KUBER RAJ RAI Vs. SARAN THAPA

JUDGEMENT

(1.) This is a regular first appeal against the judgment and decree, both dated 28.02.2019, passed by the learned District Judge, Special Division-I, Sikkim at Gangtok (the learned District Judge), whereby the Money Suit No. 165 of 2017 (the Money Suit) filed by Kuber Raj Rai, the appellant (plaintiff) was dismissed. The Money Suit was filed on 26.10.2017 against the two respondents, i.e., Saran Thapa (defendant no.1) and Ranjit Rai (defendant no.2). For clarity, they shall be referred to as plaintiff and defendants.

(2.) In the plaint, the plaintiff pleaded that in connection with a civil work, i.e., 'Mastic Alphabet and Repairing of Road Surface, Drain, etc., in between Rangpo - Ranipool (018.500 kms) under 13th Finance Commission during 2013-2014 of Government of India, Office of the Central Public Work Department, Matigara, Siliguri - 734001, Dist. Darjeeling' (the civil work), the defendants had taken a loan of Rs.30,60,000/- from the plaintiff on various dates through separate money receipts as detailed in paragraph 1 of the plaint. On 1.10.2014, the defendant executed a document titled loan agreement (exhibit-5) in which they acknowledged the receipt of Rs.30,60,000/- as loan amount from the plaintiff and agreed to return it along with interest of Rs.5,00,000/- on or before 14.11.2014. Inspite of the demands and assurances, the defendants failed to pay the amount of Rs.35,60,000/-. On 19.12.2014, the plaintiff sent a legal notice demanding payment within 15 days of its receipt. The defendants failed to comply with the legal notice. According to the plaintiff, the cause of action for the suit first arose on 1.10.2014 when the document titled loan agreement was made and thereafter on 14.11.2014, when the defendants failed to pay the sum of Rs.35,60,000/- on expiry of fifteen days of the legal notice dated 19.12.2014 and continues till date. The plaintiff therefore prayed for recovery of Rs.35,60,000/- from the defendants jointly and severally for payment of interest @12% per annum on the said amount and cost of the suit.

(3.) On 27.12.2017, the defendants filed their written statements. They took various preliminary objections including the maintainability of the suit. They pleaded that the plaintiffs had not come with clean hands and had concealed material facts trying to mislead the court. It is stated that the defendant no.1 used to work as an assistant to the plaintiff. The defendant no.2 was the plaintiff's cousin and a government employee by profession. Whereas the plaintiff is a first-class contractor, the defendants had neither knowledge or experience nor the required documents and investment for pursuing contract works. The defendant no.1 was employed by the plaintiff and the defendant no.2 was sometimes approached by the plaintiff to help him with his miscellaneous works for his ongoing contracts. The plaintiff had promised the defendants verbally and in writing that in return for helping him out the plaintiff would monetarily compensate and reimburse them. It was asserted that the plaintiff had himself undertaken the civil work and the defendants had been asked to help the plaintiff. The defendants had not taken any loan from the plaintiff and that, the four money receipts were not executed against the loan taken by them. The money receipts handed over by the plaintiff to the defendants were for paying wages of labourers, payment to suppliers and some paid to them as commission, compensation, and reimbursement for their health. The defendants were made to endorse on the loan agreement fraudulently, under coercion and on misrepresentation. It was alleged that the plaintiff was fraudulently trying to extort money from the defendants by misusing the documents submitted by the defendants as security with the plaintiff on good faith. The 'suit' filed by the plaintiff against defendant no.1 under section 138 and 142 of the Negotiable Instrument Act, 1881 was rightly dismissed. The defendant no.2 received the legal notice in utter shock and thereafter, went to meet the plaintiff. The plaintiff apologetically assured him that he meant no harm or any court litigation. After proper verification of his fund account handled by the defendants, the plaintiff issued a proper receipt to the defendants discharging them of their liabilities.