RAMESHCHANDRA Vs. NIRMALARANI

JUDGEMENT

(1.) BEING aggrieved by the judgment dated 3.9.08 passed by District Judge, Ratlam in Civil Suit No.20-B/97, whereby a decree for Rs.77,300/- was passed with a direction to pay interest w.e.f. 24.10.97 till realisation @ 6% per annum, present appeal has been filed.

(2.) SHORT facts of the case are that respondent filed a suit on 24.10.97 alleging that D.P.Dubey, husband of the respondent, was proprietor of Kiran Talkies, Ratlam. Appellant was running a canteen on contract basis in the said theatre. It was alleged that appellant was in need of money for carrying on his business and a loan of Rs.50,000/- was been taken by the appellant on 1.11.94. It was alleged that a promissory note was executed by the appellant in favour of respondent. Further case of respondent was that inspite of demand amount has not been paid. The notice was sent on 21.10.97 but inspite of that amount was not paid. It was alleged that amount of Rs.50,000/- alongwith interest @ 18% per annum, which comes to Rs.27,500/- from 20.11.97 is outstanding. It was prayed that decree for Rs.77,500/- be passed against appellant. The suit was contested by the appellant by filing written statement, wherein was it denied that any amount of loan was taken by the appellant. The execution of the promissory note was also denied. It was also denied that any notice was served on the appellant. It was also denied that appellant ever denied to accept the notice. In the special plea it was alleged that respondent and daughters of respondent has taken loan from the appellant from time-to-time but the amount was not returned. It was alleged that upon demand appellant was abused and the suit has been filed. It was alleged that promissory note is the forged document. It was further alleged that as per the accounts from 26.8.88 to 8.2.90 a sum of Rs.41,810.75 was given by appellant to respondent. It was alleged that amount of interest as it comes to Rs.42,218/-, which is outstanding against respondent. It was prayed that suit be dismissed. On the basis of pleadings of the parties and evidence on record learned trial Court decreed the suit against which present appeal has been filed.

(3.) FROM perusal of the record it appeals that to prove the case respondent has filed document Ex.P/1, which is promissory note. Ex.P/2 is the notice and Ex.P/3 to P/5 are the documents relating to post office, whereby, notices were sent, which were returned unserved. Respondent has examined herself as PW.1 and has also examined Dilipkumar as PW-2 while appellant has proved document Ex.D/1 and has also examined himself as DW-1. It is true that the application was filed by the appellant for examining the document Ex.P/1 by handwriting expert but the same was not dismissed as the application was belated, therefore, the law laid down by this Court in the matter of L.S.Tradjng Company (supra) is of no help to the appellant. Since it is no more in dispute that appellant was the contractor, running a canteen in the premises of the theatre, which was owned by the husband of respondent, therefore, it appears that appellant and respondent were closely related. Appellant himself has admitted that money was being given by appellant to respondent and the members of her family on their demand. In the facts and circumstances of the case and after due appreciation of evidence on record learned trial Court has come to the conclusion that amount was taken by appellant vide promissory note Ex.P/1, which was not repaid. This Court is of the view that no illegality has been committed by the trial Court in holding that a sum of Rs.50,000/- was taken by appellant from respondent for which document. Ex.P/1 has been executed. So far as amount of interest is concerned, Ex.P/1 is silent in that regard. It is nowhere stated that appellant shall be liable to pay interest @18% per annum. It is also not stated in the plaint that loan amount was given for what period. In the facts and circumstances of the case it appears that there was no justification on the part of learned trial Court in awarding interest @ 18% per annum as claimed by respondent. In view of this appeal filed by the appellant is allowed in part holding that appellant has taken loan of Rs.50,000/- from respondent and appellant is liable to pay the amount alongwith interest @ 6% per annum.