RFA 35/2008 BEFORE HON’BLE MR JUSTICE AMITAVA ROY HON’BLE MR JUSTICE P.K.SAIKIA This appeal is directed against the judgment and decree dated 29-04-2008 passed by one Sri K.N. Ahmed, Civil No. 2, Kamrup, Guwahati in T.S. No. 188/01 dismissi ng the Title Suit NO. 188/09.Being aggrieved by aforesaid judgment and decree, t he appellant herein, referred to as plaintiff, preferred this appeal on the grou nds, stated in the memo of appeal. 2. Facts and circumstances which are required for due appreciation of the a ppeal before us, in brief, are that plaintiff in Title Suit No. 188/01 is a duly constituted and incorporated Company under the Companies Act. 1956 having its R egd. Office near Industrial Estate, Okahala, New Delhi and having one Regional O ffices at Industrial Estate, Bamunimadam, Guwahati. Said company is a Govt. und ertaking and body Corporate, main objective of the same being to aid, promote an d assist development of Small Scale Industries in the country and also to engage , amongst other things, to provide financial assistance to the genuine and needy entrepreneurs. 3. The defendant No. 2 is a registered firm known as M/S Purbrashree Offset Printer, Jorhat, Assam and defendant No. 1 is the proprietor thereof. Responden t No. 1 and 2, herein, would be referred to hereinafter as defendant No.1 and d efendant No.2 respectively. Said proprietorial firm was established in 1985 and was registered with Small Scale Industrial Centre, Jorhat at all material time. In 1985, the defendant No. 1 approached the plaintiff company seeking a loan to acquire modern Printing Machine through Hire Purchases Agreement and in that re gard, on 25-05-1985, he submitted a formal application to the plaintiff company as well. 4. Thereafter, on 16.4.1986, on considering the application submitted by the def endant No. 1, the plaintiff accepted the offer, and requested him to select mach inery as per his requirement so that he could rejuvenate his existing business. On 24-09-1986, the plaintiff and defendant No.1 executed a Hire Purchase Agreeme nt for the purchase of Machine in question for Rs. 10, 04,017.00, Hire Purchase value thereof being Rs. 16, 67,590.00 only which includes the insurance charge a s well as the interest on the price of such a machine which would have accrued o ver a period of seven and a half years ending on 1.5.1994. 5. As per the terms and conditions, recorded in the Deed of Agreement dated 24-09-1986, the defendant was to have paid the entire loan amount on or before 1-05-1994 in as many as 13 instalments to be paid over a period of seven and a h alf years. While the first instalment was fixed at Rs.2,27,788.00, each of the r emaining 12 instalments was fixed at Rs.1,04,689.00 only. It is submitted that h aving executed the Higher Purchase Agreement dated 24-04-1986 with the company, the defendant made himself liable to repay the higher purchase value amounting t o Rs.16,67,590.00 in 13 instalments in the manner as aforesaid. 6. Thereafter, the defendant No. 1 fully utilized the machinery and ancill ary equipments which were provided to him by the plaintiff company on higher pur chase facilities and had been utilising the same to the full extent for about 14 years. Inspite of enjoying, the aforesaid benefits which he derived from the a greement dated 24-09-1986, the defendant No.1 had committed default in making payment towards the liquidation of loan aforesaid thereby violating the terms a nd conditions of the agreement, referred to above. Finding no other way out, the plaintiff issued a legal notice on the defendant through his learned lawyer on 22-01-1999. 7. Plaintiff, in the meantime, made all the efforts to secure the repayment of loan and tried to contact the defendant No.1 either personally and through c orrespondence demanding him to settle the outstanding dues which defendant No.1 owed to him. However, defendant No.1 made no endeavour whatsoever in liquidating said dues. It is pertinent to mention that defendant No.1 promised on several o ccasions to settle the outstanding dues and in that connection, he had executed several papers and documents acknowledging his liability towards the plaintiff. 