K K SRIVASTAVA Vs. BHANU PRAKASH ASTHANA

JUDGEMENT

(1.) Heard Dr. Daya Shankar, learned Counsel for the appellant the admissions stage. Respondent No. 2 is the Appellate Court. It has wrongly been impleaded. Accordingly, respondent No. 2 is deleted from the array of the parties. This is defendant's Second Appeal arising out of Original Suit No. 1011 of 2006 which was dismissed by Additional Civil Judge (Senior Division)/Additional J.S.C.C., Allahabad on 3.8.2010. However, in the suit defendant-appellant had not appeared and suit proceeded ex parte. Against the said decree plaintiff-respondent (No. 1) filed Civil Appeal No. 112 of 2010 which was allowed by Additional District Judge, Court No. 5, Allahabad on 24.9.2011, judgment and decree passed by the Trial Court was set aside and suit of the plaintiff was decreed for recovery of Rs. 55,000/- as loan alongwith 6% interest. It was further directed that after one year from the date of the agreement (7.11.2003) and till the dates on which payment of Rs. 1,30,000/- had been made, 6% interest should also be paid.

(2.) The case of the plaintiff was that defendant on 7.11.2003 borrowed Rs. 4 lacs from him for his treatment and as a security for re-payment of loan 26 cheques signed by him were given to the plaintiff. Each cheque except one was for Rs. 15,000/- and one cheque was for Rs. 10,000/- and an agreement was also executed. It was stated that total Rs. 3.45 lacs were repaid out of which substantial amount was paid after one year from the date of the loan. Suit was filed for recovery of Rs. 81,305/- (which included Rs. 55,000/- as principal amount). Defendant appeared in the suit and filed vakalatnama of an Advocate on 2.1.2009. However, thereafter neither he filed written statement nor appeared in the suit. On 17.8.2009 Trial Court passed an order directing the suit to proceed ex parte. In the 4th paragraph of certified copy of the judgment of the Trial Court there is a sentence that after order dated 17.8.2009, in the form of ex parte evidence on behalf of the defendant, Bhanu Prakash Asthana examined himself. Learned Counsel for the appellant has vehemently argued that it proved that defendant had given evidence. This argument is utterly wrong. The word defendant has wrongly been mentioned. Bhanu Prakash Asthana was plaintiff and he examined himself as witness. No copy of defendant's evidence/statement has been filed alongwith compilation of this Second Appeal.

(3.) The Trial Court dismissed the suit on the ground that plaintiff failed to show that he was registered money lender and the loan was shown by him in the return/certificate under Regulation of Money Lending Act, 2002. Lower Appellate Court reversed the said finding holding that it was not proved that plaintiff was in the business of money lending and just advancing some amount as loan to a relation or friend does not bring the person within the definition of money lender. Loan was taken on 7.11.2003 which was re-payable within one year and in that contingency no interest was to be paid. In the appeal defendant appellant appeared and engaged Counsel. His arguments have been noted in the judgment of the Lower Appellate Court. The only argument raised on behalf of appellant before the Lower Appellate Court was that defendant had given cheques which could be got encashed by the plaintiff. The findings regarding non-maintainability of the suit for want of registration under Regulation of Money Lending Act recorded by the Trial Court were also supported by the defendant-appellant before the Lower Appellate Court. However, Lower Appellate Court has recorded a categorical finding that the fact of taking the loan and execution of the agreement was not denied. Lower Appellate Court held that plaintiff was not money lender. Out of the loan of Rs. 4 lacs within one year only Rs. 1.65 lacs were paid. Thereafter from 7.11.2004 till 7.8.2006 out of remaining loan amount of Rs. 2.35 lacs only Rs. 1.80 lacs were paid and Rs. 55,000/-remained due. Regarding non-presentation of the cheques before the bank the plaintiff stated that his relationship with the defendant was very good hence he avoided presenting the cheques for payment to the bank and payments were made by the defendant even after expiry of one year also.