Law Web: Whether it is necessary to produce and prove books of accounts for recovery of money given on promissory note?

Coming to the last averments of the appellant that the

books of account have not been produced by the plaintiff as required

under Section 34 of the Evidence Act, I again do not find any merit in

the said contention. Firstly, the “book of accounts” as referred to in this

section means books in which merchants, traders or businessmen

generally keep their accounts i.e. statements of debits and credits or

receipts of any payments. Since there is no evidence on record that

the plaintiff was in fact indulged in the business of money lending then

obviously, the plaintiff was not required to maintain the books of

accounts and thereafter prove the same in accordance with the

requirement of Section 34 of the Evidence Act. Therefore, nonproduction

of these books, is of no consequence.

15. It is more than settled that it is not in all cases that nonproduction

of account-books by itself may be pressed into service as a

factor to disbelieve a litigant’s case and characterize his conduct as

fraudulent. Each case has to be decided on its own merits. Otherwise

also, it is normal that account-books kept in the regular course of

business of a tradesman is merely a compilation of all the details of his

dealings from day-to-day and is practically a summary of such

transactions written up in bills,vouchers, anamath chits etc. Therefore,

the account-books by themselves do not stand on any better footing

than a bill or a voucher issued by the plaintiff in the regular course of

business.

16. Here in the instant case, the plaintiff is armed with the

pronote acknowledging the liability to pay a sum of Rs.1,00,000/- by

the defendant in favour of the plaintiff and the execution of such

pronote has duly been proved on record and as a matter of fact, has

not been seriously disputed even by the defendant. Therefore, the

provisions of Section 34 of the Evidence Act, have no applicability to

the facts of the instant case.

The substantial question of law is accordingly answered.

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

R.S.A. No. 704 of 2008

Date of decision: 29. 08. 2019

Smt. Brij Bala Vs Sh. Surender Kumar

Coram

The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.

Citation: AIR 2020(NOC) 154 HP

The defendant is the appellant, who after having lost

before both the learned Courts below, has filed the instant appeal.

The parties shall be referred to as the ‘plaintiff’ and the

‘defendant’.

2. The plaintiff/respondent filed a suit for recovery of

Rs.1,00,000/- on the allegation that the defendant/appellant on

12.10.2004 had borrowed the aforesaid amount in the presence of the

witnesses in order to fulfill her necessities and financial commitment. It

was further averred that the defendant agreed to repay back the

aforesaid amount of Rs.1,00,000/- to the plaintiff and also executed a

promissory note to this effect. However, when the plaintiff demanded

the amount, the defendant refused, constraining him to issue a legal

notice to her and despite receipt of the notice, the defendant failed to

pay the amount. Hence, the suit.

3. The defendant contested the suit by filing written

statement wherein preliminary objection regarding maintainability was

raised. On merits, it was contended that the defendant had not

executed any pronote or receipt of the loan amount of Rs.1,00,000/-

and even if the pronote or receipt is produced on the record, the same

is an outcome of fraud and misrepresentation of facts.

4. From the pleadings of the parties, the learned trial Court

on 13.9.2005 framed the following issues:

1. Whether the defendant has borrowed a sum of

Rs.1,00,000/- (Rs. One Lac) from the plaintiff on

12.10.2004 and executed a pro-note and receipt? OPP

2. Whether the defendant failed to make repayment of sum

borrowed as per agreed? OPP

3. Whether the plaintiff is entitled for the recovery of

Rs.1,00,000/- (Rs. One Lac) alongwith interest at the rate

of 12% per annum from the defendant? OPP

4. Whether the suit is not legally maintainable? OPD

5. Relief.

5. After recording the evidence led by the parties and

evaluating the same, the learned trial Court decreed the suit of the

plaintiff and the appeal filed against the same was also dismissed by

the learned first Appellate Court vide its judgment and decree dated

30.8.2008, constraining the defendant to file the instant appeal.

6. On 26.10.2009, the appeal was admitted on the following

substantial question of law:

“1. Whether the findings of the learned trial Court as

well as first Appellate Court are result of complete

misreading and misinterpretation of the evidence

and material on record and against settled position

of law?”

7. I have heard learned counsel for the parties and have

gone through the material placed on record.

8. Mr. J.R. Poswal, learned counsel for the appellant has

vehemently argued that the findings recorded by the learned Courts

below are perverse inasmuch as both the learned Courts below have

not taken into consideration the following points:

(i) That the plaintiff being in the business of money

lending without licence could not have filed a suit

for recovery of the amount as the same is not

maintainable in view of the provisions of the

Himachal Pradesh Registration of Money

Lenders’ Act, 1976.

(ii) That the pro-note Ex. P-1 cannot be held to be

proved and therefore no reliance can be placed

on the pro-note as it is written in Hindi, whereas

the word ‘NIL’ has been written in English.

(iii) That the pro-note otherwise has not been

stamped in accordance with Schedule 1 of the

Indian Stamp Act.

(iv) That the Books of Accounts have not been

produced by the plaintiff under Section 34 of the

Indian Registration Act and therefore an adverse

inference was required to be drawn by the

learned Courts below and consequently, the suit

ought to have been dismissed.

9. On the other hand, Mr. Rakesh Thakur, learned counsel

appearing for the respondent would contend that no fault can be found

with the judgments and decrees passed by the learned Courts below,

more particularly, when the same are based on correct appreciation of

the pleadings as also the evidence on record. It is further contended

that since none of the questions as raised before this Court in the

second appeal was ever raised before the trial Court or before the first

Appellate Court, therefore, the same cannot be raised for the first time

before this Court in second appeal.

10. Admittedly, the questions urged before this Court have

never been raised before the trial Court or before the first Appellate

Court and cannot, therefore, be permitted to be raised for the first time

before this Court in second appeal. In taking this view, I am fortified by

the judgment passed by four Judge Bench of the Hon’ble Supreme

Court in Banarsi Dass and others vs. Kansi Ram and others, AIR

1963, SC 1165. That apart, even if all these points as raised by the

appellant are considered, even then, there is no merit in the same.

11. Adverting to the first point, it is not the pleaded case of the

defendant that the plaintiff has indulged in money lending and,

therefore, cannot recover the amount in question in view of the bar

imposed under the Himachal Pradesh Registration of Money Lenders’

Act, 1976.

12. As regards the second point regarding the pro-note being

in Hindi and the word ‘NIL’ written in English therein that by itself

cannot cast any shadow of suspicion over the said document. The

document in fact is printed one (in Devnagari) and it is only blank

spaces therein that have been filled in by the parties.

13. As regards the pro-note not being stamped in accordance

with Schedule-1, as is canvassed by learned counsel for the appellant,

the pro-note falls under Schedule 1 and has been duly stamped in

terms of entry No.49 which relates to pro-note.

14. Coming to the last averments of the appellant that the