9911796707
TMI Blog2020 (9) TMI 638X X X X Extracts X X X X X X X X Extracts X X X X ..... d upon correct interpretation of law and facts. Plaintiff has not been able to prove that he had loaned ₹ 3,00,000/- to the defendant or that towards satisfaction of this loan amount, the defendant had handed him the cheque in question. The defendant has explained the circumstances under which the blank cheque in question signed by him was handed over by his father to the plaintiff. Defendant has also highlighted various suspicious aspects regarding manipulations in the cheque including filling of the amount, account number, name and signature in different ink on the cheque besides apparent addition of zero in the amount mentioned therein. Defendant has successfully rebutted the presumption attached to the cheque under Sections 118 and 139 of the Negotiable Instruments Act. There is no perversity or illegality in the concurrent judgments and decrees passed by learned Courts below in dismissing the suit of the appellant on merits. Appeal disposed off. - RSA No. 121 of 2020 - - - Dated:- 16-9-2020 - The Hon ble Ms. Justice Jyotsna Rewal Dua For the Plaintiff : Mr. V. S. Chauhan , Senior Advocate with Mr. Vikas Shyam , Advocate For the Respondent : Mr. Anil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e plaintiff for meeting out his marriage expenses in the year 2006 as his marriage was solemnized in simple manner in the year 2003. It was also stated therein that in 2004 Shri Daulat Ram, father of the defendant had borrowed a sum of ₹ 30,000/- from the plaintiff. Against this loan, a blank cheque signed by the defendant, which was lying in the house, was handed over by the defendant s father to the plaintiff as security. Entire borrowed amount was repaid by the father of the defendant to the plaintiff within a period of three months from the date of borrowing. Despite repeated demands, plaintiff did not return the blank cheque feigning excuse that the same was lost. However, with intention to illegally grab money from the defendant, the above mentioned cheque was mis-used by the plaintiff for instituting the civil suit. It was also submitted in the written statement that the plaintiff was a habitual litigant engaged in 42 civil and criminal proceedings against various persons for extorting money from them as his profession. A preliminary objection was also taken that plaintiff was not entitled to file the suit in view of provisions of The Himachal Pradesh Registration of M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an amount had been repaid by him in entirety to the plaintiff. However, despite repeated demand, the plaintiff did not return the cheque in question. 4. Both the learned Courts below held the suit as not maintainable for want of registration of plaintiff as a money lender and for his failure to produce license under the H.P. Registration of Money Lenders Act, 1976. However, merits of plaintiff s claim was independently throughly examined by the learned Courts below. After analysing the pleadings and the evidence led by the parties, the suit was dismissed by learned trial Court vide judgment and decree dated 29.5.2012. This judgment and decree has been affirmed in appeal by learned Appellate Court on 12.9.2019. Feeling aggrieved, the plaintiff is in second appeal. 5. First point : Presumption available to the cheque admittedly signed by the defendant. 5(i) Learned Senior Counsel for the appellant urged that learned Courts below did not appreciate the legal presumption in respect to the execution of cheque in question available under Sections 118 and 139 of the Negotiable Instruments Act. Therefore, the findings of learned Courts below that the plaintiff failed to prove h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in this backdrop that the Hon ble Apex Court while deciding a proceeding initiated under Section 138 of the Negotiable Instruments Act held that in such a case, burden could not be placed on the complainant to prove that he had advanced the loan and blank signed cheque was given to him towards repayment of the same. The factual position in the instant case is entirely different. Learned trial Court had the advantage of looking into the original cheque (Ext.PW2/A), which was brought alongwith the file of complaint instituted under Section 138 of The Negotiable Instruments Act by the Ahlmed as PW2. After perusing the original cheque, learned trial Court observed in the judgment that three different types of ink were used for signature, filling in account number, name, amount and date. It was also noticed that a zero after the amount of ₹ 30,000/- appeared to have been added on the cheque with different ink. The observation of the learned trial Court in that regard being relevant are re-produced hereinafter: .During the course of trial Ld. Counsel for the defendant has also moved an application under Section 151 CPC on 02.11.2011, for calling of the records of the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manipulations on the cheque then due execution of a cheque would not only require proof of handing over of a blank signed cheque but the fact that the cheque was handed towards a legally enforceable liability also has to be proved. Plaintiff has failed to prove any legally enforceable liability of defendant towards him. The complaint instituted by him against the defendant under Section 138 of the Negotiable Instruments Act regarding the same cheque was dismissed by learned Judicial Magistrate Ist Class, Court No. 1, Rohru, District Shimla vide judgment dated 23.8.2011. There is no averment in the appeal about any challenge to the judgment dated 23.8.2011. On the basis of same cheque, present civil suit for recovery of amount has been instituted. There is difference in civil and criminal proceedings based on a cheque. In civil Court, plaintiff is required to prove his claim on the basis of evidence to be adduced in support of his claim for recovery of the amount due. In this regard, it will be apposite to refer following para of (2019) 10 SCC 287, titled Uttam Ram versus Devinder Singh Hudan and another : 20. The Trial Court and the High Court proceeded as if, the appellant i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... loan amount. Learned first Appellate Court also noticed the submission made on behalf of the defendant that even on the day of hearing of appeal, plaintiff's 6 cases of similar nature were listed for hearing before that Court. More than 15 recovery cases of plaintiff were stated to be pending before the Ist Appellate Court. Additionally, 50-60 cases were statedly pending adjudication before different Courts in District Shimla. It was observed that plaintiff had not led any evidence to rebut the objection taken in the written statement about non-maintainability of recovery suit in view of provisions of H.P. Registration of Money Lenders Act. It was held by the learned Courts below that this proved the plaintiff to be a moneylender . Being a moneylender , plaintiff could not have instituted the instant suit for recovery of loan amount without satisfying the conditions of Section 3 of the Act. In terms of Section 3, plaintiff as a moneylender was required to possess his registration and license as a money lender under the Act. On failure of plaintiff to produce these certificates, it was concluded by the learned Courts below that suit for recovery was not maintainable. 6(iii ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sors-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; The money lender advances loans. Section 2(8) defines loan in following manner:- (8) loan means an advance whether secured or unsecured of money or in kind at interest and shall include any transaction which the court finds to be in substance a loan, but shall not include - (a) an advance in kind made by a landlord to his tenant for the purposes of husbandry: Provided that the market value of the return does not exceed the market val ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who has advanced loans, which are covered within the exceptions of Section 2(8) of the Act is not required to be registered or licensed under the Act as a money-lender. Suit for recovery of loan amount, falling in the exceptions (a) to (g) of Section 2(8) of the Act, therefore, cannot be held as not maintainable for want of registration and license as moneylender under the Act. In the facts of the case, the concurrent factual findings of both the learned Courts below are that various recovery suits had been instituted by the plaintiff in different Courts. This fact had even been acknowledged by the plaintiff in his statement. However, there was no evidence either led by the defendant in support of issue No. 6 or available in any other form before the learned Courts below to conclude that various cases instituted by the plaintiff in different Courts were for recovery of that kind of loan, which was included in the definition of loan under Section 2(8) of the Act. For want of specific evidence in that regard, there could be a possibility that all the recovery suits statedly preferred by the plaintiff were for recovery of those loans, which fell within the exceptions (a) to (g) of S ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
