Failure to prove a loan transaction and acknowledgment within the limitation period can lead to the dismissal of a money suit.

Abhay M. Nak, J.

1. This first appeal has been preferred by the plaintiff against dismissal of his money suit for recovery of Rs. 64,000/- by the Court of 15th ADJ, Indore vide judgment and decree dated 16.08.2005 passed in Civil Suit No. 13-B/2005.

2. Briefly stated relevant facts are that the plaintiff/appellant instituted a suit for recovery of Rs. 64,000/-with allegations that the defendant, on account of his need, received a sum of Rs. 50,000/-for his business in the name and style of M/s. Neha Pulses and executed a receipt in his own handwriting and under his own signature on 05.01.2000 on his letterhead. Interest was orally agreed at the rate of 1.50% per month. Defendant did not make the repayment Consequently, demand notice was issued by the plaintiff to the defendant on 06.07.2001. Service was avoided by the defendant and consequently, notice came back unserved. Thus, the plaintiff instituted suit for Rs. 64,000/-, which included interest to the tune of Rs. 13,750/- and notice expenses Rs. 250/-.

Defendant, after being served with the summons, submitted his written statement refuting thereby averments contained in the plaint. He, inter-alia, stated that he had no acquaintance with the plaintiff and further, he had no need of money. It has been stated specifically that defendant has not obtained money from the plaintiff and did not execute the alleged receipt. Plaintiff has prepared it by forgery.

3. In the evidence, plaintiff examined himself and handwriting expert, namely, Harbans Singh Tuteja. On the other hand, defendant examined himself alone. After appreciating the evidence on record, learned trial Judge dismissed the suit of the plaintiff holding that plaintiff failed to prove that the defendant had obtained a lone of Rs. 50,000/-from him. Needless to state that the statement as well as the report of the handwriting expert were also not believed. Aggrieved by the aforesaid judgment and decree dated 16.08.2005, this appeal has been preferred.

4. Shri Vishal Baheti, learned counsel appearing for the appellant and Shri V.K. Jain, learned counsel for the respondent made their respective submissions.

5. It has been contended on behalf of the appellant that plaintiff has proved his case vide his own statement and by handwriting expert. Learned trial Judge has committed an error in disbelieving them. According to the learned counsel for the appellant, findings recorded by the learned trial Judge are contrary to the evidence on record and are liable to be set aside.

Shri V.K. Jain, learned counsel appearing for the defendant/respondent supported the impugned judgment and decree. He drew attention of this Court to various discrepancies in the statement of handwriting expert, which made his report untrustworthy. According to Shri V.K. Jain, learned counsel, the suit has been rightly dismissed and needs no interference.

6. Without entering much in the controversy, as agitated by the rival parties, it is observed that the case in hand needs to be dealt with from altogether another angle in view of the pleadings and material on record. Although the plaintiff has pleaded that the defendant has received Rs. 50,000/-from him, he has nowhere pleaded the exact date of advancement of loan of Rs. 50,000/-. He has not specified that loan of Rs. 50,000/-was advanced on 05.01.2000 when the receipt was allegedly executed in his favor by the defendant. This is more explicit from the notice of demand contained in Ex.P/2. It is clearly stated in the said notice that the defendant had received Rs. 50,000/-on interest at the rate of 1.50% PM for the business of firm M/s. Neha Pulses (sole proprietorship business of the defendant), which was to be repaid on 05.01.2000. It is further stated in Ex. P/2 that interest up to 05.01.2000 was paid by the defendant to the plaintiff and that the defendant executed a receipt under his own signature on his letterhead about having received Rs. 50,000/-. Again in paragraph 2 of the notice contained in Ex