8. On 12-12-1995, the defendant No. 1 issued a cheque in favour of the plai ntiff towards the part payment of dues. However, the said cheque got dishonoured which was also duly communicated to the defendant No. 1 for which he sent him a nother demand draft for the same amount. The plaintiff further contends that tho ugh the defendant No. 1 paid Rs. 8,95,027.00 on different occasions - yet-- as o n 31-05-2001, an amount to the tune of Rs.. 11,19,608.00 remained outstanding fo r which the plaintiff filed to suit aforesaid seeking ,amongst others, a decree for realisation of Rs. 11,19,608.00 from defendants. 9. In due course, summon was served upon the defendants. They entered appea rance and contested the suit having filed joint Written Statement. Their case in ter-alia was (a) that the suit is not maintainable in the present form ,(b) that there is no cause of action for said suit, (c) that the plaint is neither suppo rted by affidavit nor was it verified in accordance with law, (d) that the court has no jurisdiction to try the suit and (e) that the statements, made in the pl aints are self-contradictory which only serves to show that plaintiff’s case has no legs to stand on. 10. Their further case was that, the defendants/ respondents approached the plaintiff company for financial assistance to purchase the machinery. According ly, the plaintiff company provided the defendants a loan to enable them to purch ase an HMT Single Colour Shuttled Offset Printing Machine on hire purchase basis . Pursuant to such terms and conditions, recorded in the a deed of agreement dat ed 24.9.1986, the defendant No.1 deposited an amount to the tune of Rs.1,93,300. 00 on 9-9-1986 vide draft No. 201A . 11. The defendants went on to say that on 23-03-1988, the defendant No.1 aga in deposited Rs.6,54,105/- with the plaintiff company. Even thereafter, on 8.6.8 9, 12.4.89 and 16.4.89, defendant No.1 deposited an amount to the tune of Rs.1, 50,000/- by Bank Drafts, value of each of the aforesaid drafts, being Rs.50,000 /- only. Moreover, on 27.9.93, the defendant No.1 again paid the plaintiff Rs .87,702/- and so also on 28.2.96, he paid another sum of money amounting to Rs.5 0,000.00. 12. The defendants made all those payments in order to liquidate the loan in que stion fully and finally. Owing to such payments over a period of time, a huge am ount of money, same being Rs.11, 38,107/-, stood accumulated in favour of plaint iff company and such amount was sufficient enough to satisfy the entire loan tog ether with interest thereon. Being so, the plaintiff is not entitled to claim an y relief and therefore, the suit, instituted by the plaintiff needs to be dismis sed with compensatory cost. 13. Upon the above pleadings of the parties, following Issues are framed. 1) Whether the suit is maintainable in the present form? 2)Whether this Court has jurisdiction to try the suit ? 3)Whether the plaintiff provided only HMT Single Colour Shuttled Offset Printing Machine to the defendants ? 4)Whether the defendant No.1 deposited earnest money of Rs.1,96,300/- as claimed? 5) Whether the plaintiff is entitled to get decree for recovery of Rs.1 1,19,608/- with interest @ 24 % per annum from 1.6.01 ? 6) To what other relief/reliefs the parties are entitled ? 14. Both the parties had adduced evidence, oral as well as documentary befo re the trial court and the learned trial Court after hearing the arguments, adva nced by learned counsel of the parties to such suit, dismissed the same holdin g that the claim of plaintiff for getting a decree for realisation Rs.11,19,608 /- was found not tenable, vide judgment and decree dated 29.4.2008. We have also heard arguments, advanced by the learned counsel of the parties at length. 15. Basing on the statements, made in the Memo of Appeal, the learned counse l for the appellant, now, argues (a) that in rendering the judgment, impugned, the learned trial court erred in law and facts, (b) that the trial court wrong ly decided the issue No. 5 against the plaintiff in favour of the plaintiff on w rong appreciation of materials on records, (c) that trial Court failed to apprec iate pleading of the parties and evidence on record in proper perspective which caused it to arrive at a wrong findings leading to the dismissal of the suit un der consideration and (d) that Learned trial court wrongly interpreted the evide nce of P.W. 1 and DW 1 which they have rendered in their cross-examination . 16. It has also been contended (1) that the learned trial court did not at a ll consider the Hire Purchase Agreement, dated 24-09-1986 (Ext. 4), particularly Clause (1) of Ext. 4 in rendering the judgment against defendants and (2) tha t learned trial Court did not take into account that defendant No.1 did not com ply with the terms and conditions of the agreement ,vide Ext.4 under which he was required to repay the plaintiff a sum of Rs. 14,84,165/- (Rs.16,67,590.00 - Rs.1,83,426/- = 14,804.00) over a period of period of seven and a half year s in 13 instalments, last one being payable on 1.5.1994. 