2019. The plaintiff states that
these documents, viz., the application made by Sonam Sherpa
dated 17.05.2019; the reply dated 17.05.2019 by the Public
Information Officer and even the FIR filed by him, strangely; were
not within his knowledge and therefore even after exercise of due
R.F.A. No. 4 of 2019
Kuber Raj Rai vs. Saran Thapa and Another
diligence could not have produced it during the trial. There is not
even an attempt to disclose who is Sonam Sherpa and how the
plaintiff procured his application and reply. Curiously, the
information sought by Sonam Sherpa was about the civil works
and the reply was that the work order was not issued from the
office of the Central Public Works Department and that the
signature on the tender document purportedly of the then
Superintendent Engineer did not match. This information makes
the case even more curiouser. The relevancy of the documents
and whether it is required to pronounce judgment are two vital
considerations to such an application. At the threshold there is a
bar in taking additional evidence. The exception carved out is on
exceptional circumstances and the relief is discretionary. The
plaintiff has failed in all counts. The documents sought to be
produced at this stage would not help this court to pronounce
judgment. The plaintiff has also failed to establish an exceptional
case. The case of the plaintiff was that the defendants had taken
a loan from him but not returned. The additional documents
would not have any relevancy to decide if the loan had in fact
been taken and if the defendants were required to return it. The
application is rejected.
14. It is evident that both the plaintiff as well as the
defendants have not stated the entire truth before the court,
although they were in the know of it. The reliefs have been
R.F.A. No. 4 of 2019
Kuber Raj Rai vs. Saran Thapa and Another
sought by the plaintiff alone which cannot be granted due to the
manner he has chosen to approach a court of law.
15. In the circumstances, it is held that the plaintiff is not
entitled to the reliefs prayed for.
16. The appeal is dismissed.
17. No order as to costs.
( Bhaskar Raj Pradhan )
Judge
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