VITTALSA OMKARSA SIDDLING Vs. BHIMASA NAGENDRASA PAWAR

JUDGEMENT

(1.) THESE revisions arise out of a common order passed by the court of Small Causes in respect of two suits between the same parties where the evidence was common. It is undisputed that the two amounts of Rs. 2,000/- each were borrowed from the plaintiff on 10-10-1987 and 21-10-1987. It is important to record that the wife of the plaintiff and the wife of the defendant are sisters. The parties are closely related and it is contended that the amount was basically a hand loan. The amount not having been repaid, the plaintiff sent a notice to the defendant which was not replied whereupon he filed two suits for the recovery of the amount along with interest. The learned trial Judge after recording evidence and hearing the parties took note of one particular aspect of the defence. This is a case in which the defendant admitted that the two loans of Rs. 2,000/- each were received by him. He submits that he has repaid the loan under the instructions of the plaintiff who asked him to open a pigmy deposit with the K. C. C. Bank at Gadag in the name of Smt. Renuka who was his wife and to deposit the amount in instalments which the defendant had done. The defendant has taken the trouble of examining the agent who has established the fact that the defendant has deposited an amount aggregating to Rs. 4,050/- in the pigmy deposit account of the plaintiff's wife which amount has been withdrawn by her. The defendant therefore contended that there is nothing due from him in so far as he has discharged both the loans and that consequently the suits are liable to be dismissed. On the basis of this defence evidence, the learned trial Judge has held that there was a complete discharge of the amount in so far as the defendant has proved that he has repaid Rs. 4,050/ -. The learned trial Judge has taken note of Section 114 (g) of the Evidence Act and he has recorded that it was obligatory on the part of the plaintiff to have examined his wife as a witness in order to establish that the payment to her had nothing- to do with the two loans which the defendant has taken from the plaintiff. The non-examination of the plaintiff's wife has been held heavily as a factor against the plaintiff and an adverse inference has been drawn by the trial Court as a result of which both the suits came to be dismissed. It is against this order that the present civil revision petitions have been preferred.

(2.) THE petitioner's learned Advocate has advanced only two submissions before me. The first of them is that he contends that the learned trial Judge has jumped to conclusions which are impermissible having regard to the record. He states that apart from plaintiff's evidence, there is a clear admission on the part of the defendant in respect of the loans and that therefore the onus of establishing the repayment of loan by the plaintiff is on the defendant. The plaintiff has explained that there was another loan transaction between his wife and the defendant and it was in connection with that transaction that the amount of Rs. 4,050/- was repaid by the defendant. In this background he submits that the learned trial Judge was wrong in having refused to decree this suit. Respondent's learned Advocate has vehemently submitted that once the repayment is established by the defendant that the onus of proof is shifted to the plaintiff to explain as to how and under what circumstances the amount of rs. 4,050/- had been received by his wife. He emphasises the fact that the relationship between the parties is very close and the repayment was to none other than the wife herself and the amount was withdrawn by her. In this background he submits that there is a compete and valid discharge in law and that the learned Judge was perfectly correct in having dismissed the suit.

(3.) THERE is only one aspect of the matter that requires to be taken into account by this Court. Given the background of the parties, there is one significant factor namely that the plaintiff preceded the filing of the suit through a formal notice of demand. If as contended by the defendant's learned Advocate, the defendant had repaid the amount he would have most certainly placed it on record; that there is no amount due from him and that the demand was false and untenable. This was not done. On the other hand, what this Court needs to take cognizance of is that the defendant vehemently contends that he acted as per the instructions of the plaintiff who asked him to repay the amount to his wife and not to himself. This actually is word against word because the plaintiff has denied this fact. According to him the repayment is in relation to some other transaction. It is not a question of the appreciation of evidence but the position that emerges in law. The transaction was between the plaintiff and the defendant and the wives were nowhere in the picture. The obligation on the part of the defendant was to repay the loan to the plaintiff in which case he could have claimed a valid discharge. If he had paid the amount to the wife, the onus shifts to him to establish that repayment was in relation to this very loan, more so when the plaintiff disputed this position. The liability was to the plaintiff and it is only by a repayment to the plaintiff, that the liability could have been discharged. The payment made to the wife in the aforesaid circumstances cannot be treated as a valid discharge in law.