17. All those failures ultimately caused the ld. Trial Court to arrive at some w rong findings leading to the dismissal of the suit under consideration.On the ot her hand, the learned counsel for the defendants/respondents argues that judgmen t of the trial court was rendered on the basis of materials on record and it inv ites no interference whatsoever from this court of appeal and therefore, he has prayed this court to dismiss the appeal instead. We have carefully perused of th e impugned judgment and the decree, drawn thereon keeping an eye on facts on rec ord. 18. Such a perusal of the impugned judgment and the decree, drawn thereon, revea ls that the learned trial court framed as many as six Issues and after trial, it rendered its decisions against the plaintiff on all the issues except issue No. 2 . Learned trial court considered Issue No.2 to be redundant in view of decisio ns on other issues. The plaintiff, being the appellant herein, therefore, chall enges all the decisions of trial court, rendered on the issues, aforesaid. 19. It is found well evident from the materials on record that amongst all t he issues,aforesaid, issue No. 5 is the prima dona since it has implications an d connotation on all other issues, here-in. Being so, for convenience of discus sion and brevity as well, we take up the issue No.5 first for discussion. 20. Issue No.5. In issue No.5 ,we are called upon to decide whether on the basis of materials on record , the plaintiff can be granted a decree for reali zation of Rs.11,19,680/- along with interest @24% per annum thereon payable fro m the date of filing of suit till the time of realization of entire decreetal a mount. The defendant No.1 all along maintains that he had repaid the loan in ful l long before the filing of the suit in question and as such, on the date on whi ch the suit was filed, he did not owe a single farthing to the plaintiff and he , therefore,urges the Court to reject such a prayer on dismising the suit in ha nd. 21. In order to appreciate above contention from the side of plaintiff / app ellant, we have perused the pleadings of the parties. On such a perusal, it wou ld appear that there is no dispute, whatsoever, over the fact that the plaintiff provided the defendant a loan to purchase one HMT Single Colour Sheetfed Of fset Printing Machine. It is also not in dispute that as on 14.9.86, the price o f such a machine was Rs.10,04,017.00 only. The plaintiff, however, strenuously c laims that Hire Purchase value of the printing machine, aforesaid, was Rs.16,6 7,590/- which includes the insurance charge as well as interest which would have accrued on the price of such a machine over a period of seven and a half years ending on 1.5.1994. 22. Continuing with such a argument more and more , Plaintiff, now, submits that on 24.9.2006, defendantNo.1 deposited Rs.1,93,080/- with the plaintiff an d out of such sum, an amount to the tune of Rs. 1,83,426/- had been attuned as Earnest Money and same was adjusted against the Hire Purchase value, aforesaid, value of such purchase, being Rs.16,67,590/- and as such , the defendant was called upon to repay-not Rs.16,67,590/---- but an amount to the tune of 14,8 4,164/- only. More important, the defendant No.1 was to have paid such amount in 13 installments over a period of seven and a half years which was to commenc e on and from 1.5.1988 and which was to come to an end on 1.5.1994. 23. It has also been contended that as per aggrement , first installment wa s fixed at Rs.2,27,788/- only, whereas each of the remaining twelve installmen ts was calculated at Rs.1,04,698/-instead . The defendant No.1 was requested t o repay the loan as per arrangement ,made earlier. However, he failed to stick to such a schedule vis-a vis repayment of loan , he obtained from the plaintif f company for which the defendants ,as on 31.5.2001, owed the plaintiff an amo unt to the tune of 11,19,608/- which forms the subject matter of Title Suit No . 188 / 2001. 