Allahabad High Court
Anil Kumar Sharma vs Sanjay Jain @ Sanjay Kumar Jain on 10 December, 2020
Equivalent citations: AIRONLINE 2020 ALL 2442
Author: Rohit Ranjan Agarwal
Bench: Rohit Ranjan Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 10.11.2020 Delivered on 10.12.2020 Court No. - 10 Case :- SECOND APPEAL No. - 439 of 2019 Appellant :- Anil Kumar Sharma Respondent :- Sanjay Jain @ Sanjay Kumar Jain Counsel for Appellant :- Kshitij Shailendra Counsel for Respondent :- Pankaj Agarwal Hon'ble Rohit Ranjan Agarwal,J.
1. This is plaintiff's second appeal against judgment and decree dated 11.01.2019 passed and drawn by VII Additional District Judge, Aligarh in Civil Appeal No. 47 of 2016, arising out of judgment dated 30.03.2016 passed by Additional Civil Judge (Senior Division)/ Additional Chief Judicial Magistrate, Court no. 2, Aligarh in Original Suit No. 1381 of 2011.
2. The appeal was admitted on 30.03.2019 on the following questions of law:-
"(i) Whether in view of Section 56 of the Evidence Act, 1872, the judgment and order dated 30.9.2013 passed by this Hon'ble Court Civil Revision Defective No. 21/2012 and Civil Revision No. 128/2012 regarding nature of document 13-Ka-1 dated 25.5.2009 being "an acknowledgement", whether the lower appellate court was at all justified in dislodging the plaintiff's claim by holding that there was no evidence to establish his case?
(ii) Whether the cryptic observation made by lower appellate court in a single line that the execution of document 13-Ka-1 was a result of pressure, is not perverse in view of voluminous evidence on record in the form of statements of PW-1, PW-2, PW-3 and DW-1, DW-2?
(iii) Whether the cryptic judgment of lower appellate court which does not at all deal with the case of the parties and does not reverse any finding recorded by the Trial Court, is not hit by Section 107 (2) read with Order 41 Rule 33 CPC?"
3. Plaintiff-appellant filed Original Suit No. 1381 of 2011 for recovery of money for sum of Rs.12 lacs along with 8% interest from 25.05.2009 till the date of actual payment. In the plaint, it was alleged that plaintiff and defendant were having family terms, and as the defendant was in financial crisis, plaintiff on different dates lended money, out of which 2 lac was refunded on different dates, however, remaining Rs.12 lacs was not paid despite repeated requests.
4. In para 3 of the plaint, it has been specifically alleged that the plaintiff made a complaint before S.P. City, Aligarh, on which both defendant and appellant were called by concerned officer and in his presence, defendant had accepted the amount and a written note was executed by him on 25.05.2009 wherein, it was stated that within 15 days, defendant will pay Rs.1 lac and balance amount will be paid within a year. The witness to the said document were two advocates namely, Arun Kumar Gautam and Vinod Kumar Gautam, who were present and had signed the document. Despite execution of the document, defendant did not pay amount, hence, suit for recovery was filed.
5. Defendant-respondent contested the suit and filed his written statement wherein it was specifically denied that he never took any amount of Rs.14 lacs from plaintiff, nor paid back Rs.2 lacs. Further, plaintiff was required to prove, on which dates he had given the money to defendant. It was also contended that he does not have any business relation with plaintiff nor he is his old family friend. Further, it was also averred that plaintiff has not filed any basis of the suit to prove the advance of payment of Rs.14 lacs. It was also stated in the additional pleas that the document dated 25.05.2009 is forged and fabricated and there are over-writings at certain places, and further, it was never written by defendant under free will and the plaintiff had got it executed forcibly.
6. The trial court framed following issues:-
"1- क्या वादी 12,00,000/- रुपये मय व्याज प्रतिवादी से पाने का अधिकारी है ?
2- क्या वादपत्र आदेश-7 नियम-14 सी. पी. सी. निरस्त किये जाने योग्य है?
