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IN THE HIGH COURT OF ALLAHABAD
K. N. MISRA, S. SAGHIR AHMAD
KURI LAL RUNGTA - Appellant
Versus
BANARSI DEVI - Respondents
First Appeal 74 Of 1978
Decided On : 05/21/1985
CIVIL PROCEDURE CODE - ORDER XVII, RULE 3 - SUIT DECIDED UNDER ORDER XVII, RULE 3 - DEFENDANT'S COUNSEL PRESENT AND MOVED ADJOURNMENT APPLICATION - DEFENDANT DEEMED TO BE PRESENT - COURT CAN PROCEED TO DECIDE SUIT UNDER ORDER XVII, RULE 3 - EXPLANATION TO RULE 2 OF ORDER XVII - APPLICATION FOR ADJOURNMENT REJECTED - COURT CAN PROCEED UNDER ORDER XVII, RULE 3 - WORD "FORTHWITH" IN ORDER XVII, RULE 3 - MEANING OF - COURT CAN DECIDE SUIT WITHIN REASONABLE PERIOD - LIMITATION ACT - SUIT FOR RECOVERY OF LOAN - ACKNOWLEDGMENT OF LIABILITY - PAYMENT OF INTEREST - SUIT WITHIN LIMITATION - JURISDICTION - PART OF CAUSE OF ACTION ACCRUING WITHIN JURISDICTION - COURT HAS JURISDICTION.
Fact of the Case:
Defendant took a loan of Rs. 30,000/- from the deceased Baij Nath Rajgariya at Seksaria Sugar Mills Private Limited, Babhanan Bhabhinpur, Tahsil Utraul, District Gonda at the rate of interest of 9 per cent per annum. The interest was payable at every three months. The defendant had pledged certain shares to Sri Baij Nath Rajgariya as security for the payment of the loan amount. An agreement is said to have been executed in respect of the said loan transaction on 27th July, 1959. The plaintiffs, who are heirs and successors of the creditor deceased Baij Nath Rajgariya, have given the details of payment made by the defendant in para 4 of the plaint and it is stated that the interest up-till 31st October, 1965 has been paid. The defendant had issued cheque No. 002766 of Rs. 2,700/-dated 15-12-1967 and cheque No. 002792 of Rs. 2,700/- dated 31-12-1967 drawn on State Bank of India, but the same were dishonoured. The defendant had, however, in his letter dated 3-2-1968 had assured the husband of the plaintiff No. 5 that he will send a bank draft. But no bank draft was sent by the defendant as was promised. The defendant had written another letter dated 9-3-1969 in which he had assured to send money by 15th April, 1969 and again wrote several letters about the debt but no money was paid according to the promise. The defendant had, however, paid on 6-7-1972 a sum of Rs. 1000/-towards payment of interest on the above-mentioned debt and had further assured to get the above-mentioned shares, on the security of which said loan of Rs. 30,000/- was taken, transferred in the name of the plaintiffs otherwise the amount was promised to be paid. The defendant is said to have given this in writing (paper No. Ga 1/35), but since the defendant had neither transferred the shares nor he had made any payment, and, as such, the plaintiffs filed the present suit against the defendant for recovery of said amount within three years from the date of the payment of Rs. 1,000/- towards interest on the loan amount, which was paid on 6-7-1972 and evidenced by paper No. Ga-1/35- Ext. 9.
Finding of the Court:
1. The defendant is personally liable to pay the debt in question, besides the lien on the shares of the defendant, alleged in the plaint. 2. The defendant is not personally liable and the plaintiff is entitled only to get transferred the said shares or to sell them as alleged in the written statement? 3. Whether this Court has no territorial jurisdiction to try this suit? To what relief, if any, is the plaintiff entitled?
Issues: 1. Whether the defendant is personally liable to pay the debt in question, besides the lien on the shares of the defendant, alleged in the plaint. 2. Whether the defendant is not personally liable and the plaintiff is entitled only to get transferred the said shares or to sell them as alleged in the written statement? 3. Whether this Court has no territorial jurisdiction to try this suit? To what relief, if any, is the plaintiff entitled?
