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Case Details
A.F.R IN THE HIGH COURT OF ORISSA AT CUTTACK RSA No.251 of 2002 (In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908) Judhistira Sahu …. Appellant State Bank of India …. Respondent -versus- Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - Mr. M.K. Agarwal, Advocate Appearing on behalf of Mr. D.P. Dhal, Senior Advocate. For Respondent CORAM: MR. JUSTICE A.C.BEHERA - Mr. P.V. Balakrishna, Advocate Date of Hearing :05.07.2024:: Date of Judgment :30.07.2024 A.C. Behera, J. This 2nd Appeal has been preferred against the confirming Judgment. 2. The appellant of this 2nd Appeal was the defendant before the Trial Court in the money suit vide M.S No.4 of 1999 and he was the appellant before the First Appellate Court in the 1st appeal vide M.A. No.6 of 2001. The respondent-Bank of this 2nd Appeal was the plaintiff before the
Legal Reasoning
Trial Court in the money suit vide M.S. No.4 of 1999 and the respondent RSA No.251 of 2002 Page 1 of 14 {{ 2 }} before the First Appellate Court in the 1st Appeal vide M.A. No.6 of 2001. The suit of the plaintiff-Bank (respondent in this 2nd Appeal) against the defendant (appellant in this 2nd Appeal) vide M.S. No.4 of 1999 was a suit for realisation of money from the defendant. 3. As per the pleadings of the plaintiff-Bank in the suit vide M.S. No.4 of 1999, the plaintiff is a SCHEDULED Commercial Bank and is exempted from the operation of Orissa Money Lenders Act. On dated 14.03.1990, while the defendant was serving as a Junior Clerk in Chatrapur Tahsil Office, he (defendant) applied before the plaintiff-bank for a term loan of Rs.14,000/- in order to purchase one LML Vespa NV Scooter. The Tahasildar, Chatrapur, who was the drawing and disbursing Authority of the defendant intimated the plaintiff-Bank that, the defendant has authorized him through an irrevocable letter of authority for deducting a sum of Rs.525/- per month from his salary since the month of April, 1990 towards the payment of monthly instalment of his loan. On dated 14.03.1990, the plaintiff bank Sanctioned loan of Rs.14,000/- in favour of the defendant through execution of proper documents by the defendant before the plaintiff-Bank for the sanction of loan accepting the mode and manner of payment including rate of interest RSA No.251 of 2002 Page 2 of 14 {{ 3 }} for payment. As per the terms of the agreement with the plaintiff-Bank, the defendant was agreed for repayment of his loan in 36 monthly instalments having Rs.525/- for each month through deduction from his monthly salary commencing from April 1990 and he (defendant) received the said loan on dated 15.03.1990 from the plaintiff-Bank and purchased a scooter. But, some months thereafter, the defendant failed to pay the monthly instalment dues of his aforesaid loan. For which, on 12.03.1993 the defendant approached the plaintiff bank and expressed his difficulties in repayment of the monthly instalment and prayed for extension of time for repayment of the same and executed a revival letter on that day i.e. on 12.03.1993 acknowledging the outstanding dues of the loan against him and under the similar circumstances, subsequent thereto, he (defendant) also executed an another revival letter on dated 10.03.1996 before the plaintiff-Bank acknowledging the outstanding loan dues against him. In spite of repeated execution of the revival letters dated 12.03.1993 and 10.03.1996 respectively by the defendant (loanee) acknowledging outstanding loan dues, he (defendant) failed to repay the same. For which, without getting any way, the plaintiff bank issued a legal notice to the defendant on dated 08.12.1998 through his Advocate requesting him (defendant) for the repayment of the outstanding loan dues with interest RSA No.251 of 2002 Page 3 of 14 {{ 4 }} i.e. Rs.30,559/- within the stipulated time indicated in the said notice, but in spite of receiving the said legal notice of the plaintiff-Bank, the defendant did not pay the same. For which, without getting any way the plaintiff-Bank approached the Civil Court by filing the suit vide M.S. No.4 of 1999 against the defendant praying for passing a money decree for Rs.71,698/- against the defendant directing the defendant for the repayment of the same with contractual rate of interest along with pendente lite and future interest thereon. 