OM PRAKASH Vs. MOHAN LAL YADRAM AADTI

JUDGEMENT

(1.) THIS first appeal under Section 96 CPC has been filed against the judgment and decree dated 28.08.1992, passed by the trial court i.e. the Additional District Judge No.1, Alwar in civil suit No.25/1982 dismissing the plaintiffs -appellants' (hereinafter 'the plaintiffs') money suit for a sum of Rs.15,750/ -. The facts of the case are that on 17.03.1971 the father of the plaintiff No.1, Moti Lal had advanced a loan of Rs.12,000/ - to the respondent -defendant -Firm -M/s. Mohanlal Yadram Aadti and its partners (hereinafter 'the defendants) by way of cheque No.365238 drawn on Punjab National Bank, Alwar and encashed. It was submitted that against the said amount of Rs.12,000/ -, a sum of Rs.3,000/ - was repaid by the defendant -Firm and its partners on 09.09.1971. In respect of remainder amount of Rs.9,000/ - a promissory note was drawn by the defendant -Firm through its partner one Kailash Chander (respondent No.3 before this Court) undertaking to repay the aforesaid outstanding amount of Rs.9,000/ - within a period of two years and if not so done, to also pay interest thereon @ 9% p.a. However, in terms of the promissory note dated 09.09.1971, the sum of Rs.9,000/ - due and outstanding against the defendant -Firm was not fully repaid within the stipulated period of two years and consequently, the defendant -Firm and its partners were liable to pay the outstanding principal amount along with due interest @ 9% p.a. thereon till the date of payment. It was stated that subsequent to the executing of the promissory note by Kailash Chander, only sums of Rs.300/ - were paid on 25.07.1974, Rs.50/ - on 05.06.1977 and Rs.100/ - on 28.05.1980, aggregating to Rs.450/ - which was recorded at back of the promissory note also duly signed by Kailash Chander. It was stated that no amount had thereafter been paid either towards the interest or the principal and consequently a sum of Rs.15,750/ - was due and outstanding against the defendant -Firm and its partners. On service of notice, similar written statements of denial on behalf of the defendant Nos.2, 3 & 4 were filed. Defence set up was that the plaintiffs were not the successors of the deceased Moti Lal; that Moti Lal had advanced no loan amount of Rs.9,000/ - or at all under a promissory note dated 09.09.1971 or otherwise; that the defendant -Firm had been in business only till 1970; no amount as loan had ever been obtained from Moti Lal and no repayment thereon either on 09.09.1971 or thereafter on 25.07.1974, 05.06.1977, 28.05.1980 had been made towards the discharge of liability on the loan amount. Kailash Chander, defendant No.3 before the trial court in his written statement specifically denied that the promissory note dated 09.09.1971 was executed by him. It was averred in the alternative that in the event the promissory note dated 09.09.1971 was proved before the trial court, the defendant No.3 was not liable in view of the fact that the defendant -Firm -M/s. Mohan Lal Yadram Aadti had ceased to engage in business in the year 1970 i.e. before the loan was advanced under the promissory note dated 09.09.1971. It was also submitted that in any event defendant No.3 was not a working partner. It was also pleaded that the suit was not maintainable in view of the fact that Moti Lal did not have licence under Sections 22 & 23 of the Rajasthan Money Lenders Act, 1963. On the basis of the pleadings of the parties, fifteens issues were framed by the learned trial court which are as under : .........[vernacular ommited text]........... The plaintiffs relied upon four witnesses primarily amongst whom was Ramesh Chand (PW -2). The plaintiffs also appeared before the trial court and deposed that they were the successors of Moti Lal and entitled for the recovery of amount due to him. The plaintiffs in respect of their case relied upon the succession certificate (Ex -1), Notice to the defendant -Firm and its partners (Ex -2), postal receipts (Ex -3,4,5,6,7,8) as also certificate of Punjab National Bank, Alwar stating that cheque No.365238 dated 17.03.1971 for a sum of Rs.12,000/ - had been encashed in the account of the defendant -Firm -M/s. Mohan Lal Yadram Aadti, Kedalganj dated 05.11.1982 (proved and exhibited), Promissory Note dated 09.09.1971 (Ex -9 - wrongly marked as Ex -11 in the trial courts' judgment). In defence, only Mohan Lal and Prabhu Dayal appeared as witnesses DW -1 & DW -2 respectively. It is important to note that Kailash Chander, the executor of the promissory note dated 09.09.1971, kept himself away from the witness box. Findings on issue Nos.5, 6, 7, 8 & 13 were struck for the plaintiffs. However, the trial court dismissed the plaintiffs' suit on finding issue Nos.1, 2, 3, 4, 9, 10, 11, 12 & 14 against them. Hence this appeal. Consideration herein in the facts of the case would of necessity be confined only to issues decided by the trial court against the plaintiffs resulting in the dismissal of the suit. Mr. M.A. Khan, appearing for the plaintiffs in this first civil regular appeal, submits that the judgment and decree of the learned trial court dismissing the plaintiffs' money suit for a sum of Rs.15,750/ - along with future interest