JUDGMENT

Ramchandra Singh Jhala, J. - The instant second appeal has been filed by the appellant against the judgment and decree dated 27.01.1997 passed by learned Additional District and Sessions Judge, Churu in Civil Appeal No.25/1996 whereby he allowed the appeal and reversed the judgment and decree dated 21.01.1995 passed by learned Civil Judge (Senior Division), Churu in Civil Suit No.35/81 (17/1993) decreeing the suit of the appellant-plaintiff for Rs. 46,992/- with interest.

2. Brief facts of the case are that the plaintiff-appellant is a registered partnership firm, in which, Dungarmal and Jhoomarmal are the partners. The defendant-Nirmal Kumar was a dealer of old and antic goods curious. On 19.08.1978, the defendant took a loan of Rs. 30,500/- from the plaintiff firm at the rate of Rs. 1.25% per month and executed a promissory note and also issued a receipt in this respect. Since the defendant did not pay the said loan amount, the plaintiff-appellant sent a registered notice on 10.6.1980 to the defendant, but in vain, therefore, a suit was filed by the plaintiff for recovery of Rs. 46,992/- with interest from the defendant late Shri Nirmal Kumar in the Court of District Judge, Churu which was later on transferred to Civil Judge (Senior Division), Churu because after 1992 the Civil Judge (Junior Division) got the jurisdiction to hear the suit upto the valuation of Rs. 50,000/-.

3. The defendant late Nirmal Kumar filed written statement and controverted all the facts mentioned in the suit and submitted that he did not take any loan from the plaintiff-firm and no pronote was executed and said that the suit has wrongly been filed against him. The defendant Shri Nirmal Kumar further stated in his written statement that his father had mortgaged some ornaments with Shri Ram Kumar Bangar and took some loan from him and after death of defendant''s father, he did not had sufficient money to pay the loan amount of Shri Ram Kumar Bangar, therefore, the plaintiff took the delivery of the ornaments and paid Rs. 51,000/- to Shri Ram Kumar Bangar. The said ornaments are lying with the plaintiff. Thereafter defendant Shri Nirmal Kumar requested the plaintiff to purchase the said ornaments and they would sell the same. The plaintiff accepted the same and purchased the said ornaments, but they could not sell the said ornaments in time, therefore, some loss occurred and the plaintiff told the defendant that on his advise he purchased the said ornaments and when they were unable to sale the same in time, the plaintiff got loss, therefore, he asked the defendant to give pronote of the ornaments in four parts and defendant signed four blank forms. In the reply it is also stated by the defendant that in selling the ornaments, the defendant helped the plaintiff and the plaintiff received more money then due. The defendant has also stated that the plaintiff is doing the business of money lending and he did not have licence for the same, therefore, the suit filed by the plaintiff is not maintainable.

4. In the rejoinder filed by the plaintiff, all the contents of the written statement were controverted and it was stated the plaintiff did not pay Rs. 51,000/- or any other amount to Shri Ram Kumar Bangar nor he has received any ornament from Shri Ram Kumar Bangar. It was stated by the plaintiff that all the facts mentioned in the written statement are false.

The learned trial court framed following issues on the basis of the pleadings of the parties:-

6. The learned trial court decided all the issues in favour of appellant-plaintiff and decreed the suit vide judgment dated 21.1.1995

7. Feeling aggrieved with the judgment and decree dated 21.1.1995 passed by the learned trial court, the defendant Nirmal Kumar filed an appeal before the Additional District Judge, Churu. The learned Additional District Judge, Churu has also decided the issues No.1 to 3 and 5 to 9 in favour of plaintiff and held that the defendant has taken a loan and executed a prono