4. Having been noticed from the Trial Court in the suit vide M.S. No.4 of 1996, the defendant contested the same only admitting the sanction of the loan in his favour by the plaintiff-bank but disputing the other averments of the plaint made by the plaintiff-Bank: As per the pleadings of the defendant, he (defendant) has never signed any revival letter. He (defendant) had intimated time to time to his employer under intimation to the plaintiff-Bank, that, the deduction from his salary as usual was continuing since April 1990 and the entire loan dues with interest have already been recovered from him by the plaintiff- bank from his salary, for which, he is no more liable to pay anything. It was the specific case of the defendant that, he (defendant) had replied the advocate notice of the plaintiff-Bank through ordinary post RSA No.251 of 2002 Page 4 of 14 {{ 5 }} denying his liability for payment of loan, because, the entire loan dues have already been deducted from his salary by his employer as per the request of the plaintiff bank. The suit of the plaintiff is barred by limitation. He (defendant) had availed the loan of Rs.14,800/- from the plaintiff Bank under scoom and had purchased a scooter hypothecating the same to the plaintiff-Bank. He (defendant) was liable to repay the loan dues in 36 monthly instalments as @Rs.525/- per month towards the principal and interest, commencing from April, 1990. As per his agreement with plaintiff-Bank, the Collector was required to collect the loan instalment dues from his salary and to remit the same to the plaintiff bank. For which, the Tahasildar was collecting i.e. Rs.525/- per month from his salary and was remitting the same to the plaintiff bank. The loan dues for the last instalment was deducted from his salary in the month of March, 1993 and accordingly, all the outstanding loan dues of the plaintiff-bank against him has already been satisfied fully through deduction from his salary till March, 1993. As his entire loan dues has already been paid to the plaintiff-Bank, for which, the plaintiff-Bank remained silent till end of 1999, but then filed the suit. So, the suit of the plaintiff is barred by limitation. As, his entire loan dues have already been deducted from his salary as per the RSA No.251 of 2002 Page 5 of 14 {{ 6 }} order of the Collector, Ganjam, for which, the Collector is a necessary party to the suit. Therefore, the suit of the plaintiff against him (defendant) is not maintainable under law. Therefore, the suit of the plaintiff is liable to be dismissed against him (defendant) with cost. 5. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether 4 numbers of issues were framed by the Trial Court in the suit vide M.S. No.4 of 1999 and the said issues are: ISSUES Is the suit maintainable? Has the plaintiff any cause of action to file the suit? Has the defendant paid the bank dues to the plaintiff-bank in due 1. 2. 3. time and is not liable to pay anything to the bank? 4. To what other relief, if any the plaintiff is entitled? 6. In order to substantiate the aforesaid relief sought for by the plaintiff-Bank against the defendant, the plaintiff-bank examined 2 witnesses from its side including its officers as P.W.1 and P.W.2 and relied upon the documents vide Exts.1 to 7. On the contrary, in order to nullify/defeat the suit of the plaintiff, he (defendant) examined himself as D.W.1 and proved 4 documents on his behalf vide Exts.A to D. 7. After conclusion of hearing and on perusal of the materials, documents and evidence available in the record, the trial court answered RSA No.251 of 2002 Page 6 of 14 {{ 7 }} all the issues in favour of the plaintiff-bank and against the defendant and basing upon the findings and observations made by the Trial Court in the issues in favour of the plaintiff-bank and against the defendant, the Trial Court decreed the suit of the plaintiff on contest against the defendant as per its Judgment and Decree dated 10.09.2001 and 24.09.2001 respectively with cost and directed the defendant to pay a sum of Rs.71,698/- with P.I. & F.I. within 10 days, failing which, the plaintiff- Bank is at liberty to realise the said amount from the defendant through process of court assigning the reasons in the Judgment that, when, in spite of acknowledging the outstanding loan dues of the defendant before the plaintiff-bank through execution of revival letters, he (defendant) did not repay the same, for which, the suit of the plaintiff against the defendant was maintainable and the same was not barred by limitation. Therefore, the plaintiff is entitled to get the decree for realization of the aforesaid outstanding loan dues with interest from the defendant. 