1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A. No. 14 of 2002. Date of decision: 09.12.2011. Sh. Hari Ram, S/o Sh.Dhani Ram, R/o Village Phawan, P.O.Shalaghat, Tehsil Arki, Distt. Solan (H.P.) …Appellant/Plaintiff. Versus Sh. Narpat Ram, S/o Sh. Jadu, R/o Village Shamloti, P.O.Arki, Distt. Solan (H.P.) AT PRESENT Running a Dhaba at Bus Stand, Arki, Tehsil Arki, Distt. Solan (H.P.) ...Respondent/Defendant. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 No For the Appellant/ : Mr. G.D.Verma, Senior Advocate Plaintiff. with Mr. B.C.Verma, Advocate. For the Respondent/ : Ms. Devyani Sharma, Advocate. Defendant. Kuldip Singh , Judge ( Oral). The plaintiff having lost in both the Courts has filed second appeal against the judgment, decree dated 07.09.2001 passed by learned Additional District Judge, Solan, in Civil Appeal No. 46-S/ 13 of 1999, affirming judgment, decree dated 29.09.1999 passed by learned Sub Judge Ist Class, Arki, in Civil Suit No. 183/1 of 1994. 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes 2 2. The facts , in brief, are that Smt. Janki had borrowed a sum of `10,000/- from the appellant and she allegedly executed a promissory note on 09.01.1989. Smt. Janki did not pay the aforesaid amount. She only paid `3,575/- interest for 33 months from January, 1989, to September, 1991 through his General Power of Attorney Jagdish Chand, who made necessary endorsement on the reverse of the promissory note. 3. Smt. Janki died and her entire estate has been inherited by respondent on the basis of Will. It has been alleged that in these circumstances the respondent is liable to pay the amount of `10,000/- along with interest borrowed by Smt. Janki. The suit has been filed for recovery of `13,900/- with future interest at the rate of 13% per annum. 4. The suit has been contested by respondent by taking preliminary objections such as limitation, cause of action, maintainability. On merits, it has been alleged that Smt. Janki had executed a Will in favour of respondent. It has been alleged that appellant is practicing as an Advocate at Arki and he always appeared against Smt. Janki in at least three cases. It could not be imagined that an Advocate appearing against rival party would give money on loan to said person. Smt. Janki had no relations with appellant. It has been denied that Smt. Janki borrowed any amount from appellant or she executed any pronote. Jagdish Chand, who allegedly made an endorsement on the promissory note is brother-in-law of appellant. The Power of Attorney executed by Smt. Janki in favour of Jagdish Chand was revoked on 05.10.1991. Jagdish Chand even after the revocation of 3 the General Power of Attorney obtained a loan for Smt. Janki on 08.10.1991 and now is facing criminal case under Section 420 IPC in the Court of Sub Divisional Judicial Magistrate, Arki. The appellant kept mum from 09.01.1989 till 19.09.1994 and it is only after the death of Smt. Janki that he issued notice upon respondent and thereafter filed a suit on 29.09.1994. It has been alleged that pronote is not genuine and appellant is not entitled to recover any amount from the respondent. 5. On the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiff is entitled to recover `13900/- on the basis of the promissory note as claimed for? OPP. 2. Whether the defendant is successor-in-interest of late Janki widow of late Galla who succeeded the deceased in her landed and other property by way of Will as alleged? OPP. 3. Whether the suit is barred by time? OPD. 4. Whether the plaintiff has got no cause of action to file the suit? OPD. 5. Whether the plaintiff has no locus-standi to file the suit? OPD. 6. Whether the suit is not maintainable in view of appeal pending before Ld. Appellate Court ? OPD. 7. Whether there was no occasion to give loan by the plaintiff to Janki Devi against whom he fought three cases as alleged ? OPD. 8. Relief. The issues No.1, 4,5, 6 and 7 were answered in negative and issues No. 2 and 3 in affirmative and the suit was dismissed on 29.09.1999. In appeal, learned Additional District Judge, on 07.09.2001 affirmed the 4 judgment, decree dated 29.09.1999, hence second appeal which has been admitted on following substantial questions of law:- 1. Whether there are material admissions on the part of the respondent and his predecessor about the claim of appellant and such admissions have wrongly been ignored? 2. That the Provisions of H.P. Registration of Money Lenders Act 1976 having neither been pleaded nor proved therefore the findings as recorded by the Lower Appellate Court are vitiated? 6. I have heard learned counsel for the parties and have also gone through the record. It has been submitted on behalf of the appellant that the two Courts below have not taken into consideration the material admissions on the part of the respondent and his predecessor about the claim of the appellant and such admissions have been ignored. The evidence has been misconstrued and misinterpreted in dismissing the claim of the appellant. It has been submitted that there are no pleadings in defence so as to bring the case within the ambit of Himachal Pradesh Registration of Money Lenders Act, 1976 ( for short 'Act'). The learned Additional District Judge has erred in rejecting the claim of the appellant on the ground that appellant is not entitled to the suit amount in view of Section-3 of the Act. The submission has been made for acceptance of appeal and setting aside impugned judgment, decree. 7. The learned counsel for the respondent has submitted that two Courts below have rightly appreciated the material on record. The 5 findings returned by two Courts below are based upon appreciation of evidence and in second appeal evidence cannot be reappreciated. The findings of learned Additional District Judge regarding the applicability of the Act is based upon legal question and, therefore, no fault can be found with the impugned judgment and decree. It has been submitted that appellant has no case on merits. 