Ratio Decidendi: 1. Where the defendant is either personally present at the time when the case is taken up on the adjourned date of hearing or is deemed to be present as is envisaged by Explanation I to O. XVII, R. 2 of the Code, the Court, in our opinion, rightly proceeded to decide the suit under O. XVII, R. 3 because the defendant had defaulted in performing the acts mentioned in R. 3 for which he had obtained adjournment on the previous date of hearing. 2. The alleged leaving of Court by the defendants counsel on the rejection of the application for adjournment of the case without further taking any steps by moving an application for withdrawing his power from the case could not amount to his effective withdrawal from the case, and, so the defendant could not be taken to be absent at the hearing. 3. The word "forthwith" used in O. XVII R. 3 cannot be taken to be a mandate to decide the suit the same day as a penalty for default. Thus, the judgment and decree dated 24-8-1978 passed by the Court below is clearly covered by the provisions contained in O. XVII, R. 3 of the Code and no exception can be taken to it on the aforesaid ground urged by the learned counsel for the appellant.
Final Decision: Appeal dismissed.
K. N. MISRA, J.
( 1 ) THIS First Appeal under S. 96 of the Code of Civil Procedure (for short the Code) is directed against the judgment and decree dated 24-8-1978 passed by Civil Judge, Gonda decreeing the plaintiffs suit with costs.
( 2 ) BRIEFLY stated, the facts of the case are that the plaintiffs filed a suit for recovery of Rs. 50,000/- with interest, pendente lite and future, till the date of recovery. It was averred that the defendant Koori Lal Rungta had taken a sum of Rs. 30,000/- as loan from one deceased Baij Nath Rajgariya at place Seksaria Sugar Mills Private Limited, Babhanan Bhabhinpur, Tahsil Utraul, District Gonda at the rate of interest of 9 per cent per annum. The interest was payable at every three months. It was averred in para 1 of the plaint that the defendant had pledged certain shares to Sri Baij Nath Rajgariya as security for the payment of the loan amount. An agreement is said to have been executed in respect of the said loan transaction on 27th July, 1959. The plaintiffs, who are heirs and successors of the creditor deceased Baij Nath Rajgariya, have given the details of payment made by the defendant in para 4 of the plaint and it is stated that the interest up-till 31st October, 1965 has been paid. The defendant had issued cheque No. 002766 of Rs. 2,700/-dated 15-12-1967 and cheque No. 002792 of Rs. 2,700/- dated 31-12-1967 drawn on State Bank of India, but the same were dishonoured. The defendant had, however, in his letter dated 3-2-1968 had assured the husband of the plaintiff No. 5 that he will send a bank draft. But no bank draft was sent by the defendant as was promised. The defendant had written another letter dated 9-3-1969 in which he had assured to send money by 15th April, 1969 and again wrote several letters about the debt but no money was paid according to the promise. The defendant had, however, paid on 6-7-1972 a sum of Rs. 1000/-towards payment of interest on the above-mentioned debt and had further assured to get the above-mentioned shares, on the security of which said loan of Rs. 30,000/- was taken, transferred in the name of the plaintiffs otherwise the amount was promised to be paid. The defendant is said to have given this in writing (paper No. Ga 1/35), but since the defendant had neither transferred the shares nor he had made any payment, and, as such, the plaintiffs filed the present suit against the defendant for recovery of said amount within three years from the date of the payment of Rs. 1,000/- towards interest on the loan amount, which was paid on 6-7-1972 and evidenced by paper No. Ga-1/35- Ext. 9. The defendant-appellant contested the suit alleging that the said loan amount was advanced to him at Basti and not at the aforesaid place in district Gonda. It was, thus, pleaded that the Court at Gonda has no jurisdiction to try the suit. It was further pleaded that the aforesaid loan is not recoverable personally from the defendant since in lieu of the loan taken by the defendant he had handed over the shares and blank transfer was duly executed in respect of his shares in the Seksaria Sugar Mills Private Limited and it was agreed between the parties that the plaintiff will get the shares duly transferred in lieu of the debt and the defendant will have no liability to pay it in cash. The facts regarding payment of the amount by the defendant towards the debt, as detailed in the plaint, were not disputed by the defendant and in the written statement it was asserted that the payments shown in the plaint were all made to the plaintiffs. It was, however, asserted that the suit is not within limitation and is not maintainable and the defendant is not personally liable to make payment of the aforesaid debt as the shares were handed over to the plaintiff for transfer by executing blank transfer form in favour of the plaintiff and it was the responsibility of the plaintiff to have got those shares transferred in his name. It was, thus, asserted that the suit deserves to be dism
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