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2016 Supreme(P&H) 1152
PUNJAB AND HARYANA HIGH COURT
Darshan Singh, J.
Sukhdev Singh and others - Appellants
Versus
Jagtar Singh - Respondent
R.S.A. No. 3836 of 2013 (O&M)
Decided On : 05-04-2016
For the Appellant : S.S. Salar.
For the Respondents: Harmanjit Singh, Harpreet Singh Warring.
The burden of proof for the repayment of a loan shifts to the defendant after admitting the receipt of the loan, and the plea of repayment raised in the written statement must be proved like any other fact.
Headnote:
loan - recovery suit - Code of Civil Procedure, 1908 - Order 8, Rule 9
Fact of the Case:
The plaintiff filed a suit for the recovery of a loan amount along with interest secured by a mortgage deed. The defendants claimed to have repaid the loan, but the lower courts decreed the suit in favor of the plaintiff. The defendants appealed, but the appeal was dismissed.
Finding of the Court:
The court found that the defendants failed to prove the repayment of the loan amount along with interest, despite admitting the receipt of the loan and the execution and registration of the mortgage deed. The court held that the plaintiff was entitled to recover the loan amount along with interest from the defendants.
Issues: The issues included the entitlement to recovery, limitation, valuation of the suit, maintainability, estoppel, cause of action, and locus standi.
Ratio Decidendi: The burden of proof shifted to the defendants to prove the repayment of the loan after admitting the receipt of the loan. The court emphasized that the plea of repayment of loan raised in the written statement by the defendants was required to be proved like any other fact.
Final Decision: The appeal was dismissed, and the plaintiff was entitled to recover the loan amount along with interest from the defendants.
Darshan Singh, J.
The present appeal has been preferred by the appellant-defendants against the judgment and decree dated 30.05.2013 passed by the learned Additional District Judge, Sirsa, vide which the appeal filed by them against the judgment and decree dated 25.01.2013, passed by the learned Additional Civil Judge (Sr. Division), Mandi Dabwali, has been dismissed.
2. For the sake of convenience, the status of the parties is being mentioned as in the original suit.
3. The plaintiff-respondent has filed the suit for recovery of Rs. 3,54,000/- along with pendente lite and future interest at the rate of 12 % per annum by way of the sale of the mortgaged property i.e. land measuring 19 Kanals 7 Marlas detailed and described in the head note of the plaint situated in the revenue estate of Village Takhatmal, Tehsil and District Sirsa. As per the averments of the plaint, defendants had borrowed a sum of Rs. 1,50,000/- from the plaintiff and in consideration thereof, he mortgaged the aforesaid property as a security to repay the loan amount along with interest at the rate of 24 % per annum. The mortgage deed without possession was executed and got registered at serial no. 1426 dated 25.02.1997 with the office of Sub-Registrar, Kalanwali in favour of the plaintiff. The plaintiff got issued the legal notice to the defendants to pay the loan amount, but of no avail. Hence, the suit.
4. Appellant-defendant no.2 Sukhdev Singh filed the written statement and has admitted the factum of taking loan of Rs. 1,50,000/- from the plaintiff and mortgage of the suit property as a security to repay the loan amount. But, it was further pleaded that the aforesaid amount of loan has already been repaid in the presence of Surjit Singh son of Gurdial Singh and Hargobind Singh son of Ranjit Singh. But, at that time, the original mortgage deed was not returned to him by stating that the same has been misplaced. It is further pleaded that the plaintiff has filed the false suit due to greed of money. The remaining defendants have also adopted the written statement filed by appellant-defendant no.2.
5. From the pleadings of the parties, the following issues were framed by the learned trial Court:-
1. Whether the plaintiff is entitled to recovery or Rs. 3,54,000/- from the defendant along with interest at the rate of 18 % per annum? OPP
2. Whether the suit of the plaintiff is within limitation? OPP
3. Whether the suit has been properly valued for the purpose of Court fee & jurisdiction? OPP
4. Whether the suit of the plaintiff is not maintainable? OPD
5. Whether the plaintiff is estopped to file the present suit by his own act and conduct? OPD
6. Whether the plaintiff has no cause of action and locus standi to file the present suit? OPD
7. Relief.
6. On appreciating the material on record and the contentions raised by learned counsel for the parties, the learned trial Court decreed the suit filed by the plaintiff-respondent vide impugned judgment and decree dated 25.01.2013.
7. Aggrieved with the aforesaid judgment and decree dated 25.01.2013, the appellants-defendants preferred the appeal and the same was also dismissed by the learned Additional District Judge, Sirsa, vide impugned judgment and decree dated 30.05.2013. Hence this Regular Second Appeal.
8. I have heard Mr. S.S. Salar, Advocate, learned counsel for the appellants, Mr. Harmanjit Singh and Mr. Harpreet Singh Warring, Advocate, learned counsel for the respondent and have meticulously gone through the paper book.
9. Initiating the arguments, learned counsel for the appellants contended that this fact is not disputed that appellants have taken a loan of Rs. 1,50,000/- from the plaintiff on 25.02.1997. But, the said loan amount was returned by them in presence of Surjit Singh son of Gurdial Singh and Hargobind Singh son of Ranjit Singh. Said Hargobind Singh has appeared into the witness box as PW-2 and has fully corroborated the statement of appellant Sukhdev Singh with respect to the repayment of the lo
