This Court has given thoughtful consideration to the contentions canvassed by the learned counsel for the parties. It is not in dispute that the parties are resident of the same village, i.e. Sawargaon and the relation between the parties are cordial. It is also not in dispute that the defendant had purchased the stamp paper on 20-12-1979 on which usanwar chitthi is scribed. Perusal of the usanwar chitthi itself would reveal that the contents of the same are in the nature of the promissory note. The contents of usanwar chitthi are scribed in vernacular and the same could be translated as under :
Hand Loan document
Person in whose favour written : Baliram Rupaji Nagulkar R/o Sawargaon Jire Tq.
Washim, District Akola.
Person who executed the document : Ganpat Kashiba Tadas, R/o Sawargaon Jire, Tq. Washim.
Distt. Akola.
I, the undersigned execute this hand loan receipt to the effect that I have taken the hand loan amount of Rs. 5,000/- from you to meet the household expenses as well as the expenses for digging the well in the field Survey No. 87/1-B and I promise to pay the same on demand and therefore I have executed this hand loan document which would be binding against my estate and heirs. This date 1-2-1981
Scribe : Nilkanthrao Deorao Sarnaik 1-2-1981
Witness :
1. Bhagwan Mahadu Paddhan
1-2-1981
Signed
Ganpat Kashiba Tadas D. K.
7. Perusal of the contents of the aforesaid document would reveal that it is in fact a promissory note and not a bond and therefore, this Court is of the considered opinion that no impounding was necessary as is required by Section 34 of the Bombay Stamps Act.
Baliram S/O Rupaji Nagulkar vs Ganpat S/O Kashiba Tadas on 29 April, 2004
Equivalent citations: 2005 (1) MhLj 543
Bench: S Kharche
1. By invoking the jurisdiction of this Court under Section 100 of the Code of Civil Procedure, the unsuccessful plaintiff has filed this appeal taking an exception to the judgment dated 8-6-1988 passed by the Joint District Judge whereby the appeal has been allowed and the judgment and decree passed by the trial Court on 31-1-1986 directing the defendant to pay Rs. 5,000/- with costs, has been set aside and the suit of the plaintiff is dismissed.
2. Brief facts are required to be stated as under :
The parties are resident of the same village Sawargaon and the relation between them are cordial. On 1-2-1981 the defendant is said to have taken a hand loan of Rs. 5,000/- to meet his household and agricultural expenses and executed usanwar chitthi in favour of the plaintiff. This loan amount was demanded by notice dated 19-1-1983 to which the defendant gave reply on 3-2-1983 and refused to pay the amount of loan and therefore, the plaintiff filed suit for recovery of the said hand loan of Rs. 5,000/- on the basis of usanwar chitthi. The defendant strongly resisted the contentions of the plaintiff and contended that the usanwar chitthi is attested by two witnesses and therefore, it was liable to be impounded under Section 34 of the Bombay Stamps Act being a bond. The defendant contended that the plaintiff is moneylender and doing the business of money lending without license. On 7-5-1979 he and his brother obtained the loan of Rs. 1,300/- from the plaintiff at interest @ Rs. 5% per annum and the loan amount was also repaid. There was a dispute in between the defendant and his brother on account of partition of the property and therefore, he had purchased one stamp paper which was signed by the defendant when it was blank and he handed over the same to the plaintiff, but actually the stamp paper was to be used for recording the partition. The plaintiff has misused the blank signed stamp paper and fabricated the document as usanwar chitthi and as such the suit is liable to be dismissed with compensatory cost.
3. On the aforesaid pleadings, the trial Court has framed issues and the parties adduced the evidence in support of their contentions. The trial Court, on appreciation of the oral as well as documentary evidence recorded the finding that the plaintiff had advanced hand loan of Rs. 5,000/- to the defendant on 1-2- 1981 and that the defendant in turn, executed the hand loan receipt dated 1-2- 1981. He negatived the contention that the plaintiff is moneylender and doing the business of money lending without any license and that the usanwar chitthi is fabricated document. The trial Court also recorded the findings that there is no need to get usanwari chitthi impounded in view of Section 34 of the Bombay Stamps Act, Consistent with these findings, the trial Court decreed the suit and directed the defendant to pay Rs. 5,000/- to the plaintiff. The defendant being aggrieved by this judgment and decree passed by the trial Court, carried appeal to the District Court. The learned Joint District Judge on hearing the learned counsel for the parties, dismissed the appeal on the ground that the suit is barred by the period of limitation as it has been instituted beyond three years from the date on which usanwar chitthi was executed by the defendant. This judgment of the appellate Court is under challenge in this second appeal.
4. Mr. Mehadia, the learned counsel for the plaintiff contended that the trial Court correctly appreciated the evidence adduced by the parties and held that the usanwar chitthi was written on the stamp paper which was purchased by the defendant on 20-12-1979 and the usanwar chitthi was executed on 1-2-1981 and therefore, the suit was filed within limitation and the defendant would be liable to refund the amount of loan of Rs. 5,000/-. He contended that the objection raised by the defendant regarding impounding of usanwar chitthiand that the document is attested by witnesses and therefore it is a bond and is not admissible in evidence unless impounded and that there was a change in the date and material alterations regarding the change of the dates have been negatived by rejecting the application (Exh. 22) and the usanwar chitthi was made admissible in evidence. He contended that the defendant obtained hand loan of Rs. 5,000/- on 1-2-1981 and executed usanwar chitthi and the suit has been filed on 30-4-1983 and therefore, it Was perfectly within limitation. He contended that the appellate Court has not considered the aforesaid aspects of the matter and wrongly interpreted the contents of usanwar chitthi particularly regarding the dates and interpolation in it and reached erroneous conclusion that the suit is barred by period of limitation. He contended that the appellate Court has committed an error in coming to the conclusion that the usanwar chitthi was executed on 1-2- 1981 and therefore under the circumstances, the impugned judgment cannot be sustained in law.