3- क्या दावा वादी आदेश-7 नियम-14 सी. पी. सी. के प्राविधानों के अंतर्गत निरस्त किये जाने योग्य है?
4- क्या वादी का वाद उ0 प्र0 साहूकारी अधिनियम से बाधित है?
5- क्या प्रतिवादी विशेष हर्जा वादी से पाने का अधिकारी है?
6- क्या कोई लेनदेन धारा एस. एस. और 269टी आयकर अधिनियम 1961 से बाधित है?
7- क्या कथित कागज दिनांकित- 25.5.2009 साक्ष्य में ग्राहय है और स्टाम्प रहित है? यदि हाँ तो प्रभाव 8- अनुतोष ?
9- क्या वाद धारा-14 व यू0 पी0 रेगुलेशन ऑफ मनीलैंडिंग एक्ट 1976 से बाधित है?
10- क्या वाद का मूल्यांकन कम किया गया है और अदा किया गया न्यायशुल्क अपर्याप्त है?
11- क्या वाद आदेश-6 नियम 2(3) व नियम-4 सी. पी. सी. से बाधित है?
12- क्या दावा वादी काल बाधित है?"
7. The trial court while deciding issue nos. 1, 6 and 7, which were interrelated, relied upon the document dated 25.05.2009, and decreed the suit of plaintiff against defendant for Rs.12 lacs along with interest of 4% per annum.
8. Aggrieved by the said order, defendant-respondent filed Civil Appeal No. 47 of 2016, and the lower appellate court framed the point of determination under Order 41, Rule 31 C.P.C., which is as under:-
"1- क्या अपीलार्थी/ प्रतिवादी द्वारा वादी / प्रत्यर्थी से चौदह लाख रुपया ऋण लिया गया जिसको अदा करने का दायित्व अपीलार्थी/ प्रत्यर्थी का है?"
9. The lower appellate court while disbelieving the document executed before the police, reversed the decree of the trial court vide judgment dated 11.01.2019, hence this appeal.
10. Sri Kshitij Shailendra, learned counsel appearing for the plaintiff-appellant submitted that judgment passed by lower appellate court is no judgment in eye of law as it runs in 11 pages, and first 7 pages contain reference of case of parties and pages 8, 9 and 10 contain reference of various decisions of High Courts and finding is confined at page 11 of the judgment wherein, it has been held that plaintiff has failed to prove his case as to the dates on which amount was paid to defendant, as no documentary evidence was produced. So far as, Paper No. 13 Ka is concerned, lower appellate court had wrongly observed that it was got executed under pressure.
11. He submitted that court below failed to appreciate that document, Paper No. 13 Ka which was held to be an acknowledgment under the order dated 30.09.2013 passed in Civil Revision (Defective) No. 21 of 2012 and Civil Revision No. 128 of 2012, thus, there was no scope for the court below to enter into any other question and should not have decreed the suit against plaintiff. Document Paper No. 13 Ka was duly proved by plaintiff by producing PW-1, PW-2 and PW-3, who all were signatories to the document, and once it was proved, no occasion arose for disbelieving the same. It was further impressed upon that DW-1, not only in his written statement but also in his oral testimony had stated that he had written Paper No. 13 Ka-1 in his own handwriting and the finding recorded that it was executed under pressure is wholly perverse and based upon ignorance and misreading of oral testimony of PWs and DWs, especially their cross-examination.
12. Further, defendant failed to produce any witness of police authority or any other person to establish laying/ exercise of pressure, hence, there was nothing on record to draw such an inference against plaintiff-appellant. It was next contended that there was no requirement for the plaintiff to establish giving of Rs.14 lacs to defendant, once document Paper No. 13 Ka was there and admitted to both the parties, thus, fact which is admitted to parties is not required to be proved under Section 58 of the Evidence Act. Finding recorded by court below as to non-mentioning of dates of advancing money was wholly irrelevant as document Paper No. 13 Ka clearly proves the same.
