BILLA SINGH Vs. FIRM NARAIN MAL DURGA DASS

JUDGEMENT

(1.) The short point involved in this appeal is whether the defendant is liable to pay to the plaintiff the costs awarded by the learned trial court. The brief facts are that the respondent-firm (for short the plaintiff) had filed a suit for the recovery of Rs. 10,500/- which sum was made up of Rs. 7700/- as principal and Rs. 2800/- as interest. It was averred by the plaintiff that the defendant had borrowed the principal amount on interest and had executed a bahi entry.

(2.) The defendant contested the suit on various grounds and inter alia pleaded that the plaintiff-firm was a money-lender and was not entitled to interest. The learned trial Court held that the plaintiff had borrowed Rs. 7700/- and had executed the bahi entry in dispute. It further held that the plaintiff was not a money-lender. Accordingly, the plaintiff's suit for the recovery of Rs. 10,500/- with costs was decreed. Future interest at the rate of 6 per cent per annum on the above amount from the date of the institution of the suit till realisation was also awarded under the decree. Feeling aggrieved, the defendant filed an appeal while the plaintiff filed cross-objections. The defendant had challenged the whole decree. In cross- objections the plaintiff had claimed for stamp duty and the penalty which he had to pay in respect of the bahi entry which had been impounded being an unstamped agreement. While calculating costs these items were not included in the memorandum of costs prepared by the trial Court. The appeal and the cross-objections were heard by the learned District Judge, Faridkot. He upheld the findings of the learned trial Court and the defendant had executed the bahi entry in dispute for consideration. He further held that the plaintiff was a money-lender as defined in the Punjab Registration of Money Lenders Act, 1938 but it had obtained the money-lender's licence during the pendency of the suit. He further held that the plaintiff had not complied with the provisions of the Punjab Regulation of Accounts Act, 1930 (for short 1930 Act) and, therefore, under section 4 of the 1930 Act, the plaintiff was not entitled to costs and interest. He, accordingly partly accepted the defendant's appeal and modified the decree of the learned trial court to the extent that a decree for Rs. 7700/- with proportionate costs was passed in favour of the plaintiff against the defendant. The defendant had also challenged the costs awarded by the learned trial Court but that objection was overruled as he had not paid the court fee on the amount and in that connection reliance was placed upon Kundan Lal v. Ram Partap, 1936 AIR(Lah) 469,wherein it was remarked :-

(3.) Both the learned Courts below have given a concurrent finding of fact to the effect that the defendant had executed the bahi entry, Exhibit P.1 for consideration. It being a finding of fact is not liable to be interfered with in second appeal. It was not argued by the learned counsel for the appellant that finding is not based upon evidence.