Gauhati High Court
Khagen Ch. Das vs Md. Akhatar Hussain on 21 January, 2015
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM: NAGALAND: MIZORAM &ARUNACHAL PRADESH)
RSA 81 of 2007
Khagen Ch. Das,
Son of late Kamal Baishya,R/o vill-Bakvajhari,
PS-Tihu,Dist-Nalbari,Assam.
....Appellant
-Vs-
Md. Akhtar Hussain, son of late Nalid Ali,
Village-Haripur, PS Nalbari,Dist-Nalbari,Assam.
....Respondent
BEFORE HON'BLE MR. JUSTICE MANOJIT BHUYAN For the Appellant : Mr. D K Sarma,, Advocate Mr.P.S.Lahkar, Advocate.
For the Respondent : Mr. B. Islam,, Advocate,
Mr. A Haque,Advocate
Date of judgment : 21.1.2015.
JUDGMENT & ORDER (CAV)
This Second Appeal was admitted for hearing on 8.8.2007 on the following substantial question of law:
"1) Whether the learned Court below had committed illegality and irregularity in drawing the conclusion that the document in question was executed by the appellants? "
2. The aforesaid substantial question of law so formulated is being tested in the backdrop of the evidence on record and to ascertain whether on the formulated substantial question of law interference of this Court is warranted.
3. The Money Suit No.19/2004 was brought about by Md. Akhtar Hussain, respondent/ plaintiff before the Court of the learned Civil Judge (Sr.Division), Nalbari for recovery of Rs.62,060/- from the appellant /defendant, Sri Khagen Chandra Das. In the said Money Suit the plaintiff had alleged that the defendant had borrowed an amount of Rs.50,000/- from the plaintiff on 12.9.2003 by executing a hand note (Ext.1). On the failure of the defendant to repay the borrowed amount of Rs.50,000/- alongwith interest, as agreed upon @ Rs.12.5% p.a., despite repeated demands and even after service of legal notice, Md. Akhtar Hussain instituted the said Money Suit No. 19/2004. The defendant, Sri Khagen Chandra Das appeared and contested the Suit by filing written statement whereby he denied the claim of the plaintiff stating that he had never borrowed any amount from the plaintiff. However, the defendant admitted to the fact that on 2.2.2005 when he was on his way to the office, the plaintiff stopped him on the National Highway and forcefully took signatures on two pieces of papers on revenue stamp.
4. On the pleadings of the parties, the learned Trial Court had framed 5(five) issues. Issue Nos. 3 and 4 which were taken up for discussion together and deemed relevant for deciding the suit are as follows:-
"3.Whether the defendant availed a loan of Rs.50,000/- from the plaintiff? If so, whether the defendant had executed a hand note on 12.9.03 with the promise to return the loan amount along with interest @12.5% p.a.?
4.Whether the plaintiff is entitled to a decree as prayed for?
5. In support of the Suit, the plaintiff Md. Akhtar Hussain himself examined as PW-1 and one Sri Pradyut Talukdar as PW-2 besides exhibiting three documents i.e. Ext.1 being the hand note, Ext.2 being the legal notice addressed to the defendant and Ext.3 being the reply of the defendant to the legal notice denying the claim of the plaintiff.
6. From the evidence on record it appears that PW-1 stated that the defendant had approached him for a loan of Rs.50,000/- which the plaintiff had paid on 12.9.2003 by executing a hand note on condition that the borrowed amount would be repaid by the defendant as and when demand for payment is made by the plaintiff. Records reveal that in the hand note i.e. Ext.1 the defendant had put his signatures which are marked as Ext.1(1) ,1(2) in presence of a witness, whose signature is marked as Ext.1(3). PW-2 , Sri Pradyut Talkukdar was the said witness who had prepared the contents of the hand note (Ext.1). According to the deposition of PW-2, Sri Pradyut Talkukdar, the defendant had borrowed an amount of Rs.50,000/- from the plaintiff in his presence and the hand note was prepared by him when both the plaintiff and the defendant had approached him for doing the needful. PW-2 also stated that the defendant had put his signature in his presence and the transaction of the money had also taken place in his presence.
7. The defendant Sri Khagen Chandra Das without, however, denying the execution of the hand note (Ext.1) pleaded that the plaintiff had forcefully taken signature on blank pieces of papers and that he never availed any loan from the plaintiff. From records, such denial by the defendant has not been established by adducing evidence. The Trial Court found that the defendant could not place any material to show that he, in fact, had put his signature on blank paper under threat. On consideration of the evidence of the PWs and the documents so exhibited, the learned Trial Court found that the plaintiff had established his case whereas the defendant could not establish his defence by any reliable evidence. The plaintiff's entitlement to a decree for recovery of the amount claimed in the suit was upheld and accordingly both Issue Nos. 3 and 4 were decided in favour of the plaintiff. As a result, vide judgment and decree dated 12.12.2005 the suit was decreed for recovery of Rs.50,000/- with interest thereon at the rate of Rs.6% p.a. w.e.f. the date of filing of the Suit until full and final recovery.
8. Money Appeal No.2//2006 was preferred by the respondent/defendant Sri Khagen Chandra Das before the Court of the learned District Judge, Nalbari, being aggrieved of the judgment and decree dated 12.12.2005 passed by the learned Trial Court, as indicated above. On consideration of the pleadings of the parties, evidence and materials on record, the learned Appellate Court vide judgment and order dated 8.3.2007 affirmed the judgment and decree of the learned Trial Court holding that there was no reason to differ from the view taken by the learned Trial Court which had rightly rejected the version of the defendant and had decided the vital issues rightly in favour of the plaintiff Md. Akhtar Hussain. Accordingly, the appeal was dismissed as being without merit.
9. I have heard Mr. D.K.Sarmah, learned counsel for the appellant as well as Mr. B. Islam, learned counsel for the defendant and also perused the materials on record. Mr. Sarmah reiterates the stand of the respondent/defendant as urged before the Courts below.
10. In the backdrop of the evidence on record and the concurrent findings of facts of the learned Courts below, no perversity can be attributed to the findings of facts recorded by the First Appellate Court and/or the Trial Court. It is an admitted position that the appellant/defendant without denying the execution of the hand note had failed to establish his denial of availing loan by adducing evidence and/or by placing any materials on record. Further, the appellant/defendant has also not been able to establish before this Court that there has been any substantial error or defect in the procedure resulting in error in decision by the learned Courts below, warranting interference by this Court. The substantial question of law so formulated requiring an answer by this Court is apparently a question of fact which had been decided by the Courts below in favour of the respondent/plaintiff. The existence of a substantial question of law, which is sine qua non for exercise of jurisdiction under Section 100 CPC, is wholly absent in the instant appeal.
11. As a result, the appeal being without any merit and not disclosing any substantial question of law warranting interference by this Court, is hereby dismissed, however, without any costs.