13. Reliance has been placed upon various decisions, wherein it has been held that the first appellate court could not dismiss appeals cursorily and without undertaking and appreciation of evidence, dealing with various issues arising in a case and discussing arguments raised by parties in support of the case. C. Venkata Swamy vs. H.N. Shivanna (Dead) by Legal Representatives and another, (2018) 1 SCC 604, Vinod Kumar vs. Gangadhar, (2015) 1 SCC 391, Bhagirathi vs. Ram Chandra and others, 2019 (5) AWC 4492, Rishikesh vs. Harikesh and others, 2019 (1) ADJ 678.
14. As far as acknowledgment of document dated 25.05.2009 is concerned, reliance has been placed upon decision in case of Jyotsna K. Valiya vs. T.S. Parekh and Co. 2007 (3) Bombay CR 772. Further, appellant has relied upon the decisions in case of K. Muneyya and Co. represented by the Partner A.R. Subramanyam Iyyar vs K. Varadarajulu, AIR 1964 Andhra Pradesh 17 and Union of India vs. Mokesh Builders and Financier Limited, AIR 1977 SC 409.
15. On the question of recitals contained in document, it will bind the defendant and will be treated as true, and onus lies on the defendant to show that document would not bind him.
16. Sri Pankaj Agarwal, learned counsel appearing for the defendant-respondent submitted that sole basis of seeking decree for recovery of money is Paper No. 13 Ka-1, which cannot be said to be an admission on part of defendant, though, admitted the execution, but he categorically and in unequivocal terms stated that the said document was got executed under duress and he never admitted his liability to pay plaintiff. Further, defendant had made complaint before S.S.P. and D.M., Aligarh and also filed complaint under Section 156(3) Cr.P.C. and in absence of any other cogent evidence regarding details of payment made to defendant on different dates, suit is bound to be dismissed.
17. He next contended that reference to the judgment passed by this Court in interlocutory proceedings was wrongly placed as at no point of time, this Court ever held Paper No. 13 Ka to be an acknowledgment/ admission on part of defendant. Rather, the Court while dismissing the revision preferred by defendant, left it open for trial court to adjudicate the validity and sanctity of Paper No. 13 Ka-1.
18. He further contended that plaintiff has failed to prove his case as the averment made was not supported by documentary evidence as to the manner in which payment was made by plaintiff at any given point of time. As far as, decision of lower appellate court is concerned, he contended that that is a well settled judgment and court below had in depth decided the issue after framing point of determination.
19. Reliance has been placed upon decision in case of Dalla vs. Nanhu, 2019 (1) ADJ 246 (LB), Shri Krishan vs. The Kurushetra University, Kurukshetra, AIR 1976 (SC) 376 and Tatipamula Naga Raju vs. Pattem Padmavathi, 2011 (4) SCC 726.
20. I have heard learned counsel for the parties and perused the material on record.
21. All the three substantial questions of law as framed on 30.09.2019 are interlinked and basically attack the finding of the lower appellate court as to disbelieving the document 13 Ka-1, as such, they are being decided collectively.
22. The sole basis for the claim of the plaintiff for recovery of money alleged to be advanced by him to defendant is Paper No. 13 Ka-1, which is said to have been executed, as per the plaint version, before S.P. City, Aligarh on 25.05.2009. Execution of this document though admitted to defendant, but had denied its execution on his own free will and claimed to have been executed under pressure and duress.
23. Apart from Paper No. 13 Ka-1, plaint lacks pleading as to the dates on which the alleged advance of money was made by plaintiff to defendant, and also the dates when Rs. 2 lacs is said to have been returned. Further, no documentary evidence was filed to support the plaint case except the document alleged to have been executed before police authorities.
24. It has been vehemently contended by learned counsel for the appellant that judgment of lower appellate court has run into 11 pages only, of which 7 pages contain recital of pleadings of both the parties while next 3 pages contain the various decisions of this Court and Apex Court and finding has been recorded only in the last page, thus, justice has not been done with the case as it was the first appellate court and there was no justification to throw overboard finding recorded by trial court and the appeal should not have been decided cursorily without appreciating the evidence dealing with various issues.