24. The defendants, however, strongly refuted such a claim contending that a s on 31.5.2001, he did not owe a single farthing to the plaintiff. According to him , as early as 25.2.1988, and that too, well before the time schedule, fix ed for repayment of loan commenced ,he deposited with plaintiff Company an amo unt to the tune of Rs.6,54,105/- liquating the entire loan which he obtained fr om the plaintiff. More than that, even thereafter, he paid the plaintiff a subs tantial amount of money which he paid towards the full and final satisfaction o f loan in question. 25. In order to know which of the stories, above, is true, we once again con sider very carefully the evidence ,rendered by the parties including the plaint iff (PW 1). On such a perusal of the evidence of PW 1, it would appear clear th at in his cross -examination, the plaintiff (PW 1) has unhesitatingly admitted that as early as 25.2.2006, the defendant paid the plaintiff , an amount to the tune of Rs. 6,54,105/- , and that too, well before the time schedule, fixed for repayment of loan began . What is equally important is that during the per iod from 8.6.89 to 11.3.96, the defendants evidently paid the plaintiff an a mount as substantial as Rs. 2,87,072.00. Various documents on record -- both ora l and documentery--- make such position vividly clear. 26. Although those payments ,in the facts and circumstances of the case in h and, no way fully and wholly absolved the defendants from the liability of the loan, which he admittedly obtained from plaintiff-yet then-such payments make it obligatory on the part of Plaintiff to explain as to why the defendant No. 1 still owed the plaintiff an amount as whopping as Rs. 11,19,608/- as on 31.5.2 001. The fact that as early as 24th September,1986, the defendant paid the plain tiff an amount to the tune of Rs.1,93,300/- leaves the plaintiff with no other o ption but to come up with such an explanation. 27. In our considered opinion ,the statement of accounts, maintained by pla intiff company, together with other connected documents, could have easily expl ained as to why, aforesaid amount remained due from the defendants as on 31.5.2 001, despite his having paid quite a big amount towards the satisfaction of th e loan in question. Unfortunately, such an explanation was not found forthcoming from the side of plaintiff. This makes it virtually impossible, on the part of the Court, to ascertain the amount which remained outstanding from the side of defendants as on 31.5.2001.Such a failure again obscures to a great extent the c laim of plaintiff that as on 31.5.2001, defendants owed him Rs. 11,19,608/-. 28. It is in these backdrops , let us consider the case of defendant as wel l. Coming to the case of defendants, we have found that their case is equally c onfusing, equally contradictory. Record reveals that it is the specific case o f defendants that on 25.2.88, defendant No.1 deposited with the plaintiff compa ny an amount to the tune of Rs.6,54,105/- and such amount was said to have be en utilised in liquidating the loan which the defendant No.1 obtained from th e plaintiff on 24.9.1986 (vide paragraph Nos. 22 and 3 in W/S and affidavit o n deposition respectively) . 29. Defendant No. 1 has further contended that even on dates between 8.6.1 989 and 28.2.1996 , the defendant No.1 paid Rs. 2,87,702/- to the plaintiff Com pany. Such an assertion, on the part of defendant No.1, has legimately raised a question .The question is why the defendant No. 1 continued to make payment to the plaintiff, if he had already liquidated the loan in question as early as on 25.2.1986. The answer is not far to find. 30. On a perusal of evidence on record, particularly Ext.4 ,we have found t hat as on 24.9.86, defendants, defendant No.1 in particular, owed the plaintiff an amount to the tune of Rs. 8,20,591/- which also carries interest at the agreed rate of 24 % per annum beside carrying panel interest on the principal amount in the event of default in making payment of installments. There is ab solutely no evidence on record to show that defendant No.1 paid anything in between 24.9.86 and 25.2.88 towards the satisfaction of aforesaid loan . 31. This emphatically demonstrates that as on 25.2.88, the amount which w as due to the plaintiff from the side of the defendants was much more than w hat defendant No.1 had actually paid to the plaintiff on 25.2.88 . This speaks loud and clear as to why defendant went on paying the plaintiff different amoun ts on different dates inspite of his paying an amount to the tune of Rs 6, 54,10 5/- as early as 25.2.1988. 