IN THE COURT OF DISTRICT JUDGE, NAGAON.

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District Judge, Nagaon. MONEY APPEAL NO. 1 OF 2011

This Money Appeal is directed against the Order & Judgment and decree dated 16-12-2010 passed by learned Civil Judge, Nagaon in M.S Case No. 10 of 2007.

Smti Nandita Acharjee W/O Dr. Parimal Archarjee,

Propritor of M/S Hindusthan Mortgage Institution, Lower Babypatty, Lumding

Dist. Nagaon, Assam. .………Appellant

– VERSUS –

1. Sri Deuti Das

S/O Late Sarudhan Das 2. Smti Mamoni Das Sri Deuti Das

Both C/O Office of the S.D.O.(Civil), Sankardev Nagar, P.O. Sankardev Nagar, Dist. Nagaon (Assam).

……….. Respondents.

ADVOCATES WHO APPEARED IN THIS CASE

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For the respondents :- None appeared

Date of argument :- 26-09-2014, 03-11-2014. Date of judgment :- 14–11–2014.

J U D G M E N T

1. This is an appeal under Order XLI

Rule 1 and 2 of the Code of Civil Procedure which is directed against the judgment and decree dated 16-12-2010 passed by learned Civil Judge, Nagaon in Money Suit No. 10 of 2007. The appeal was preferred by the appellant, namely, one Smti. Nandita Acharjee against the respondents, namely, Sri Deuti Das and Smti. Mamoni Das praying for setting aside the impugned judgment and decree passed by learned Court below.

2. The facts leading to the filing of this appeal is

that the appellant, namely, Smti. Nandita Acharjee as plaintiff having filed a suit being Money Suit No.10/2007 against defendant/ respondents Sri Deuti Das and Smti. Mamoni Das praying for recovery of money, the same was heard and decided in the Court of learned Civil Judge, Nagaon.

3. The suit of the plaintiff/appellant in brief is that

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style as “M/S Hindusthan Mortgage Institution at Lumding town under Money Lending License Registration No. CMHI, 1/87/1 dated 09-04-1987 issued by the Registrar of Money Lender, Hojai. The contention of the appellant/plaintiff is that defendants/respondents Deuti Das and Mamoni Das approached her for granting a loan of Rs.3 lakhs and promised and assured her to repay the same with interest @ Rs.12% per annum and accordingly, the plaintiff agreed to the proposal and paid a sum of Rs. 3 lakhs as loan to the defendants. Further averment in the pliant is that the defendants on receiving the amount from the plaintiff jointly executed a hand-note and money receipt on 17-06-06 in favour of her but after receiving the said amount, they failed and neglected to pay the interest as well as to repay the principal amount in spite of repeated request made by her. It is also submitted in the plaint that the plaintiff finding no other way, send a legal notice to the defendants on 20-02-07 demanding repayment of the loan amount which the defendant duly received on 26-02-07 and thereafter, the defendants has paid Rs.60,000/- on 04-03-07, Rs.40,000/- on 21-03-07, Rs. 30,000/- on 12-04-07 and Rs.20,000/- on 30-04-07 but failed to liquidate the whole amount. According to the plaintiff the conduct of the defendants compelled her to file this suit for realization of the loan amount with accrued interest thereon. Hence, the suit.

4. Summon were issued to the defendants and after

receiving summons, the defendants/respondents contested the suit by filing written statement stating inter alia that there is no cause of action for the plaintiff for filing the suit, that the suit is not maintainable, that the suit is barred by Assam Money Lenders Act etc. The case of the defendants is that that they do not know Nandita Acharjee and as they were in need of money, they approached one Parimal Acharjee for loan and on their request Parimal Acharjee promised them to pay Rs.30,000/- and accordingly on 21-06-06, the said Parimal Acharjee handed over

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them two cheques of United Bank of India, AT Road, Guwahati Branch and as per these two cheques they have withdrawn Rs.29,990/- only. Further plea of the defendants is that it was agreed by them that they will pay Rs.900/- in every month for the said loan amount with interest 3% per annum and the defendant No.1 has already paid Rs.1800/- against the said loan amount. The defendants denied the fact of receiving any loan amount from the plaintiff. Hence, they prayed for dismissal of the suit.

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5. Upon the pleadings of the parties the following issues were framed

:-1.Is there any cause of action for filing the suit

against the defendants ?

2.Whether the suit is maintainable in its present

form ?

3.Whether the defendant executed hand note

jointly on 17-06-06 in favour of the plaintiff ?

4.Whether the suit is barred by Assam Money

Lender’s Act ?

5.Whether the defendants borrowed money from

Parimal Acharjee ?

6. Whether plaintiff is entitled to any relief, is so,

what ?

