MADHUKAR ALIAS BABANRAO Vs. KANTABAI

JUDGEMENT

(1.) Feeling aggrieved by the judgment and decree dated 13.9.1993, passed by the 10 th Jt. Civil Judge (J.D.), Amravati in Regular Civil Suit No.30/1991, decreeing the suit of the respondent/plaintiff in the sum of Rs.23,400/- with future interest @ 18% per annum from the date of suit till its realization and confirmed in appeal by the Extra Joint District Judge, Amravati on 3.2.1999 in Regular Civil Appeal No.4/1994, the present appeal was filed by the appellant/defendant.

(2.) In support of the appeal, Shri Rahul Dhande, the learned Counsel for the appellant vehemently argued that though there is concurrent finding of fact recorded by both the Courts below while decreeing the suit of the respondent/plaintiff, the findings of facts are utterly perverse and thus would constitute substantial question of law. The findings are not based on evidence on record documentary as well as oral. According to the learned Counsel for the appellant, the suit was clearly barred by limitation but the Courts below have relied on the documents Exh. 81 and 82 dated 14.1.1988 and 24.2.1988, showing the payment of Rs.200/- each allegedly made by the present appellant/defendant in order to bring the suit within limitation. The learned Counsel for the appellant vehemently argued that these documents Exh.81 and 82 if carefully perused, would show that they had never been signed by the appellant/defendant and have been stoutly denied by him. According to the learned Counsel for the appellant when the documents Exh.81 and 82 were never signed by the appellant, the Courts below could not have taken them into consideration as acknowledgments within the meaning of the provisions of the Limitation Act in order to extend the limitation. The learned Counsel then went on to argue that the documents Exh.81 and 82 show that the alleged payment of Rs.200/- was received by one Shri Rambhau Loney allegedly from the appellant and that the said Shri Loney had thereafter made the payment to one Shri Pattalwar Advocate and further that the said Advocate Shri Pattalwar had made the said payment to the respondent/plaintiff. The Courts below ought to have rejected this theory propounded by the respondent/plaintiff in order to sustain the money claim in question. The learned Counsel thus submitted that the suit having been thus filed on 10.1.1999 was clearly barred by law of limitation and was required to be dismissed as such, rejecting the evidence of said Rambhau Loney also. The said Advocate Shri Pattalwar was never examined by the plaintiff before the Court to prove the receipt of payment by him or onward payment to the plaintiff by him. The learned Counsel then went on to argue that the transaction in question was money lending transaction and that would certainly be in contravention of the provisions of the Money Lending Act, which cannot be enforced by a Court of law. Invoking Section 103 of the Code of Civil Procedure, he argued that High Court has powers to determine even questions of facts while hearing a second appeal. Therefore, though no issue was framed by the trial Court on the question of money-lending nature of transaction, this Court can decide the said question. He also argued that the documents relied upon by the plaintiff were insufficiently stamped and hence could not be made admissible in evidence.

(3.) None appeared for the respondent despite several opportunities. Finally, on 2.7.2011, Advocate Shri R.R. Vyas for the respondent filed pursis, stating that the respondent had taken all his papers and is not in a position to defend the present appeal. Pursis is accepted.