The court upheld the importance of documentary proof in loan repayments and affirmed that concurrent factual findings from lower courts cannot be disturbed without evidence of perversity.

JUDGMENT :

DEVASHIS BARUAH, J.

1. Heard Mr. N. Choudhury, the learned counsel appearing on behalf of the Appellant and Mr. S.I. Talukdar, the learned counsel appearing on behalf of the Respondent.

2. This is an appeal under Section 100 of the Code of Civil Procedure, 1908 (for short ‘the Code’) challenging the judgment and decree dated 16.07.2009 passed by the Court of the learned Additional District Judge (FTC), Barpeta in Money Appeal No.1/2007 whereby the judgment and decree dated 28.11.2006 passed by the learned Civil Judge Barpeta in Money Suit No.17/2005 was affirmed.

3. This Court vide an order dated 04.08.2010 admitted the instant appeal by formulating the following substantial questions of law which are reproduced herein under:

“(1) Whether the findings of the learned court below that the defendant was not able to show any receipt acknowledged by the plaintiff and failed to discharge his burden by way of adducing documentary evidence is contrary to the provisions of Section 59 and Section 60 of the EVIDENCE ACT is perverse?

(2) Whether the learned lower appellate court committed jurisdictional error by not remanding the case to the trial court under the provisions of Order XLI Rule 25 of the Code of Civil Procedure to afford opportunities to the parties to lead evidence in respect of additional issue No.5 as to maintainability of the suit because of bar under Section 7D of the Assam Money Lenders Act, 1934 after the said issue was framed by the learned lower appellate court at the time of hearing of the appeal?”

4. The question which arises before this Court is as to whether the substantial questions of law which were framed are at all involved in the instant appeal. To ascertain the same, this Court finds it relevant to take note of the brief facts which led to the filing of the instant appeal.

5. The plaintiff filed a suit seeking a decree for realization of an amount of Rs.32,000/- from the defendant. It is the case of the plaintiff that the defendant had borrowed an amount of Rs.32,000/- from the plaintiff by executing a hand note on 01.11.2003 and agreed to pay back the said amount on demand. The defendant did not pay the said amount which led the plaintiff to issue a notice of demand on 14.07.2005. It was further mentioned that the defendant received the notice but did not reply to the plaintiff and it is under such circumstances the suit was filed. It was specifically mentioned in the plaint that the plaintiff do not claim any interest.

6. Upon summons being issued, the defendant filed a written statement admitting inter alia that he had taken a loan of Rs.32,000/- from the plaintiff on 01.11.2003 by executing a hand note and agreed to pay back on demand the principal amount. It is the further case of the defendant that on 03.04.2004, the defendant paid an amount of Rs.20,000/- and subsequently on 15.08.2005, the defendant paid the remaining amount of Rs.12,000/-. It was also mentioned that after payment of the said amount of Rs.32,000/- the defendant sought for the return of the hand note which the plaintiff informed the defendant that the same would be returned from 20.08.2005 however, the plaintiff did not return. It was under such circumstances, it was stated that the instant suit should be dismissed.

7. It is relevant to take note of that at paragraph No.5 of the written statement, the defendant duly admitted the notice but denied that the defendant did not meet the demand of the plaintiff. On the basis of the averment made in the plaint as well as in the written statement, four issues were framed which are reproduced herein under:

“1. Whet