PRATAP NARAYAN SINGH DEO Vs. RAMAKRISHNA DEO

JUDGEMENT

(1.) THIS is a defendants appeal against the judgment and decree passed by learned Sub -ordinate Judge, Jeypore in Money Suit No.19 of 1978. The present respondent as plaintiff filed that suit pleading inter alia that the defendant who is his elder brother, requested him for a loan and in response to such request, he advanced a loan of Rs.25,000/ - on 9.5.1975 as a gesture of goodwill and accepting the loan the defendant executed a promissory note agreeing therein to repay the same with interest at the rate of 12% per annum on demand within a period of 12 months. It was alleged that the defendant did not repay the loan or interest within the stipulated time inspite of repeated demands and so the plaintiff sent an advocate notice on 1.4.1976 demanding repayment. Though the notice was received by the respondent, no payment was made. So the plaintiff filed the suit for recovery of loan amount with interest thereon. The appellant -defendant in his written statement admitted to have borrowed Rs.25,000/ - from the plaintiff on execution of a promissory note. He, however, took a stand that no interest was contemplated on the loan and that the loan has been discharged. He also challenged the maintainability of the suit on the ground that the plaintiff is a money lender in regular course of business and his wife, who filed the suit as his power of attorney, has no locus standi to file the suit. It was specifically alleged that the plaintiff is not in proper mental condition and he never executed the power of attorney in favour of his wife.

(2.) THE trial Court framed as many as six issues and accepted evidence of the parties. The plaintiff examined two witnesses and produced documents such as, power of attorney, promissory note and office copy of the advocate notice, which were marked as Exts.1 to 3 respectively. The defendant did not examine any witness but proved some signatures of the plaintiff on Ext.1 which were marked as Exts. A to A/4, B and C. On consideration of all these evidence, the trial Judge came to the conclusion that the defendant borrowed a sum of Rs.25,000/ - from the plaintiff and executed promissory note (Ext.2) agreeing to repay the loan with interest @ 12% per annum, but he did not repay the loan and interest and that the loan has not been discharged and the loan amount along with interest is recoverable from the defendant. Learned trial judge also held that the plaintiff is not money lending in regular course of business and the power of attorney executed in favour of his wife is genuine and the suit is maintainable by the power of attorney. Accordingly, he decreed the suit and directed the defendant to repay Rs.34,000/ - to the plaintiff along with pendente lite and future interest @ 6% per annum on the principal amount of Rs.25,000/ -. Not being satisfied with the said judgment and decree, the defendant -appellant has filed this appeal.

(3.) NO one appears on behalf of the respondent.