ORAL ORDER

1. The second appeal is preferred by the appellant – plaintiff of Special Civil Suit No.3 of 2019 before the learned Principal Senior Civil Judge, Unjha for recovery of an amount of Rs.16,05,660/-. The plaintiff before the learned trial Court had stated that he is having a firm as a commission agent and defendant No.2 too is a commission agent who is his distant nephew. For the purpose of business often they would inter se lend money. It was stated by the plaintiff that the defendant had borrowed amount from him at regular intervals and till April

2018, the amount borrowed was Rs.10,00,000/- and thereafter on 29.5.2018, Rs.5,00,000/- was given to him by way of cheque in form of hand loan and for demanding the same, a legal notice was issued on 9.1.2019. The plaintiff on the total demanded amount of Rs.15,00,000/-, had made a claim of interest amount of Rs.1,05,660/- for the amount of Rs.10,00,000/- for the period between 1.4.2018 to 31.1.2019 and from 29.5.2018 to

31.1.2019.

2. Learned advocate Mr. Mahesh Bhavsar for the appellant submitted that the learned trial Court on consideration of the evidence of the plaintiff has granted an amount of Rs.5,00,000/- @ 6% interest by partly allowing the suit. Learned advocate Mr. Bhavsar submitted that the defendant has not stepped into the witness box and the evidence of the plaintiff had stood unrebutted. Referring to the judgment in the case of Iswar Bhai C. Patel vs. Haribhai Behera [(1999) 3 SCC 457], learned advocate Mr. Bhavsar contended that adverse presumption has to be drawn under Section 114 illustration (g) of the Evidence Act, 1872. However, aggrieved by the judgment and decree of the learned Principal Senior Civil Judge, Unjha dated 10.1.2020, the plaintiff preferred Regular Civil Appeal No.14 of 2020 and moved the court vide Exh. 6 under Order 41 Rule 27 of the Code of Civil Procedure and Section 107 for permitting the appellant to produce additional evidence on 19.10.2022. The Appellate Court had ordered to keep the said application to be heard along with final hearing. Hence, it was ordered to be kept with the main appeal. Learned advocate Mr. Bhavsar submitted that though the prayer for additional evidence was made, in the final operative order, no specific order has been passed with regard to Exh. 6 and thus has made a prayer for remanding the matter.

3. Perused the appellate court judgment, the learned Appellate Court has referred the application Exh. 6 in his observation and has found no necessity to allow the same. Elaborating the observations, the learned Appellate Court considered the same to be as filling the lacuna. Even on appreciation of the documentary evidence, the learned Appellate Court observed that the original account book had not been produced nor any attested copy by producing the original books has been filed on record, account book produced was found to be handwritten document on the letterhead of the appellant, and certain amount stated was considered to be beyond limitation period observing that on 20.6.2015, reference has been made of Rs.5,00,000/- being given to the defendant and the learned Appellate Judge, thus, considered that on 14.2.2019, the amount would be hit by limitation and thus concluded observing that the documents at Sr.Nos.6 and 9 were with regard to the entry of recovery of the interest amount from the defendant, while during the deposition in the cross- examination, he has denied of having money lending business, nor has he accepted of holding any licence for money lending and thus, the learned Appellate Court concluded that it appears that without any licence, the defendant had given the loan on interest and therefore too had found that application Exh. 6 would not be maintainable.

4. Having considered the facts and evidentiary value, the learned Appellate Court has considered on the basis of Section 34 of the Indian Evidence Act that the learned trial Court has properly granted the amount and the interest thereon is ju