6. In support of her claim, the plaintiff side adduced oral

evidence of one P.W. and also adduced documentary evidence while the defendant side did not adduce any evidence in support of their written statement. After hearing arguments for both the contesting parties, the learned trial judge delivered her judgment vide order dated 16-12-2010 and dismissed the plaintiff’s suit with cost.

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7. Being highly aggrieved by and dis-satisfied with the

impugned judgment and decree dated 16-12-2010 passed by the learned Civil Judge, Nagaon, in M.S. No. 10/2007, the appellant/plaintiff has preferred this appeal on the following grounds amongst others :-

i. That the learned court below has acted on

surmise without considering the acknowledgment of part of Debt & payment;

ii. The learned court below failed to see that no

defence side had adduced any evidence to prove their pleading and as such, the decision on the issue No.4 of the Learned Lower Court is perverse and liable to be set aside ;

iii. That the learned court below has hold that the

Money Lending Certificate which was issued by the Registrar of Money Lender, Hojai in the year 1987 but on the other hand held that the Signature of Registrar of the Money Lender is not available but Asstt. Registrar of Co-op. Societies, Hojai available in the renewal form;

iv. That the learned court below has mis-conceived

the whole aspect of the suit while deciding the issue No.2;

v. That the learned lower court failed to see that

the Renewal Certificate of the Money Lenders was produced and exhibited without any objection;

vi. That the learned lower court failed to decide the

issue No.3- “Whether the defendants executed hand note jointly on 17-06-06, as and when there is no contradictory evidence from the

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Defendants/Respondents side about the execution of the Hand-Note in favour of the plaintiff on 17-06-06, the learned lower court cannot reply merely on the pleadings and as such, the Judgment and decree passed by the learned lower court is against the provision of law and labile to be set aside;

vii. That the learned lower court has wrongly framed

issued No.5;

viii. That the learned lower court failed to apply his judicial mind while passing the impugned judgment and decree rather acted on surmise resulting miscarriage of justice, which is liable to set aside;.

8. I have heard arguments for appellant side only.

No argument is advanced from the respondent side. I have also perused the impugned Judgment and decree dated 16-12-2010 passed by the learned Civil Judge, Nagaon, in M.S. No. 10/2007 and the materials available in the record.

9. Now, the point for decision is – whether the

impugned Judgment and decree appealed against is sustainable in law?

10. My findings and reasons thereof are as follows :-

During hearing of the appeal, the learned counsel for

the appellant submits that the learned Trial Court erred in law as well as in fact by passing the impugned Judgment and decree dated 16-12-2010 in as much as it has failed to appreciate the evidence oral or documents on record in its correct prospective and proposition of appreciation of law and in that view, the impugned judgment is required to be set aside and quashed.

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Further submission of the learned counsel for the appellant is that the learned Trial Court has failed to see that the money lending certificate was issued by the Registrar of Money Lending to the plaintiff in the year 1987 and misconceived of the facts that as the Signature of Registrar of the Money Lender is not available but Asstt. Registrar of Co-op. Societies, Hojai is available in the renewal form, the said document can not be accepted as a valid document to held that the plaintiff delivered the borrowed amount under the license of money lending business. He further submits that the learned court below while deciding issue No.3 failed to consider the fact of the execution of the Hand-Note in favour of the plaintiff on 17-06-06 when no contradictory evidence from the Defendants/Respondents side was adduced about the execution of the Hand-Note in favour of the plaintiff on 17-06-06 and hence, the impugned judgment and decree is not sustainable in law and liable to be set aside. He, therefore, prays for allowing the appeal and set aside the impugned judgment and decree passed by the learned Court below.

On the other hand no argument advanced for the respondent side.

11. I have given my thoughtful and anxious consideration

as to the contentions raised by learned counsels of the plaintiff side. I also perused the evidence in record as well as the impugned judgment passed by learned trial Judge.

12. The specific plea of the plaintiff/appellant is that she

carries on business of money lending under Money Lending License issued by the Registrar of Money Lender, Hojai and defendants/respondents Deuti Das and Mamoni Das obtained loan of Rs. 3 lakhs from her by executing jointly a hand-note and money receipt on 17-06-06 in favour of the plaintiff/appellant. In support of her plea, the plaintiff side adduced oral evidence of