25. From the perusal of the judgment of court below, the Court has framed point of determination as mandated under Order 41, Rule 31 C.P.C., as the sole issue was as to whether the defendant-respondent was liable to repay the amount alleged to have been taken by him from plaintiff-appellant.
26. Lower appellate court after discussing the case found that entire case of plaintiff hinges around Paper No. 13 Ka-1, which was said to have been executed before police authorities and plaintiff having failed to prove the execution of the document, the case of the plaintiff falls flat.
27. As it is undisputed fact that entire case of the plaintiff for advancing money to defendant was based upon Paper No. 13 Ka-1 executed before S.P. City, Aligarh, no other document was filed, nor the case was proved through oral testimony in regard to advancing of money to defendant. The oral testimony of PW-2 and PW-3 only prove the execution of Paper No. 13 Ka-1 before police authorities, apart from that plaintiff failed to disclose in his plaint the dates on which advance to the tune of Rs.14 lacs was made by him and also as to when Rs.2 lacs was returned by defendant. Plaintiff also did not bring on record his income tax return for the relevant years to prove whether he had disclosed the amount in his return.
28. Argument of learned counsel for the appellant cannot be accepted to the extent that Paper No. 13 Ka was proved by oral testimony of PWs and DWs and lower appellate court could not have decreed the suit against plaintiff on the ground that it was got executed under pressure.
29. It is plaintiff's specific case that Paper No. 13 Ka-1 was got executed before S.P. City, Aligarh on 25.05.2009. Plaintiff himself is a practicing lawyer at Aligarh and the two witnesses, Vinod Kumar Gautam (P.W.-2) and Arun Kumar Gautam (P.W.-3) are also practicing advocates in civil court in Aligarh, thus, it is an admitted case that document was executed before the police authorities, and neither of the police officers were examined as plaintiff witnesses to prove the execution of the said document. Burden of proving the document having been executed in the office of S.P. City, Aligarh was upon the plaintiff, as the defendant had categorically stated in his written statement as well as in cross-examination that the said document was got executed under duress and pressure.
30. It is strange to note that police station and office of district police officials are becoming center for mediation/ settlement of civil and commercial disputes. It is not the job of the police authorities to get the matter settled in their offices rather, making genuine efforts to curb and control crime in the district.
31. Once the plaintiff had relied upon the document to have been executed before police authorities, onus was upon him to prove that it was executed under free will, and the officer before whom the same was executed should have been produced as one of the witnesses.
32. Finding recorded by lower appellate court as to Paper No. 13 Ka-1, said to have been executed under pressure does not need any interference as the document relied upon by plaintiff cannot be admitted as proof as it is not beyond doubt and suspicion.
33. Argument as to Section 58 of Evidence Act is concerned, it is not applicable in the present case as defendant himself had stated that document was got executed under duress and pressure.
34. Further, it is the specific case of the plaintiff himself that Paper No. 13 Ka-1 was got executed on 25.05.2009 in the office of Superintendent of Police, Aligarh, whose credibility itself is under doubt and the entire onus lies upon the plaintiff for proving the same.
35. Moreover, there is no independent witness to Paper No. 13 Ka-1 as two advocates, Vinod Kumar Gautam and Arun Kumar Gautam have signed on behalf of plaintiff and Mayank Jain on behalf of defendant.
36. Apart from issue discussed by lower appellate court, there was no issue to be considered, and once it was found that Paper No. 13 Ka-1 was executed under pressure, appeal of the defendant was allowed, as sole basis of decreeing the suit of the plaintiff was Paper No. 13 Ka-1.
37. Reliance placed upon decision in the case of C. Venkata Swamy (supra), Vinod Kumar (supra), Bhagirathi (supra) and Rishikesh (supra) by appellant does not find any support as facts of present case are distinguishable from the same, as the sole case of plaintiff was that defendant refused to return money and on the basis of the document executed before the police authorities, he was bound to return the same. The lower appellate court after framing point of determination and discussing the case had allowed the appeal of defendant.
