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IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Darshan Singh
R.S.A No. 2233 of 1989
Har Lal
v.
Kanwar Bhan
{Decided on 03/06/2016}
Money Lending--To attract the provisions of the Money Lender’s Act lending money should be doing regular business and not casual instances.
(A) Evidence Act, 1872, S.34--Bahi Entry--Bahi entry alone is not sufficient evidence to charge any person with liability--However, the said Bahi entry is certainly admissible in evidence being a relevant piece of evidence--Nevertheless, the law insist on the corroborative evidence of the same in order to charge a person with liability. (Para 21)
(B) Evidence Act, 1872--Admissibility of Document--When unstamped pronote admitted in evidence, later on the admissibility of pronote in evidence cannot be questioned at the appellate stage. (Para 21)
When once a document has passed the ordeal of an investigation at nisi prius as to its liability to the stamp duty or the sufficiency of stamp, it should be subjected to no further discussion--The admission of the document in evidence puts it beyond the pail of controversy at least with regard to sufficiency or insufficiency of stamps--When this objection goes, then all other consequences of the document must flow.
(C) Evidence Act, 1872, S.34--Bahi Entry--Acknowledgment of Debt--Appellant has not challenged the bahi entry being insufficiently stamped--So, the fact remains that the bahi entry is signed by the appellant and is also stamped--So, it clearly falls in the ambit of acknowledgement of debt--Such acknowledgement implies the promise to pay. (Para 22)
(D) Evidence Act, 1872, S.73--Comparison of Signatures--Court can compare the signatures only to some extent; court cannot act as an expert--Ordinarily, the Court should not take upon itself the responsibility of comparing signatures when disputed--Those are the matters of intrinsic technicalities requiring some amount of technical expertise--The Court is not technically trained or qualified to indulge in the comparison of the hand writing--The expert opinion may be helpful as a piece of evidence to the Court for forming its opinion to come to the appropriate conclusion. (Para 27)
(E) Punjab Registration of Money Lender Act, 1938, S.3--Business of Money lending--To prove that plaintiff was money lender, it was incumbent upon defendant to establish that plaintiff had indulged in the business of money lending systematically--To attract the provisions of the Money Lender’s Act lending money should be regular business and not casual instances--There should be element of continuity and habit to constitute business or profession--There must be more than occasional and disconnected loan--Word “business” imports the notion of system, repetition and continuity. (Para 32)
Mr. Darshan Singh, J.: - This Regular Second Appeal has been preferred by defendant-appellant Har Lal against the judgment and decree dated 20.07.1989 passed by the learned Additional District Judge, Rothak vide which the appeal filed by the respondent-plaintiff Kanwar Bhan against the judgment and decree dated 11.11.1987 passed by the learned Sub Judge Ist Class, Jhajjar has been allowed.
2. The facts of the case have been recapitulated by both the learned Courts below, however the facts necessary for the disposal of the present appeal are that plaintiff-respondent Kanwar Bhan filed the suit for recovery of Rs. 8240/- against appellant Har Lal on the grounds inter alia that on 06.09.1982 appellant-defendant Har Lal borrowed a sum or Rs. 9000/- from the plaintiff and executed a Bahi entry in this behalf. The interest at the rate of 1 % per month was agreed to. The defendant has repaid Rs. 4000/-. Thereafter, a sum of Rs. 8240/- along with interest were was due from the defendant-appellant, which he had not paid despite demand. Plaintiff also got served the legal notice through registered post, which was not replied by the appellant. Hence the suit.
3. Appellant-defendant contested the suit on the grounds inter alia that he never took any loan from the plaintiff-respondent nor signed any Bahi entry. The question of settling any interest does not arise. Nothing is due from the defendant to the plaintiff. He also denied that any legal notice was served upon him. He also raised certain legal and preliminary objections and pleaded for dismissal of the suit.
4. The plaintiff filed the replication controverting the pleas raised by the appellant-defendant in the written statement. From the pleadings of the parties, the following issues were framed by the learned trial Court:-
1. Whether the defendant borrowed a sum of Rs. 9000/- from plaintiff on 06.09.1982 and executed bahi entry agreeing to repay the amount along with interest at the rate of Rs.1 % p.m? OPP
2. Whether the defendant has paid a sum of Rs. 4000/- out of the loan amount of Rs. 9000/- and now only a sum of Rs. 8240/- is standing towards him as alleged in para no.2 of the plaint?OPP
3. Whether the suit is false and fictitious and filed due to enmity. If so its effect?OPD
4. Whether the suit is not properly valued for the purpose of court fee and jurisdiction?OPD
5. Whether the plaintiff is money lendor without licence?OPD
6. Whether the defendant is entitled for special costs?OPD
7. Relief.
5. On appreciating the evidence adduced by the parties and the contentions raised by their counsel, the learned trial Court dismissed the suit filed by the plaintiff-respondent vide judgment and decree dated 11.11.1987.
6. Aggrieved with the aforesaid judgment and decree, plaintiffrespondent preferred the appeal, which has been allowed by the learned First Appellate Court. The suit filed by the plaintiff-respondent was decreed for recovery of Rs. 7000/- in favour of the plaintiff and against the appellant-defendant with proportionate costs. Plaintiff was also held entitled to interest at the rate of 1 % per month on the principal amount of Rs. 5000/- from the date of filing the suit i.e. 30.08.1985 till realization. Hence this Regular Second Appeal.
7. I have heard Mr. A.P.S.Sandhu, Advocate, learned counsel for the appellant, Mr. Ajay Bishnoi, Advocate for Mr. Mahabir Singh Sindhu, Advocate, learned counsel for the respondent and have carefully gone through the record of the case.
8. Initiating the arguments, learned counsel for the appellant contended that the suit of the plaintiff is based on the Bahi entry Ex.PW2/A. He contended that as per section 34 of the Indian Evidence Act, 1872, the Bahi entry alone cannot fix the liability. He further contended that even the suit for recovery is not maintainable on the basis of the Bahi entry as the said Bahi entry does not fall within the definition of promissory note, bond and acknowledgment of debt as the Bahi entry does not fulfi
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