thereon is absolutely perverse, based on misreading of evidence, misdirected in law and liable to be set aside. Counsel submitted that the learned trial court without any just cause has disbelieved Ramesh Chand (PW -2) stating that his accompanying Moti Lal when the promissory note dated 09.09.1971 was purportedly executed by Kailash Chander, a partner of defendant -Firm -M/s. Mohan Lal Yadram Aadti was not credible and he was a chance witness. Counsel submitted that the trial court was also wrong in discarding the evidence of Ramesh Chand (PW -2) on the ground of his being merely 19 years of age. Counsel submitted that Ramesh Chand (PW -2) is admittedly the nephew of the deceased Moti Lal and it was neither improper nor contrary to the normal course of human conduct for a nephew to accompany his uncle on a given day. It was submitted that the evidence of Ramesh Chand (PW -2) otherwise remained unshaken in his cross -examination and there was thus no reason to disbelieve it on speculative ground. Counsel further submitted that the promissory note dated 09.09.1971 (Ex -9) was thus proved by the evidence of Ramesh Chand (PW -2) and no evidence in rebuttal having been brought before the trial court with the defendant No.3 Kailash Chander - the executor of the promissory note - refusing to enter the witness box, the trial court ought to have found the issue of execution of promissory note dated 09.09.1971 having been proved. Counsel submitted that similarly endorsement at the back of promissory note by way of signature of Kailash Chander recording the payment on account of interest on 25.07.1974, 05.06.1977 & 28.05.1980 also remained un -controverted. Counsel submitted that in this view of the matter, the learned trial court erred in deciding issue No.2 against the plaintiffs. Counsel submitted that issue No.1 was also proved for the plaintiff by virtue of the documentary evidence laid by the plaintiffs before the trial court in the nature of certification of Punjab National Bank, Alwar as also the evidence of Girdhari Lal (PW -3), the Bank Manager, who stated that cheque No.365238 dated 17.03.1971 issued by Moti Lal was credited in the account of the defendant -Firm. Counsel submitted that in this state of the evidence uncontroverted as it was, the learned trial court committed gross error in deciding issue No.1 against the plaintiffs on the mistaken premise that the loan was not proved even if the transaction was. It was submitted that it was for the defence to show that the proved receipt of Rs.12,000/ - in the first instance was not a loan but partook the character of a gift or consideration for goods or service supplied. This burden not having been discharged, issue No.1 ought to have been decided for the plaintiffs. Counsel submitted that the findings of the trial court on issue No.4 were only consequential to the findings on issue Nos.1 & 2 having been wrongly arrived at for the reasons referred above. The said findings of the trial court on issue No.4 was thus also liable to be quashed and set aside as the plaintiffs' evidence of payment of Rs.450/ - on different dates by the defendant -firm through its partner Kailash Chander remained unchallenged. Counsel submitted that in this view of the matter, the promissory note dated 09.09.1971 for a sum of Rs.9,000/ - was proved to have been executed by Kailash Chander, a partner of defendant -Firm -M/s. Mohan Lal Yadram Aadti. Counsel has submitted that the learned trial court failed to appreciate the difference between the closure of the business of a firm with its dissolution and thereupon wrongly decided issue Nos.10 and 12 against the plaintiffs. It was submitted that a dissolution of a partnership firm can be brought about only in terms of Section 63 of the Indian Partnership Act, 1932 (hereinafter 'the Act of 1932') by way of a statutory notice to the Registrar in regard thereto. It was submitted that in his evidence, Prabhu Dayal (DW -2) admitted before the trial court the fact that even though the business of the defendant -Firm was discontinued, the firm was not dissolved as no notice of dissolution of the Firm was sent to the Registrar. Counsel submitted that the consequence of this obtaining legal and factual position would be that a partner of the defendant -Firm having executed a promissory note in favour of Moti Lal, the predecessor in interest of the plaintiffs, on 09.09.1971 and the defendant -Firm not having been dissolved prior thereto, the defendant -Firm itself and its partners would be liable jointly and severally for the amount availed of under the aforesaid promissory note. It has been submitted that it was nobody's case, nor it could have been that Kailash Chander in spite of purporting to act for the defendant -Firm would alone be liable and the defendant -Firm stand absolved. All partners of the Firm whether active or sleeping would be liable for the debts of the firm. Mr. R.K. Mathur, Sr. Advocate with Mr. Atul Sharma, appearing for the defendants, has supported the judgment and decree of the trial court passed on 28.08.1992 stating that it is a well considered judgment passed by the trial court on the appreciation of the evidence before it and therefore ought not