38. As far as reliance upon decision in case of Jyotsna K. Valiya (supra), K. Muneyya and Co. (supra) and Mokesh Builders and Financier Limited (supra), the same are not applicable in the present case, as the document claimed by plaintiff to have been executed on 25.05.2009 was before police authorities and had been claimed by defendant to have been got executed under duress.
39. Apart from this, learned counsel for the appellant has tried to impress upon the fact that this Court in Civil Revision No. 478 of 2012, decided on 30.09.2013 and Civil Revision (Defective) No. 21 of 2012, decided on 30.09.2013 had acknowledged the document dated 25.05.2009 as an acknowledgment of money, thus, lower appellate court could not have disbelieved the said document and should have decreed the suit of the plaintiff.
40. The operative portion of the said orders are extracted hereasunder:-
"Under such circumstances the cause of action for a money decree brought by the plaintiff respondent is of 25.05.2009 which according to the plaint allegation is an acknowledgment of the past monies taken by the defendant revisionist. Whether it has been taken or not is not a subject matter of this revision. The plaint discloses a cause of action and therefore no interference is required in the impugned order. While passing the impugned order the court below has observed as under:-
"oknh us gLrxr okn ckjg yk[k :i;s dh वसूली हेतुq ;ksftr fd;k gS rFkk bl lEcU/k eas tks izys[k nkf[ky fd;k gS, ml ij Lo;a ,oa HkkbZ dk लेखन होना izfroknh us izfrokn i= ds पैरा 13 esa Lohdkj Hkh fd;k gS लेख कैसे fy[kk x;k] ;g Hkh lk{; dk fo"k; gS vkjS वैसे Hkh fof/k dk ;g lqLFkkfir fl)kUr gS fd oknh dks vius vfHkcpuksa dks Lo;a lkfcr djuk gS] og izfroknh dh dfe;ksa dk Qk;nk ugha mBk ldrkA mijkDsr fof/k O;oLFkk ds vuqlkj ,oa bu leLr rF;ksa dks ns[krs gq;s izkFkZuk i= 131x }kjk izfroknh Lohdkj fd;s tkus ;ksX; ugha ik;k tkrkA"
In view of the aforesaid circumstances there is no merit in this revision. It is accordingly dismissed.
No order is passed as to costs."
"Clearly the issue no. 4 involves adjudication whether any cause of action had arisen to the plaintiff to bring the suit. The plaintiff has to plead a cause of action in the plaint. Whether such cause of action is barred by limitation or it is a cause of action to bring the money suit on the basis of the alleged acknowledgement dated 25.05.2009 pleaded in the plaint is a question that requires evidence of the parties on the acknowledgement dated 25.05.2009 itself. Therefore when the court below has ordered that the issue no. 4 will be decided after evidence has been lead by the parties it does not suffer from any error. No interference is required in the impugned order dated 05.01.2012.
Both the revisions are devoid of merit however are disposed of with liberty to the parties to lead their evidence.
No order is passed as to costs."
41. Thus, from the reading of order dated 30.09.2013, it is clear that the Court had not acknowledged the document dated 25.05.2009 and it was left to be decided after recording evidence by parties. The argument raised by learned counsel for the appellant is fallacy. Thus the substantial question of law as framed does not stand the test and, thus are being decided against the plaintiff appellant.
42. Thus, considering the facts and circumstances of the case, I find that the lower appellate court after formulating the point of determination recorded a categorical finding that Paper No. 13 Ka-1 was executed under pressure and same was disbelieved. As the entire case of the plaintiff was on the basis of Paper No. 13 Ka-1 and apart from it plaintiff had not filed any document or oral evidence was led to substantiate and prove his case, thus, the appeal of the defendant was allowed and suit was decreed against plaintiff.
43. In the result, the appeal fails and is dismissed.
44. Parties to bear their own costs.
Order Date :- 10.12.2020 V.S.Singh