8. On being dissatisfied with the aforesaid Judgment and Decree dated 10.09.2001 and 24.09.2001 respectively passed by the trial court in the suit vide M.S. No.4 of 1999 in favour of the plaintiff-Bank and against the defendant, he (defendant) challenged the same by preferring RSA No.251 of 2002 Page 7 of 14 {{ 8 }} the 1st Appeal vide M.A. No.6 of 2001 being the appellant against the plaintiff-bank arraying the plaintiff-bank as respondent. After hearing from both the sides, the 1st Appellate Court dismissed that 1st Appeal vide M.A. No.6 of 2001 of the defendant on contest by framing two additional issues and answering the same against the appellant/defendant as per its Judgment and Decree dated 12.08.2002 and 17.08.2002 respectively accepting the findings and observations made by the Trial Court in favour of the plaintiff-Bank and against the defendant. 9. On being aggrieved with the aforesaid Judgment and Decree of the dismissal of the 1st Appeal vide M.A. No.6 of 2001, he (defendant) challenged the same by preferring this 2nd Appeal being the appellant against the plaintiff-Bank arraying the plaintiff-Bank as respondent. This 2nd Appeal was admitted on formulation of the following substantial question of law i.e. 1. Whether the court below was legally correct in framing additional issues at the stage of Appeal and disposing of the same without remanding the matter to the trial court for leading additional evidence by the parties and if such act of the First Appellate Court renders the impugned judgment invalid? 10.
Legal Reasoning
I have already heard from the learned counsels of both the sides. RSA No.251 of 2002 Page 8 of 14 {{ 9 }} 11. It appears from the Judgment and Decree passed by the First Appellate Court in M.A. No.6 of 2001 that, the First Appellate Court had framed following two issues: (i) Whether the defendant had executed the revival letters? (ii) Whether the suit of the plaintiff-Bank is barred by limitation? In para No.9 of the plaint of the plaintiff-Bank, it has been specifically averred/pleaded that, the defendant had executed revival letters on dated 12.03.1993 and 10.03.1996 respectively admitting the loan outstanding dues of the plaintiff-bank against him. To which, the defendant denied in Para Nos.7,11 & 12 of his written statement that, he (defendant) has never signed any revival letter. For which, there is no question of execution of any revival letter by him (defendant). Therefore, the suit of the plaintiff-Bank is barred by limitation. 12. On the basis of the aforesaid rival pleadings of the parties concerning the matter of limitation for filing the suit by the plaintiff-bank, though the Trial Court has not specifically framed any issue for the same i.e. Whether the defendant had executed the revival letters and whether the suit of the plaintiff-bank is barred by limitation or not, but without framing any specific issue in respect of the same, the Trial Court on the RSA No.251 of 2002 Page 9 of 14 {{ 10 }} basis of the pleadings and evidence of the parties relating to the aforesaid controversies between them has held/answered in the Judgment and Decree on the above point of limitation in issue No.3 that, “the cause of action for filing the suit by the plaintiff-bank against the defendant is not barred by limitation, as the plaintiff-bank had served the lawyer’s notice on the defendant, but neither the defendant replied that lawyer’s notice of the plaintiff-bank nor the defendant filed any document obtaining from his employer (authority) about the repayment of his entire loan dues to the plaintiff-Bank. Therefore, merely saying that, the defendant has not signed the revival letter is not enough to say that, he (defendant) is not liable to pay the amount, as on the other hand, the plaintiff-bank has filed series of documents including the statement of account, which virtually has not been challenged/disputed in the evidence, though a plea was taken by the defendant that, he (defendant) has not signed the revival letters, for which, it is held that, the defendant has signed the revival letters, but, he (defendant) has not paid the loan dues of the plaintiff- Bank.” The Trial Court has answered the issue No.3 clarifying the above controversies between the parties on the point of limitation as well as execution of revival letters on the basis of pleadings and evidence of the RSA No.251 of 2002 Page 10 of 14 {{ 11 }} parties, which includes the answers of the above two issues, those were framed by the 1st Appellate Court in its Judgment vide M.A. No.06 of 2001 i.e. (i) whether the defendant had executed the revival letters? and (ii) whether the suit of the plaintiff-Bank is barred by limitation? As per law, when each party to the suit vide M.S. No.4 of 1999 had proceeded with the trial of that suit on the basis of their respective pleadings being fully aware about the case of adversary with involvement of all controversies between them including the controversies