32. However, in the facts and circumstances of the present case, that was f ound not enough to show that as on 25.2.1988 or for that matter on the date of f iling the suit, defendants did not owe any money to the plaintiff. Rather, all t hose revelations firmly serve to show that defendant No.1 owed a substantial am ount to the plaintiff-- not only on the date of filing of the suit--- but also o n the date when he paid the plaintiff Rs.6,54,105/- . 33. The above conclusion of us however, draws the final seal of approval from admission of defendant which he made in his cross- examination, for, in h is cross- examination, the defendant (D.W.1) is found saying very candidly th at on 30.1.04, he wrote a letter to the plaintiff offering Rs. 4,00,000/- tow ards the full and complete liquidation of the loan which he obtained from the p laintiff. This is one more testimony of defendants owing a good deal of money to the plaintiff at all the relevant time. 34. What, therefore, emerges from our forgoing discussion, and that too with far too clarity, is that as on 31.5.2001, the defendant owed plaintiff a substa ntial amount of money. In the teeth of such disclosures, we have no difficulty i n holding that the finding of the learned trial Court on issue No. 5 that the cl aim of plaintiff for getting a decree for recovery of Rs.11, 19,608/- is found n ot tenable---not being in conformity with the materials on record-is bad in both law and facts and same is, therefore, required to be reversed/set aside. As the findings on all other issues on which the ld. trial Court rendered its decision s are dependent on the outcome of issue No.5, so, in our considered opinion, fin dings on those issues need to be reversed/set aside. 35. Here, we may state that the defendant No. 1 evidently owed the plaintiff a substantial amount of money as on 31.5.2001. Our foregoing discussion makes s uch position more than clear. But then, the evidence, rendered from the side of plaintiff on point of quantum of such dues is found to be quite scanty and insuf ficient. Worst still, the evidence, tendered from the side of defendant is f ound equally inadequate, equally insufficient. Such a state of affairs does not allow the Court come to a definite finding as to the quantum of money which de fendant No.1 actually owed to the plaintiff as on 31.5.2011. 36. In our considered opinion, all those failures and shortcomings make this case a classic example when the Court needs to invoke the powers, conferred on it by Section 311 Cr.P.C in order to ensure that justice is rendered in i ts pure and pristine form without being crippled in any way whatsoever by tech nicalities of law, more so, when matter at stake was public money, meant for up liftment of downtrodden and hapless sections of the societies. 37. However, the learned trial Court failed to invoke the provisions of Sect ion 311 Cr.P.C. to clarify the huge ambiguity which envelopes the dispute bet ween the parties in the suit aforesaid. Such revelations once again require us to entertain a view that decision of the learned trial Court on issue No. 5 or for that matter its decisions on all other issues are all required to be reverse d/set aside. 38. In the face of above revelations, we have found no other way out but to allow the appeal setting aside the judgment and the decree, appealed against. F urther, in the facts and circumtances of the case, we are seized with, which we have discussed in detail here-in-before and in the interest of justice in partic ular, we find it necessary to remand the case to the ld. trial Court so that pa rties to the suit aforesaid get an opportunity to place their grievances before such Court to have same adjudicated properly. 39. Accordingly the suit is remanded to the trial Court with direction that it would allow the parties to the suit aforementioned, a limited opportunity of a dducing additional evidence as indicated herein before and for that purpose, it would fix a date to enable them to file a list of document(s) and witness( es) , if they so desire, however, not on a date later than 15 days from the date of receipt of the case record and thereafter, it would proceed with the case in accordance with law and dispose of the same at the earliest preferably with in four months on the date of receipt of the case record. 40. Parties are directed to appear before the Court on 23.12.2011 without fa il. Parties are left to bear their own cost. 41. A copy of the judgment together with LCR be sent down to the trial court forthwith.