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Parimal Acharjee, the husband of the plaintiff. The plaintiff side also exhibited the hand note dated 17-06-06 signed by the defendants Deuty Das and Mamoni Das under Ext.3. The defendants side though in their written statement pleaded that they do not know the plaintiff and on their request Parimal Acharjee promised them to pay Rs.30,000/- and on 21-06-06, he handed over two cheques by which they have withdrawn Rs.29,990/- only and the defendant No.1 has already paid Rs.1800/- against the said loan amount but they failed to adduce any oral evidence in support of their pleas. Hence, it can be reasonably held that whatever plea set up by the defendants in their written statement is not true. Thus, it is seen that the defendants obtained a loan of Rs.3 lakhs from the plaintiff by executing jointly a hand-note on 17-06-2006(Ext.1) in favour of the plaintiff. The P.W.1 also executed the certificate of Registration of Money Lender in favour of Nadita Acharjee under Ext.1. After scrutiny of the document under Ext.1, it appears to me that Registration Certificate of Money Lending was issued on 09-04-1987 in favour of the plaintiff/appellant Nadita Acharjee to regulate money lending business as per provision of The Assam Money Lenders Act and the validity period of the said Registration Certificate was extended from time to time. The admitted position is that the plaintiff paid the borrowed amount to the defendants on 17-06-2006 and on appraisal of the document under Ext.1,it is found that the said Registration Certificate for money lending business was renewed by Asstt. Register of Co-operative Socities, Hojai from time to time and till 31-03-2008 while according to the plaintiff side the Asstt. Register of Co-operative Socities, Hojai is the authorized person to renew the said certificate. The defendant side, however failed to dispute the facts that the Asstt. Register of Co-operative Socities, Hojai is not the authorized person to issue renewed certificate for money lending business by adducing evidence. So, I have no hesitation to hold that the plaintiff/appellant while

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making payment of the loan amount has paid the same as per provision of Assam Money Lenders Act.

Thus, from the above discussion, it is seen that the findings of learned Trial Court regarding Issue Nos.3, 4 and 5 suffer from infirmities and the same are required to be interfered with and set aside .

13. Now regarding issue No.1, the plaintiff’s claimed

that she carries on business of money lending under Money Lending License issued by the Registrar of Money Lender, Hojai and defendants/respondents Deuti Das and Mamoni Das obtained loan of Rs. 3 lakhs from her by executing jointly a hand-note and money receipt on 17-06-06 in favour of the plaintiff/appellant and the defendants neglected to repay the borrowed amount and liquidated the entire loan amount. The defendant on the other hand disputed the facts asserted by the plaintiff and submitted that only an amount of Rs.30,000/- was obtained by the defendants from Parimal Acharjee and part payment was also made. Thus, it is seen that there is a bundle of facts asserted by the plaintiff side and denied by the defendants and the Civil court has jurisdiction to adjudicated upon the matter. Hence the plaintiff has cause of action to file the suit. Hence, findings of the learned Trial Court regarding Isuue No.1 is not required to be reversed.

14. The plaintiff claimed that she carries on business

of money lending under Money Lending License issued by the Registrar of Money Lender, Hojai and defendants/respondents Deuti Das and Mamoni Das has obtained loan of Rs. 3 lakhs by executing jointly a hand-note and money receipt on 17-06-06 in favour of the plaintiff/appellant. The plaintiff has filed this suit for recovery of money from the defendants in the form which is prescribed for filing a suit for recovery of money. Hence, I find that the learned trial court committed wrong while deciding this issue holding that the suit is not maintainable in its present

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form. Hence, findings of Court below regarding Issue No.2 is also required to be set aside.

15. Now, so far issue No. 6 is concern, it is seen

from the discussion and observation made in foregoing issues that the plaintiff is entitled for a decree as prayed for and as such, the findings of the learned trial court regarding to issue No.6 is also required to be interfered with and set aside.

O R D E R

16. In the result, the appeal is allowed accordingly. The

impugned Judgment and decree dated 16-12-2010 passed by the learned Civil Judge, Nagaon in M.S. No. 10/2007 is hereby set aside. The plaintiff’s suit is decreed with the following reliefs:-

A decree is passed in favour of the plaintiff for recovery of an amount of Rs.2,14,608/-(Rupees Two lacs Fourteen thousands, six hundreds and eight) only from the defendants along with further interest @ 6% per annum on the principal amount from the date of institution of the suit till recovery of the decreetal amount.

The defendants are hereby directed to pay the aforesaid amount to the plaintiff within a period of 3 (three) months from the date of passing this Judgment and order, otherwise the said money will be recoverable from them in due course of law.

The parties shall bear their own cost. Prepare decree accordingly.

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Send back the L.C.R. with a copy of this judgment to the learned trial Court.

Judgment is pronounced in an open court, written on separate sheets and enclosed with the case record.

The judgment is prepared and given under the seal of this Court and I signed and delivered this judgment on this day of 14th Day of November 2014 at Nagaon.

Dictated and corrected By me.

(Mrs.H.D.Bhuyan) (Mrs.H.D.Bhuyan) District Judge, District Judge,

Nagaon. Nagaon.

Dictation taken and Transcribed by me

(N. Rajkhowa) Stenographer.

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