i.e. whether the defendant had executed the revival letters and whether the suit of the plaintiff-Bank is barred by limitation, then, at this juncture, failure on the part of the trial court to frame issues on these above two points specifically, has never caused any grave injustice to either of the parties, as the answers given in issue No.3 by the trial court has covered the answers of the above two issues, those were framed by the 1st Appellate Court in its Judgment. On this aspect, the propositions of law has already been clarified by the Hon’ble Courts and Apex Court in the ratio of the following decisions: I. AIR 884 (SC) 1963 (Para No.6): Nedunuri Kameswaramma vs Sampati Subba—CPC 1908, Order 14 Rule 1—Omission to frame issue—Effect of—Where the parties went to trial fully knowing the rival case and led all the RSA No.251 of 2002 Page 11 of 14 {{ 12 }} evidence not only in support of their contentions but in refutation of those of the other side, it cannot be said that the absence of an issue was fatal to the case, or that there was that mis-trial which vitiates proceedings. The suit could not be dismissed on this narrow ground, and also there is no need for a remit, as the evidence which has been led in the case is sufficient to reach the right conclusion and neither party claimed that it had any further evidence to offer. (Para No.6) II. III. (Karnataka): K. (2) Civil Court Cases 284 2018 Ballarigowda Vs. Sarojamma. Order 41, Rule 1, CPC 1908—Issues—Non-framing of an issue—Cannot be said to cause prejudice to the party, when both parties have understood as to what are their cases and how they have to lead evidence, what burden is cast upon them and what they have to seek before the Court. 2010 (Suppl.) Civil Court Cases 679 (P & H): Charanjit Vs. Nagar Panchayat Begowal. Order 41, Rule 1, CPC 1908—Absence of an issue—Framing of an issue is immaterial, when the parties have understood the case and led evidence. 13. Here in this suit/Appeal at hand, when both the parties i.e. plaintiff and defendant had proceeded with the trial of the suit vide M.S. No.4 of 1999 before the Trial Court on the basis of their respective pleadings relating to the involved controversies therein between them i.e. whether the defendant had executed the revival letters and whether the suit is barred by limitation along with others and when, they (parties) have led the evidence not only in support of their contentions, but in relation of those of the other side and when, the Trial Court has answered the said controversies between them (parties) in the Judgment relating to the RSA No.251 of 2002 Page 12 of 14 {{ 13 }} execution of revival letters and limitation in issue No.3 as stated above, then, at this juncture, in view of the principles of law enunciated by the Hon’ble Courts and Apex Court in the ratio of the above decisions, it cannot be held that, the First Appellate Court was not legally correct in framing the two issues i.e. whether the defendant had executed the revival letters and whether the suit is barred by limitation in its Judgment for no other reason, but only for a clarity of the Judgment without remanding the matter to the Trial Court for leading additional evidence by the parties. Because, in order to have a proper clarity of the Judgment for the parties as well as for the common people, the First Appellate Court had framed the above two issues specifically on the basis of the Judgment of the Trial Court and pleadings and evidence of the parties, although the said two issues had already been answered by the Trial Court in a compendious issue i.e. issue No.3 containing the same therein. 14. As per the discussions and observations made above, when, it is held that, the Judgment and Decree passed by the First Appellate Court in M.A. No.6 of 2001 confirming the Judgment and Decree passed by the Trial Court is not erroneous in any manner, then, at this juncture, the question of interfering with the same through this 2nd Appeal filed by the appellant (defendant) does not arise. RSA No.251 of 2002 Page 13 of 14 {{ 14 }} 15. Therefore, there is no merit in the appeal of the appellant (defendant). The same must fail. 16. In result, the 2nd Appeal filed by the appellant (defendant) is dismissed on contest, but without cost. The Judgment and Decree passed by the Trial Court and First Appellate Court are confirmed. Orissa High Court, Cuttack. Rati Ranjan Nayak// Senior Stenographer Date:30.07.2024 (A.C. Behera), Judge. Signature Not Verified Digitally Signed Signed by: RATI RANJAN NAYAK Reason: Authentication Location: High Court of Orissa, Cuttack, India. Date: 12-Aug-2024 16:53:44 RSA No.251 of 2002 Page 14 of 14