be interfered with by this Court. I have considered the arguments of the counsel appearing for the plaintiffs and the defendants. The crux of the matter in the case before this Court relates to the question as to whether or not on 09.09.1971 the promissory note (Ex -9) was executed on behalf of the defendant -Firm by its partner Kailash Chander. Aside of filing the promissory note dated 09.09.1971 before the trial court as Ex -9, Ramesh Chand (PW -2) appearing in Court as the plaintiffs' witness stated that on the date of signing, he had accompanied his uncle Moti Lal and seen Kailash Chander execute the promissory note on 09.09.1971 on the firm's letter head. In my considered opinion, the conclusion of the trial court finding Ramesh Chand (PW -2) as a chance witness also otherwise unworthy of any credence for reason of his age of 19 years is wholly unsustainable. A boy of 19 years of age is major in terms of the India Majority Act,1875 and his evidence under the Indian Evidence Act, 1872 cannot be brushed aside, diluted or belittled for reason of his mere age. As far as Ramesh Chand (PW -2) being a chance witness is concerned, in my considered opinion, the reasoning of the trial court is based on its mere ipse dixit without anything more. Admittedly Ramesh Chand (PW -2) was a nephew of Moti Lal and this fact has not been controverted in the evidence before the trial court. For a nephew to accompany his uncle is not unusual or contrary to the normal course of human conduct. Consequently, the presence of Ramesh Chand (PW -2) at the time of execution of promissory note on 09.09.1971 could not have been doubted by the trial court. More so because of the fact that in spite of the evidence of Ramesh Chand (PW -2) proving the promissory note dated 09.09.1971 (Ex -9), the defendant No.3 Kailash Chander did not gather the courage to appear in the witness box to negate the assertion on oath in the evidence of the plaintiffs that he had signed the promissory note dated 09.09.1971. In my considered view, the failure of Kailash Chander to enter the witness box in spite of his written statement of denial in the suit and the evidence of the plaintiffs, is a circumstance on which adverse inference ought to have been drawn against the defendants. For this reason, I am of the view that the plaintiff had been able to prove the execution of promissory note by Kailash Chander on behalf of defendant -Firm - M/s. Mohan Lal Yadram Aadti on 09.09.1971 promising to pay the amount of Rs.9,000/ - at the end of two years without interest and thereafter with interest @ 9% p.a. The findings of the trial court on issue No.2 therefore are liable to be quashed and set aside. Similarly, in my considered opinion, the finding of the trial court on issue No.1 are also liable to be set aside as the Bank Manager of Punjab National Bank, Alwar had appeared in the witness box to support Exhibit -10/1 whereby a sum of Rs.12,000/ - vide cheque No.365238 drawn by Moti Lal was stated to have been debited to his account and credited to the account of the defendant -Firm. Oddly, the trial court held that even though the payment of Rs.12,000/ - by way of a cheque by Moti Lal, the predecessor in interest of the plaintiffs, to the defendant -Firm had been proved, the nature of the transaction as a loan was not. In my considered opinion, once the payment of Rs.12,000/ - by way of cheque by Moti Lal to the defendant -Firm was proved, the onus was on the defendants to negate the nature of the transaction as a loan and bring forth evidence to give it the colour of a non -loan transaction. No evidence was set out in this regard. In my considered opinion, a mere denial was insufficient for discharging the onus on the defendants on issue No.1 consequent to the initial discharge of burden in respect thereof by the plaintiffs. The finding of the trial court on issue No.1 thus deserves to be set aside and issue No.1 found for the plaintiffs. On issue No.3, in my considered opinion, the promissory note dated 09.09.1971 (Ex -9) having been proved and the payment of Rs.9,000/ - not having been admittedly made within two years by the defendant -Firm, the plaintiffs were entitled and the defendants were liable to pay interest thereon @ 9% p.a. in terms thereof till the date of payment. Issue No.4 similarly pertaining to the payment of Rs.300/ - by the defendant -Firm M/s. Mohan Lal Yadram Aadti on 25.07.1975, Rs.50/ - on 05.06.1977 and Rs.100/ - on 28.05.1980 also has to be decided in favour of the plaintiffs in view of the uncontroverted evidence of Ramesh Chand (PW -2) on the issue of execution of promissory note dated 09.09.1971 and repayments recorded at the back thereof signed by Kailash Chander, yet his not entering the witness box establishing the payment of the aforesaid amount of Rs.300/ -, Rs.50/ - & Rs.100/ - respectively to Moti Lal on 25.07.1975, 05.06.1977 & 28.05.1980 respectively by the defendant -Firm - through Kailash Chander. In my considered opinion issue No.14 pertaining to limitation also has to be decided in favour of the plaintiffs and against the defendant -Firm with reference to Section 19 of the Limitation Act, 1963 (hereinafter 'the Act of 1963') which is reproduced as under :