GURUPADA SAHA Vs. SUDHAN SEN

JUDGEMENT

(1.) This is an appeal under Section 96 of the CPC from the judgment dated 09.08.2017 delivered in MS 23/2012 by the Civil Judge Senior Division, Court No.1. By the said judgment the suit instituted by the appellants [hereinafter, would be referred to for convenience sake, as the plaintiffs] has been dismissed.

(2.) Being aggrieved by the said judgment, this appeal has been preferred on the ground that the findings are perverse, not being based on proper appreciation of the evidence as led by the plaintiffs. Even though payment of loan to the extent of Rs.20,000,00/- in terms of the agreement dated 17.12.2011 has been 'admitted' by the defendants, but the trial court has inappropriately observed that the plaintiffs have failed to prove the mode of payment of the said loan amount and based on such finding the suit has been dismissed. Even though the said loan agreement [Exbt.1] was unregistered but the content thereof has been duly 'proved' by the attesting witnesses [PWs 3-6]. Thus, the authenticity of the said agreement [Exbt.1] cannot be questioned. It has been contended that even the defendants paid monthly rents for few months to the plaintiffs in terms of the said agreement. Such act itself is eminent indicator or proof of validity of the agreement or its operation. The plaintiffs have claimed that in the income tax return, filed in the year 2012-13, the payment of the loan amount by the plaintiff to the defendants have been shown. When the defendants did not raise any question about the resourcefulness of the plaintiffs for having the capacity of lending such huge amount, how on the basis of the cross-examination, the question whether the plaintiffs had produced the documents to show the source of payment of such loan can be raised? The trial court came to a negative observation that the capacity of the plaintiffs to pay the huge amount of loan has not been proved. But in the agreement which is a mortgaged instrument in its nature it has been clearly recited that a sum of Rs.20,000,00/- has been given by the plaintiffs as loan to the defendants [the respondents No.1-3 herein]. Even though the witnesses including the attesting witnesses have categorically admitted the document and stated about how that document [Exbt-1] came into being, but the trial judge did not believe that conclusive evidence perversely. It has been further submitted that as per the agreement one month's rent was paid to the plaintiff. Based on the judgment, the suit has been instituted. The background of transaction has been depicted. The defendant No.1 suffered a huge loss approximately amounting to Rs.20,00,000/- and he required further capital for his business. The relevant facts leading to the controversy can be encapsulated from the grounds but for purpose of reference the facts leading to the institution of suit be introduced briefly. The plaintiffs and the defendants No.1 and 2 are well acquainted to each other being the businessman. In the first part of 2011, the said defendants for stimulating their business approached the plaintiffs for having a loan to the extent of Rs.20,00,000/-. On their request the plaintiffs made payment of the said amount by 3/4 intalments and the last payment was made in the month of December, 2011 on execution of an agreement dated 17.12.2011 effective from 31.12.2011 to 31.12.2012. The said agreement was notarized for its authentication. By the said agreement, the defendants No.1-3 being the owners of four shop premises in possession of the defendants No.4-7 as tenants secured loan by agreeing to the conditions inter alia, that if the defendants No.1-3 failed to repay the loan within a period of one year, they would sell the shop premises to the plaintiffs by executing registered sale-deed. It was further agreed that if the defendants No.1-3 intends to sell the shop premises during the subsistence of the said agreement, preference would be given to the plaintiffs. It was also agreed between the plaintiffs and the defendants No. 1-3 that the plaintiffs would collect the rent from the defendants No.4-7 for the period as reflected in the agreement i.e. one year and the plaintiffs was also empowered to evict the defendants No.4-7 on three months prior notice. In pursuance to the said agreement, the defendants No.4-7 made payment of rent to the representatives of the plaintiffs only for the month of January, 2012 on 13.02.2012, but they failed to pay the rent for the remaining period. As such the plaintiffs have made contact with the defendants No.1-3 informing the fact of denial of payment of monthly rent and thereby the plaintiffs asked the defendants to return the loan amount along with the loss they have suffered by investing the huge amount to the extent of Rs.20,00,000/-. It has been revealed to the plaintiffs that at the dictate of the defendants No.1-3, the defendants No.4-7 had refused to pay the rent to the plaintiffs. The defendants even denied to repay the loan, despite the specific request made by the plaintiffs in presence of some other persons on 12.07.2012 forcing them to approach the court seeking recovery of the said money including the business loss that has been occasioned by non-payment of the said loan amount. The defendants No.2 and 3 through their written statement have denied all the allegation of the plaintiffs. Even the defendants denied to have entered into an agreement with the plaintiffs and as such the story of taking loan from the plaintiffs has also been projected as untrue. The defendant No.1 by filing a separate written statement denied all the allegations as leveled by the plaintiffs. He has stated in his written statement that the business under name and style of M/S Sen Software Solutions Private Limited was being carried on in the shop premises at the ground floor and the first floor taking those premises on rent. The defendant No.1 has also stated in his written statement that he had purchased furnitures, computer and other articles along with one UPS, tiles for the room, air conditioner, PVC doors, electrical items, revolving chairs, router, modem, computer server and other accessories by taking loan from the State Bank of India by mortgaging the landed property. Now those articles, according to the defendant No.1 are in custody of plaintiffs and they have been using those articles for their business. The defendant No.1 came to learn from a secret source that the plaintiffs have sold certain valuable articles from his firm. The defendant No.1 has thus contended that due to illegal restraints by the plaintiffs he sustained a loss to the tune of Rs.20,00,000/- from the month of October, 2010 and till date. The property of the shop premises have been claimed to be valued at more than 9,00,000/-. As such the defendant No.1 prayed for granting a decree for an amount to Rs.29,00,000/- against the plaintiffs dismissing the suit.

(3.) Based on those rival pleadings the following issues were framed by the Civil Judge: