The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK RSA No. 380 of 2015 An appeal under Section 100 Code of Civil Procedure. --------------- Amiya Kumar Swain .… Appellant -Versus- NanditaMohanty ..… Respondent Advocate(s) appeared in this case:- _______________________________________________________ For Appellant : M/s. Mrs. P. Pattnaik, D. Pradhan & N.K. Senapati, Advocates For Respondent
Legal Reasoning
: M/s. K.K. Rout, T.K. Nayak Ms. J. Naik, S.K. Rout S. Mohanty & S.P. Mohapatra Advocates _______________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA SASHIKANTA MISHRA, J. JUDGMENT 04.07.2025 This is a plaintiff’s appeal against a confirming judgment. The plaintiff’s suit for realization of Rs.75,000/- with interest from the defendant was dismissed by the Trial Court and confirmed by the 1st Appellate Court. Page 1 of 7 2. The plaintiff’s case, briefly stated, is that he and defendant’s husband were friends andin visiting terms. On request of the defendant, the plaintiff advanceda friendly loan to the defendant to the tune of Rs.1,20,000/- on different dates for which the defendant’s husband issued two cheques on 01.08.2006 and three further cheques on 02.08.2006, 07.08.2006 and 09.08.2006. The defendant’s husband expired in October, 2006 and she moved to Rourkela. When the plaintiff presented the cheques for encashment before the bank, the same were dishonoured for insufficient funds. When he approached the defendant for repayment of the loan, the defendant took time till February, 2007 but subsequently avoided. The plaintiff sent registered notice to the defendant on 16.03.2007, which was received on 21.03.2007. On 22.03.2007, the defendant refunded a sum of Rs.45,000/- by cheques dated 01.08.2006 and 02.08.2006 with assurance to pay the remaining amount of Rs.75,000/- by 1st April, 2007. The amount not having been paid, the suit was filed. Page 2 of 7 3. The defendant contested the suit by filing written statement denying the plaint averments in toto. She specifically took the plea that her husband had never taken loan from the plaintiff as claimed nor of having refunded Rs.45,000/- by way of cheque or of giving any assurance to pay the remaining amount. 4. Basing on the rival pleadings, the trial Court framed issues for determination, out of which Issue No.3, being pivotal to the dispute, was as follows:- “iii) Whether the plaintiff is entitled to realize the suit amount of Rs.75,000/- with interest @ 10% per annum from the date of filing of the suit till final realization from the defendant ?” 5. After considering the oral and documentary evidence, the trial Court found from the cheques tendered in evidence as Exts. 1, 2 and 3, do not bear the signature of the defendant. Further, the plaintiff was found not to have produced or proved any document showing the defendant’s knowledge and acknowledgement of her liability to repay the loan amount. The witnesses to the monetary transaction, namely, Sankar Sahu, and Bhimsen Sahu were also not examined. The plea regarding refund of Rs.45,000/- was also not proved. Page 3 of 7 Furthermore, the cheques were issued from different cheque books. On such findings basically, the suit was dismissed. 6. The plaintiff carried the matter in appeal. After appreciating the evidence on record vis-(cid:224)-vis the findings of the trial Court, the 1st Appellate court also found the plaintiff to have not established her claim by adducing proper evidence. The 1st Appellate Court drew adverse inference against the plaintiff for non-examination of Shankar Sahu. The maker of the cheques tendered into evidence was also not satisfactorily proved.As such, the plaintiff was held not to have established her case. That apart, the 1st Appellate Court took note of the fact that the plaintiff having an income of Rs.8,550/- also couldnot prove that he had capacity to lend Rs.1,20,000/- to the defendant’s husband. On such finding, the appeal was dismissed. 7. Being further aggrieved, the plaintiff-appellant has filed the present appeal, which was admitted on the following substantial question of law:- “Whether the findings of both the Courts below are perverse with regard to the evidence on Page 4 of 7 record?” 8. Heard Mrs. P. Pattnaik, learned counsel for the plaintiff-appellant and Mr. K.K.Rout, learned counsel appearing for the defendant-respondent. 9. Mrs. Pattnaik would argue that both the courts below were wrong in not relying upon the evidence adduced by the plaintiff to show that he had advanceda loan, which was secured by as many as five cheques issued by the defendant. The cheques were tendered into evidence but disbelieved by the Courts below on untenable grounds. 10. Mr. Rout, on the other hand, would argue that concurrent findings of fact rendered by the courts below should not be disturbed routinely. The plaintiff has failed to show as to how the finding of fact of both the courts below is wrong so as to persuade this Court to interfere. Fact remains that both the courts below found the plaintiff to have not established his case by adducing cogent evidence. 11. Before adverting to the contentions raised on behalf of the parties as noted above, this Court would Page 5 of 7 liketo keep in perspective the settled position of law that concurrent findings of fact are not to be interfered with by the Second Appellate Court unless the same are shown to be perverse or against the weight of evidence on record or otherwise such as no prudent person would arrive at. 12. Perusal of the impugned orders in the above background reveals that both the courts below found the plaintiff’s case unacceptable for want of certain vital proof. For instance, in a suit for realization of money, it is for the plaintiff to first establish with cogent evidence that he had paid the money to the defendant as claimed. The plaintiff in the instant case claims to have paid money to the defendant’s husband in presence of one Sankar Sahu but he was never examined. This is a vital omission on the part of the plaintiff. Secondly, it is the claim of the plaintiff that three cheques were issued by the defendant (Exts.1, 2 and 3). The signature of the defendant was never proved. Interestingly, though the defendant was cross- examined and suggestions weregiven that signature in the cheques belong to her,yet the signatures were not confronted to her. This is also a vital omission. Thirdly, Page 6 of 7 the plaintiff claims that the defendant refunded Rs.45,000/- by way of cheque but no evidence to that effect was adduced. Finally, the 1st Appellate Court expressed doubt, and rightly so, regarding the plaintiff’s ability to pay a sum of Rs.1,20,000/- to the defendant’s husband when his own income was Rs.8,850/- per month only and he did not adduce any other evidence to show that he had such amount with him from any source. The Courts below had therefore disbelieved the claim of the plaintiff in toto. 13. From what has been discussed hereinbefore, this Court finds no perversity or illegality in the findings of the courts below so as to be persuaded to interfere in second appeal. 14. For the foregoing reasons, this Court finds no merit in the appeal, which is therefore dismissed, but in the circumstances, without any costs. Signature Not Verified Digitally Signed B.C. Tudu, Sr. Steno Signed by: BHIGAL CHANDRA TUDU Reason: Authentication Location: Orissa High Court, Cuttack Date: 07-Jul-2025 20:21:32 ……..………………….. Sashikanta Mishra, Judge Page 7 of 7