PARMANAND JAIN Vs. FIRM BABULAL RAJENDRA KUMAR JAIN

JUDGEMENT

(1.) This judgment shall also dispose of First Appeal No. 153 of 1971. The facts giving rise to these appeals are that the plaintiff Parmanand Jain filed a suit on 9th October, 1968 for recovery of a sum of Rs. 10,041 against the defendants Choudhary Babulal and his son Rajendra Kumar. The plaintiff alleged that the defendants borrowed from him on 24th November 1967 a sum of Rs. 9,081 at 12 per cent interest. It was further alleged that the defendant Babulal executed a hand-note on the same date in the plaintiff's favour. The plaintiff in addition to the principal amount of Rs. 9,081 claimed interest amounting to Rs. 954 upto the date of the suit at 12 per cent and Rs. 6 as notice charges. The decree against Rajendra Kumar was claimed on the basis that the defendants carried on a joint business of Adhat in the name of Babulal Rajendra Kumar and the loan was taken for this business. The defendant Rajendra Kumar pleaded that he had nothing to do with the suit transactions and that the business carried on by Babulal was this separate business. The defendant Babulal pleaded that the plaintiff carried on the business of moneylending, that the plaintiff used to deposit in the defendant's shop cash from time to time, and that on 24th November 1967 the account of the deposits made by the plaintiff was gone into and Rs. 9,081 were found due against the defendant. According to Babulal's case, the hand-note was executed for this amount which was found due after accounting and that nothing in cash was advanced as loan on that date to the defendants. It was also pleaded that the hand-note amounted to a bond and being understamped was invalid. It was further pleaded that the amount of the bond included interest to which the plaintiff was not entitled as he never sent annual accounts to the defendant as required under the law.

(2.) The trial Court held that no cash was advanced to the defendants on 24th November 1967, and that the amount of Rs. 9,081 was found due after the previous accounts between the parties were gone into. It was also held that the plaintiff was a money-lender and that as he did not send annual accounts as required under the Money Lenders Act, he was not entitled to any interest. The Court further held that the hand-note amounted to bond. The document was, however, admitted after payment of duty and penalty. As regards Rajendra Kumar, the Court held that he was also liable. In view of these findings, the trial Court decreed the suit for the sum of Rs. 9,081 with interest pendente lite at the rate of 4 per cent on the condition that the plaintiff should produce a valid registration certificate under the Money Lenders Act within two months from the date of the decree. The parties were directed to bear their own costs. It is against this decree that the plaintiff has filed First Appeal No, 111 of 1971 and the defendants have filed First Appeal No. 153 of 1971. As both the parties have come up in appeal, the entire controversy is again open in this Court.

(3.) The first question to be decided in this case is whether the plaintiff is a money lender. The plaintiff has examined himself as P.W. 1. His statement is that he is a farmer and that he used to sell his agricultural produce in the Adhat of the defendants who carried on Adhat business. The sale price of the agricultural produce sold by him in the Adhat used to remain lying with the defendants on which they paid interest. The plaintiff has further stated that he used to obtain from the defendants from time to time as much money as he needed from his account. The plaintiff has also stated that he does not do any money lending business. As regards the transaction in suit, the plaintiff's case is that two days before 24th November 1967 the parties settled their accounts and the; plaintiff received Rs. 9,081 which he advanced as loan on that date to defendants and the defendant Babulal executed the hand-note Ex. P-1 promising to repay that amount at 12 per cent interest. The plaintiff admitted in cross-examination that on 10th October 1966 there was a similar transaction and after the accounts were gone into the plaintiff received Rs. 8,000 from the defendants which he advanced as loan to them on a hand-note executed by the defendant Babulal. The said hand-note is Ex. D-1. Babulal examined himself as D.W. 4. He has stated that the plaintiff used to sell foodgrains in his Adhat and he also used to deposit cash from time to time. Babulal has further stated that six monthly accounts used to be settled and he used to give hand-notes in respect of the amount found due in favour of the plaintiff. Babulal has also stated that the plaintiff did not advance any cash loan either on 24th November, 1967 when Ex. P-1 was executed, or on 10th October 1966 when Ex. D-1 was executed. On a consideration of the evidence, it appears to us that no cash was advanced by the plaintiff to the defendants either on 10th October 19.66 or on 24th November 1967. The fact appears to be that on these dates the parties settled the accounts of the sale-proceeds of the agricultural produce which the plaintiff used to sell in the defendant's Adhat and in respect of the amount found due in favour of the, plaintiff the defendant Babulal executed the hand-notes Ex. D-1 and Ex. P-1. It also appears that when Ex. P-1 was executed the old hand-note Ex. D-1 was returned to the defendants. However, we do not accept the statement of Babulal that the plaintiff used to deposit cash in his shop or that the accounts used to be settled six monthly. The defendants' books of account have been produced in Court. But the learned counsel for the defendants frankly admitted before us that in the Rokad the sale-proceeds of agricultural produce are also shown as cash transaction and that on the basis of the accounts produced it cannot be said whether any particular item was a cash advance or an entry relating to sale price of the plaintiff's agricultural produce sold in the defendants' Adhat. The examination of the accounts produced by the defendants goes to show that they have not produced the Nakal Bahi relating to sale of the agricultural produce. Had that Bahi been produced, it could possibly have been found out whether all the transactions in the Rokad relate to sale of agricultural produce or whether the plaintiff on any occasion made any cash deposit with the defendants. We may here mention that the defendants have produced those entries of the Nakal Bahi which relate to calculation of interest. But the entries relating to the sale of agricultural produce have not been produced. The non-production of the relevant entries of the Nakal Bahi is a circumstance which goes against the case of the defendants that the plaintiff apart from selling his agricultural produce or other foodgrains in the Adhat of the defendants also used to make cash advances or cash deposits. Certain entries in the Rokad purport to be signed by the plaintiff, but the signatures have neither been proved nor put to the plaintiff. The alleged cash deposits have also not been put to the plaintiff in his cross-examination. Our conclusion, therefore, is that the plaintiff never made any cash deposit in the defendants' shop nor did he make any cash advance to the defendants.