8. The substantial question of law No. 2 is taken first for determination. The Section-3 of the Act bars the filing of the suit by money lenders, unless money lender is registered and licensed. Section-2(9) of the Act defines 'money-lender' as follows: “Money lender means a person, or a firm, carrying on the business of advancing loans and includes the legal representatives and the successor-in-interest whether by inheritance, assignment or otherwise, of such person or firm, provided that nothing in this definition shall apply to - (a) a person who is the legal representative or is by inheritance the successor-in-interest of the estate of a deceased money lender together with all his rights and liabilities if such person- (i) winds up the estate of such money-lender; (ii)realises outstanding loans; (iii)does not renew any existing loan, or advance any fresh loan; (b) a bonafide assignment by a money-lender of a single loan to any one other than the wife or husband of such assignor, as the case may be, or any person, who is descended from a common grandfather of the assignor;” There is no averment in the plaint that the appellant had been carrying 6 the business of advancing loan. Once the question has not been raised by the respondent in the written statement that the appellant is a money- lender under the Act and the parties were not put to issue on the point and were not given an opportunity to prosecute and defend the suit on the question, then there is no question that appellant is a money-lender under the Act. The learned Additional District Judge has erred in returning the findings that suit is barred under Section 3 of the Act. The substantial question of law No.2 is decided in favour of appellant. 9. The substantial question of law No. 1 is primarily regarding the execution of the promissory note Ex. PW1/C. The question still remains whether Smt. Janki had executed promissory note Ex. PW1/C for consideration and whether an amount of ` 3,575/- was paid by or on her behalf by Jagdish Chand so as to extend limitation for filing the suit. PW-1 H.R.Verma has supported his case and has stated that he paid `10,000/- to Smt. Janki on 09.01.1989 and thereafter Smt. Janki executed promissory note on 09.01.1989. He has stated that on 29.09.1991 Smt. Janki had paid him interest amounting to ` 3,575/- at the rate of 13% per annum. He has stated that Jagdish had signed receipt as witness. 10. PW-2 Narpat has stated that appellant had asked him to scribe pronote of `10,000/-. The appellant paid the amount to Smt. Janki. The receipt is Ex. PW1/B and promissory note Ex. PW1/C. He has stated that he and Jagdish also signed Ex. PW1/B. He identified his signatures at point X-1 and signatures of Jagdish at point X-2. PW-3 Jagdish has stated that he was G.P.A. of Janki. On 29.09.1991 7 Smt. Janki gave him ` 3,575/- interest of loan for making payment to appellant,which he paid to appellant on 29.09.1991 and put endorsement Ex. PW1/D which bears his signatures at point X-3. 11. DW-1 Narpat Ram has stated that Jagdish Chand and appellant are closely related to each other. The appellant had filed similar type of case against Kamla and in that case also Jagdish was witness of promissory note. Smt. Janki died on 30th November, 1993. Appellant appeared in two cases against Janki. The appellant had not given any notice to Smt. Janki. The appellant represented Narpat Ram as an Advocate. He has denied that Janki had borrowed money from appellant on the basis of promissory note Ex. PW1/C 12. PW-1 H.R.Verma has not stated that the receipt Ex. PW1/B is signed by PW-2 Narpat as witness. PW-3 Jagdish has not stated that he signed receipt Ex. PW1/B. PW-2 Narpat has stated that appellant had asked him to write promissory note of `10,000/-. He has stated that money was given to Smt. Janki by appellant, but he has not stated how much amount was given by appellant to Smt. Janki. PW-2 has stated that he put his signatures at point X-1 on Ex. PW1/B and Jagdish at point X-2. It has come on record that signatures X-1 and X-2 were sent to the handwriting expert at the instance of appellant and the handwriting expert gave his opinion Mark-B dated 1st May, 1997. According to the expert opinion mark X-1 and X-2 have been written by one and the same person. The handwriting expert has not been examined by the appellant. But, still since the opinion of handwriting expert was sought at the instance of appellant and handwriting expert 8 has given his opinion Mark-B, therefore, this opinion can be considered for limited purpose to test the veracity of PW-2 Narpat Ram, who has stated that Ex. PW1/B at point X-1 bears his signatures and at point X-2 it bears signatures of Jagdish. In view of opinion Mark-B, a doubt has been created regarding the veracity of the statement of PW-2 that signatures on Ex. PW1/B at point X-1 and point X-2 are of Narpat and Jagdish respectively. This is more relevant when PW-3 Jagdish has not stated that Ex. PW1/B has been signed by him. This creates suspicion regarding the story and execution of pronote Ex. PW1/C by Smt. Janki in favour of appellant. 13. It has been argued on behalf of the appellant that Jagdish as G.P.A.of Smt. Janki had paid ` 3,575/- on 29.09.1991 to the appellant. The respondent has denied this stand of the appellant in notice Ex. PW1/A dated 19.09.1994. There is no indication that during the life time of Smt. Janki, appellant had ever disclosed her that Jagdish had paid any amount to appellant on 29.09.1991. The alleged payment made by Jagdish on 29.09.1991 is also not free from suspicion in view of stand of the respondent that Jagdish is closely related to the appellant. It has come in the statement of respondent that Smt. Janki had died on 30.11.1993. It is surprising that during the life time of Smt. Janki, appellant neither issued notice to her for payment of amount nor informed her that any amount has been paid by Jagdish to the appellant. It has also come on record that appellant had filed earlier a suit against one Kamla on the basis of promissory note and in that case also Jagdish was his witness. It appears Jagdish is a stock witness of 9 the appellant. The two Courts below have rightly appreciated the material on record. No specific admission of the respondent has been pointed out which goes to the root of the case and supports the claim of the appellant. There is no mis-construction and misreading of the evidence. The substantial question of law No.1 is decided against the appellant. There is no merit in the appeal. 14. In view of above, the appeal is dismissed even though the substantial question of law No.2 is decided in favour of appellant. No costs. ( Kuldip Singh ), December 9, 2011. Judge. (krt)