BHANA BHAGWAN AND COMPANY Vs. BHAVAN VASHRAM

JUDGEMENT

(1.) This appeal arises of the judgment and order dated 22nd June, 1981 passed by the learned Extra-Assistant Judge, Bhavnagar in Regular Civil Appeal No. 119 of 1979 passed by the learned Civil Judge (J.D.), Shihor in Civil Suit No. 57 of 1974. The appellant before this Court is the plaintiff

(2.) The plaintiff is the partnership firm which had money lending business and also possessed the licence for such business. It was the case of the plaintiff that the plaintiff had on 9th January. 1972 advanced a sum of Rs. 6000/- to the deceased Defendant No. 1-Bhavan Vashram and the defendant No. 2-Kanbi Makod Bhavan on interest at the rate of 1 per cent per month. Against the said loan amount, on 7th March, 1972, the defendant No. 1 had paid a sum of Rs. 20001- towards the principal amount and a sum of Rs. 160/- towards the interest. The rest of the loan amount and the interest remained unpaid. The plaintiff, therefore, sued for recovery of Rs. 5,300/-; including a sum of Rs. 4000/- towards loan amount, Rs. 1280/- towards interest @ 12% p.a. on the loan amount and Rs. 20/- towards the notice charges. The suit was duly contested by the defendants by filing written statement Exh. 10. It was contended that on the date of the suit the plaintiff firm was not in existence. The defendants denied the fact of borrowing loan in the sum of Rs. 6000/-, as alleged. It was contended that some amount was borrowed in the year 1970-71 and was repaid. The defendants, however, being illiterate, a false case was made out against the defendants

(3.) The learned trial Judge considering the evidence on record held that the plaintiff had advanced a sum of Rs. 6000/- to the defendants (as alleged); that the defendants had repaid a sum of Rs. 2000/- towards the said loan amount and Rs. 160/- towards interest. The learned trial Judge further found that a sum of Rs. 3000/- was repaid by the defendants towards the loan amount on 13th March, 1972 (vide receipt Exh. 85) which was not credited to the accounts of the defendants. Considering the above-referred payment made by the defendant, the learned Judge found a sum of Rs. 960/- due towards the loan amount and a sum of Rs. 201-60 p. due towards the interest. Pending the suit, the defendant No. 1-Bhavan Vashram died and his heirs and legal representatives were brought on the records. However, it was proved that the land belonging to the deceased Bhavan Vashram devolved on the defendant No. 2 alone and rest of the heirs had relinquished their right to the said land. A decree was passed against the defendant No. 2 alone. The defendant No. 2 was ordered to pay a sum of Rs. 1161-60 p. due towards the loan amount and interest on the date of the suit and directed to pay future interest @ 6% p. a. over the unpaid loan amount of Rs. 960/-. Feeling aggrieved, the plaintiff preferred the above referred Regular Civil Appeal No. 119 of 1979 before the District Judge, Bhavnagar. The defendants also preferred cross-objection.