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2009 Supreme(UK) 205
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Hon’ble Prafulla C. Pant, J.
Pooran Chandra Lohani S/o Sri Jai Dutt Lohani …….Appellant
Versus
Kailash Chandra Chilkoti S/o Sri Ram Dutt Chilkoti … Respondent
Second Appeal No. 441 of 2001
Old No. 2063 of 1985
Decided on : April 27, 2009
The main legal point established in the judgment is the interpretation and application of procedural rules under Order XVII of the Code of Civil Procedure, 1908, and the influence of such interpretation on the court's decision.
Headnote:
C.P.C. - Civil Procedure - Order XVII Rule 2, Order XVII Rule 3, U.P. Money Lending Act - [Order XVII Rule 2, Order XVII Rule 3, U.P. Money Lending Act] - The court discussed the provisions of Order XVII Rule 2 and Rule 3 of the Code of Civil Procedure, 1908, and the U.P. Money Lending Act. The interpretation of these provisions influenced the court's decision in proceeding with the case and reducing the rate of interest.
Fact of the Case:
The plaintiff filed a suit for recovery of money against the defendant, who had taken a loan and executed a pronote. The defendant alleged that the loan was to be adjusted towards expenditure incurred on the plaintiff's vehicle. The trial court decreed the suit, and the first appellate court affirmed the decision.
Finding of the Court:
The court found that the trial court did not err in proceeding under Rule 3 of Order XVII of the Code of Civil Procedure, and the first appellate court did not err in upholding said order.
Issues: The issues included the borrowing of the amount, execution of the pronote, consideration, categorization of the pronote, understanding of payment, and applicability of the U.P. Money Lending Act.
Ratio Decidendi: The court's decision was influenced by the interpretation of Order XVII Rule 2 and Rule 3 of the Code of Civil Procedure, and the finding that the trial court and the first appellate court did not err in their application.
Final Decision: The appeal was dismissed, and the decrees passed by the lower courts were affirmed with a modification to reduce the rate of interest.
Prafulla C. Pant, J.
This appeal, preferred under Section 100 of the of the Code of Civil Procedure, 1908, is directed against the judgment and decree dated 16.09.1985, whereby the first appellate court (District Judge, Pithoragarh), dismissed the civil appeal No. 4 of 1984, affirming the judgment and decree dated 19.10.1984, passed by the trial court (Civil Judge, Almora, Camp Pithoragarh), in Suit No. 03 of 1983.
2. Heard learned counsel for the parties and perused the record.
3. Brief facts giving rise to this appeal are that plaintiff / respondent Kailash Chandra Chilkoti instituted suit No. 03 of 1983, before the trial court with the pleading that the defendant (present appellant) took loan of Rs. 13,000/- from the plaintiff on 10.06.1980, and executed a pronote. It is further pleaded that 14% interest per annum was agreed to be paid by the defendant to the plaintiff. It is alleged in the plaint that the defendant failed to repay the loan. It is further alleged that neither the amount of loan nor any amount towards interest was paid. Therefore, the suit for recovery of money instituted.
4. Defendant was served with the summons. He filed his written statement. In the written statement execution of pronote is not denied by the defendant, but it is alleged that repayment of loan was to be adjusted towards the expenditure incurred by the defendant on the vehicle of the plaintiff which was plying with the defendant’s Firm M/s Jai Dutt Lohani and Sons, for transportation of grains on hire, for the government supply.
5. The trial court, on the basis of the pleadings of the parties, framed following issues:
1. Whether, the defendant borrowed an amount of Rs. 13,000/- from the plaintiff on 10.06.1980, and executed the pronote?
2. Whether, the pronote dated 10.06.1980 execution of which is admitted to the defendant, is without consideration?
3. Whether, the pronote in question was executed in the manner as and under the impression as set forth in Para 19, 20 and 21 of the written statement?
4. Whether, the pronote in question comes under the category of a bond? If so, its effect?
5. Whether, there was an understanding that an amount of Rs. 13,000/- shall be paid to the plaintiff M/s Jai Dutt Lohani and Sons for meeting the fuel consumption charges of the truck for running the said truck, as alleged by the defendant in para 15 to 19 of the written statement?
6. Whether, the suit is barred by the provisions of U.P. Money Lending Act?
7. To what relief, if any, is the plaintiff entitled?
6. From the record it appears that the plaintiff adduced his evidence as P.W. 1 Kailash Chandra Chilkoti, and the others as P.W. 2 Ram Dutt Chilkoti and P.W. 3 S.S. Mehta, Branch Manager of the Cooperative Bank, Pithoragarh.
7. On behalf of the defendant adjournments were sought for adducing the evidence. After adjournment, the case was fixed for evidence of defendant, for 18.10.1984. On said date counsel for the defendant appeared but no evidence was adduced, instead again adjournment application was moved. Said application for adjournment was rejected, and the trial court proceeded under Order XVII Rule 3 of the Code of Civil Procedure, 1908. On 19.10.1984, the judgment and decree was passed by the trial court, decreeing the suit against the defendant for recovery of Rs. 17,882/- with interest for pendency of suit till the payment is made at the rate of 14% per annum. Aggrieved by said judgment and decree, the defendant preferred civil appeal (Civil Appeal No. 04 of 1984) before the District Judge, Pithoragarh. The first appellate court after hearing the parties, dismissed the appeal vide its impugned judgment and order dated 16.09.1985. Hence, this appeal was filed by the defendant before the Allahabad High Court on 21.11.1985, where it was admitted on 19.05.1986, on following substantial question of law:
Whether, Rule 2 of Order XVII of C.P.C. as inserted by Allahabad High Court amend