5. Mr. Badiye, the learned counsel for the defendant contended that perusal of usanwar chitthi itself would show that there are interpolation in the dates and the plaintiff served the notice dated 19-1-1983 by mentioning that the hand loan was obtained on 1-2-1980 and the plaintiff also admitted during his cross- examination that the contents of the notice are correct and therefore the appellate Court was perfectly justified in reaching the conclusion that the usanwar chitthi was executed on 1-2-1980. He contended that the suit has not been instituted for recovery of the hand loan within three years as is required by Article 19 of the Limitation Act, 1963. He contended that since the suit has been barred by the period of limitation, the appellate Court was perfectly justified in dismissing the suit and no case has been made out for interference and the appeal may kindly be dismissed with costs.
6. This Court has given thoughtful consideration to the contentions canvassed by the learned counsel for the parties. It is not in dispute that the parties are resident of the same village, i.e. Sawargaon and the relation between the parties are cordial. It is also not in dispute that the defendant had purchased the stamp paper on 20-12-1979 on which usanwar chitthi is scribed. Perusal of the usanwar chitthi itself would reveal that the contents of the same are in the nature of the promissory note. The contents of usanwar chitthi are scribed in vernacular and the same could be translated as under :
Hand Loan document
Person in whose favour written : Baliram Rupaji Nagulkar R/o Sawargaon Jire Tq.
Washim, District Akola.
Person who executed the document : Ganpat Kashiba Tadas, R/o Sawargaon Jire, Tq. Washim.
Distt. Akola.
I, the undersigned execute this hand loan receipt to the effect that I have taken the hand loan amount of Rs. 5,000/- from you to meet the household expenses as well as the expenses for digging the well in the field Survey No. 87/1-B and I promise to pay the same on demand and therefore I have executed this hand loan document which would be binding against my estate and heirs. This date 1-2-1981
Scribe : Nilkanthrao Deorao Sarnaik 1-2-1981
Witness :
1. Bhagwan Mahadu Paddhan
1-2-1981
Signed
Ganpat Kashiba Tadas D. K.
7. Perusal of the contents of the aforesaid document would reveal that it is in fact a promissory note and not a bond and therefore, this Court is of the considered opinion that no impounding was necessary as is required by Section 34 of the Bombay Stamps Act.
8. The crucial question that arises in this appeal as to whether the suit filed on 30-4-1983 by the plaintiff for recovery of the loan amount is barred by the period of limitation. In this context, the appellate Court did not enter into the merits of objections raised by the defendant on the ground that the application (Exh. 22) submitted by the defendant was already rejected by his predecessor and therefore, he also overruled all the objections of the defendant including that of the limitation. The appellate Court adhered to this point and observed in the judgment that the cursory perusal of usanwar chitthi would reveal that it is dated 1-2-1981 but the minute perusal of the same reveal that the date 1-2-1981 stated immediately after the contents is written by a different ink at three places the datel-2-1981 is mentioned, one immediately after the contents of the usanwar chitthi, the second below the signature of the scribe and the third below the signature of the attesting witness. The plaintiff and his witness Nilkanth admit that the date 1-2-1981 immediately after the contents of usanwar chitthi is over- written. Nilkanth has stated that he over wrote that date with the pen with which he wrote the contents and he signed on the usanwar chitthi. But, the appellate Court refused to accept the contentions of Nilkanth because the ink in which the contents and the signature of Nilkanth are written is of different colour than that of an ink of the date 1-2-1981. Furthermore, it appears that the year '81' was made to appear by rewriting over the figure '80'. To wipe out the difference in the ink, the entire date 1-2-1980 was rewritten as 1-2-1981 written below the signatures of the scribe and the attesting witness. On the basis of these observations, the appellate Court drew the conclusion that when the usanwar chitthi was written, no date was there below the usanwar chitthi and all the three dates were written later on before filing of the suit. The variance in the colour of the ink by which the dates are written were taken into consideration by the appellate Court along with the material aspect of the matter that usanwar chitthi is written on the stamp paper dated 20-12-1979.
9. This Court also minutely perused the usanwar chitthi and found that there is no reason to take a different view of the matter because the dates are written at three places and the figure '80' which was originally written was changed into the figure '81' by making interpolation in the document. The appellate Court was perfectly justified in taking into consideration the fact that the notice dated 19-1-1983 was served on the defendant wherein it has been clearly stated by the plaintiff that the defendant had obtained the hand loan of Rs. 5,000/- on 1-2-1980 and not on 1-2-1981 and that the contents of the notice are correct. Therefore , it is obvious that the judgment of the appellate Court is well reasoned and it would be obvious that the suit instituted after the period of three years would be barred by period of limitation under Article 19 of the Limitation Act as the suit has been instituted beyond the period of three years. No case has been made out for interference into the impugned judgment of the appellate Court. Therefore, the appeal is dismissed with costs.
Is the demand notice not necessary before filling suit on ussanvar chitti
ReplyDelete