SHAIK INAM Vs. BAL REDDI

JUDGEMENT

(1.) This Second Appeal, by the plaintiff, arises out of a suit for a declaration that the agreement' chitti' and ' charainama ', executed by him in favour of the first defendant, are not enforceable and not supported by consideration, inasmuch as they were got executed under coercion and undue influence. There was also a further relief sought for a permanent injunction restraining the first defendant from enforcing the said ' charainama ' Exhibit D-1. The ' chitti', Exhibit D-2, which was issued by the Police Patel, Balreddy, examined as D.W. 3 showed that the plaintiff had sold ten bullocks to the first defendant. So, the two main issues in the suit were- 1. Whether the 'chitti' and 'Charainama' dated 10th October, 1954, are vitiated by undue influence and coercion ; and 2. Whether the second defendant is a money lender within the meaning of section 2 (7) of the Hyderabad Money Lenders Act and was not in possession of a licence and consequently the second defendant has no right to claim the amount due from the plaintiff ? If so, what is it effect on the suit transaction ? The facts found by the lower appellate Court are that the plaintiff was having money dealings with the second defendant on the basis of a ' khata ', that the second defendant was demanding the amount found due from the plaintiff, and that there was a dispute between them as to the exact amount due. So, on 10th October, 1954 the matter was referred to a panchayat. The panchas decided that an amount o f Rs. 1,400 was payable to the second defendant. However, as the plaintiff was not in a position to pay the amount then and there, he had approached the first defendant to advance the amount to the second defendant, but as the first defendant did not have cash, he executed an ' ankada ' for the amount settled as due in favour of the second defendant. At the request of the plaintiff, however, the bulls were allowed to be kept by him till the Tabi crop of 1955, and the plaintiff executed a ' charainama ' in this regard. The ' charainama ' reads thus : " This agreement bond executed on Jayanama Samachar Ashved Nama Shud 13 by Shaik Imam Sahib of village Masaipet in favour of Anthireddigari Bal Reddy Mukhadam. Whereas my personal 10 heads of bullocks have been sold by me to you for a sum of O.S. Rs. 1,400 (Rupees one thousand four hundred only) to-day and have received the abovesaid consideration amount in cash. I will keep the abovesaid cattle carefully under my supervision for a period of six months more i.e., upto the harvest of the Tabi Crops of this year and whenever you demand 1 will deliver them to you at once. In witness where of I have executed this agreement bond of my own free Will and intention Which is correct. Dated 10th October, 1954. (Sd.) Shaik Imam:'

(2.) On the same date a ' chitti', that is to say, a sale chit, was executed by the plaintiff. The case of the plaintiff was that the chitti' and 'charainama ' were the result of coercion and undue influence exerted on him by the defendants, and secondly, that as the second defendant had no licence under the Hyderabad Moneylenders Act, he had no right to claim the amount due from the plaintiff even if it was in fact, due. Since the second defendant could not claim the repayment of the debt, the transaction between the plaintiff and the first defendant, who came into the picture and undertook to pay the debt on behalf of the plaintiff in consideration of the sale of the plaintiff's ten bullocks to him, is a also illegal and unenforceable. On a consideration of the evidence, oral and documentary, in the light of probabilities, the learned Appellate Judge found that the plaintiff had failed to discharge the burden which lay on him to establish coercion and undue influence. His finding is in these terms :-

(3.) On the other issue, the learned Judge found that the second defendant was a money-lender and did not in fact, possess a licence under the Hyderabad Moneylenders Act. Therefore, he could not maintain a suit in a civil Court for the recovery of the amount due to him by the plaintiff. He, however, found that the transaction, which was impeached in the present suit, was distinct and separable from the loans advanced by the second defendant to the plaintiff from time to time and further there is nothing in the evidence to show that the first defendant had knowledge of the illegality of the loan transaction between the plaintiff and the second defendant by reason of the latter not possessing a licence under the Hyderabad Money-lenders Act. The learned Appellate Judge, therefore, found that the ' chitti' and charainama ' dated 10th October, 1954, were supported by consideration. In support of this Second Appeal, the learned Advocate for the plaintiff-appellant has contended that the lower appellate Court was in error in placing the onus of proof with regard to the issue pertaining to coercion and undue influence on the plaintiff. He urged that in view of the relationship of debtor and creditor and having regard to the circumstances in which pressure was brought to bear upon the plaintiff to discharge the debt, the second defendant as creditor was in a position to dominate the will of the plaintiff and, therefore, the burden lay on him to establish the absence of undue influence and coercion. Section 15 of the Indian Contract Act, 1872 defines ' Coercion ' as under :-