Dina Nath v. Yashpal

CORAM : HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr.Vijay Rana, Advocate for the appellant. RAKESH KUMAR JAIN, J. The defendant is in second appeal against the judgment and decree of both the Courts below whereby the suit for recovery filed by the plaintiff has been decreed. In brief, the facts of the case are that plaintiff filed a suit for recovery of Rs.3,42,000/- claiming Rs.3 lac towards principal amount and Rs.42,000/- as interest thereon @ 12% per annum from 6.5.2003 up to the date of filing of the suit on the basis of the pronote and receipt dated

6.5.2003. It is pleaded by the plaintiff that defendant had borrowed the aforesaid amount at an agreed rate of interest @ 2.50% per month and in lieu thereof executed the pronote and receipt in favour of the plaintiff. Since the defendant failed to repay the principal amount and the interest in spite of repeated requests, hence the suit. In the written statement, it was denied by the defendant that he had ever borrowed the amount claimed by the plaintiff or executed the pronote and receipt dated 6.5.2003. It was alleged that the pronote and RSA No.1186 of 2008 -2 - receipt are the result of fraud, misrepresentation and concealment of facts. In replication, the plaintiff denied the contentions raised in the written statement and reiterated the stand taken in the plaint. On the pleadings of the parties, following issues were framed by the trial Court: (i)Whether the plaintiff is entitled for recovery of suit amount along with interest on the basis of pronote and receipt dated

6.5.2003 as prayed for? OPP. (ii)Whether suit of the plaintiff is not maintainable in the present form? OPD. (iii)Whether the plaintiff has no locus standi to file the instant suit? OPD. (iv)Whether plaintiff is estopped by his own act and conduct from filing the captioned suit? OPD. (v)Relief. The plaintiff examined Surinder Kumar, Deed Writer as PW1, Narinder Singh as PW2 and he himself appeared as PW3. On the other hand, defendant entered the witness box as DW1. The trial Court decreed the suit. It was argued by the defendant-appellant before first Appellate Court that the plaintiff is a money lender without license, therefore, in view of Punjab Registration of Money Lenders Act, 1938, (for short `the Act') the suit was not maintainable. The first Appellate Court, however, found that it was not the case of the defendant that plaintiff is a money lender nor he could prove it as a fact on the record from which it could be inferred that the plaintiff was doing the money lending business thus, if the plaintiff was not a money lender, he was not supposed to possess a license of money lender before institution of the suit. On this ground the appeal was dismissed. The learned counsel for the appellant has assailed the judgment RSA No.1186 of 2008 -3 - and decree of both the Courts below raising the same plea which was raised before the first Appellate Court that the suit of the plaintiff was not maintainable in the absence of license under the provisions of the Act but again he could not prove before this Court that the plaintiff is a money lender. Thus, in the absence of the proof by the defendant that the plaintiff is a money lender, the plea that the plaintiff should have a license before filing the suit in terms of the provisions of the Act is untenable. No other point has been raised by the counsel for the appellant. In view of the above discussion, I do not find any merit in the present appeal and the same is hereby dismissed.

9.12.2008 Meenu (Rakesh Kumar Jain) Judge