The appeal was filed against a confirming judgment in a suit for realisation of a loan secured by mortgage. The appellate court held that the receipt executed by the plaintiff's power of attorney holder extinguished the debt. Finding the debt discharged, the court dismissed the appeal to quash the lower courts' order.
The appeal is dismissed. No order as to costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
HIGH COURT OF ORISSA: CUTTACK
S.A. No.187 of 1988
From the judgment and decree dated 23.4.88 and 6.5.88 respectively passed by Shri M.R. Behera, learned 2nd Addl. District Judge, Ganjam, Berhampur in T.M.A. No.4 of 1988 (90 of 86 GDC) confirming the judgment and decree dated 31.10.86 and 13.11.86 respectively passed by Sri J.M. Patnaik, learned Subordinate Judge, Bhanjanagar in T.M.S. No.12 of 1984.
---------Bijoy Laxmi Mohapatra ………....…… Appellant . ---versus— Lingaraj Moharatha (since dead) through L.Rs. and others ………………… Respondents For Appellant : Mr. P.K. Das, Advocate For Respondent No.3 : Mr. Swayambhu Mishra, A.S.C. For Respondent Nos.1 & 2 : None
J U D G M E N T
P R E S E N T:
THE HON’BLE DR. JUSTICE A.K. RATH
---------------------------------------------------------------------------Date of Hearing :24.04.2018 │ Date of Judgment:04.05.2018
---------------------------------------------------------------------------- Dr. A.K. Rath, J. This is plaintiff’s appeal against a confirming judgment. The suit was for realization of Rs.5430.00.
02. The case of the plaintiff was that the defendant no.1 was well known to her family. Defendant no.1 was in need of money and approached her to lend Rs.3000/- by keeping some land on mortgage. She agreed to the same. Accordingly, on 12.6.75 the defendant no.1 executed a simple mortgage deed mortgaging Ac.11.15 cents of land of village Dhaumundia and took a sum of Rs.3000/-. Defendant no.1 agreed to clear up the outstanding dues with 12% interest within a period of three years. Defendant no.1
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failed to repay the amount in spite of repeated demand. While matter stood thus, the land was acquired by the Government of Orissa under Land Acquisition Act. The compensation amount had been deposited in the Bank. With this factual scenario, she instituted the suit for realization of Rs.3000/- with interest @ 9%.
03. The defendant nos.1 and 2 filed written statement denying the assertions made in the plaint. According to them, Anantaram Mahapatra, father-in-law of the plaintiff, advanced the loan to the defendant no.1. Anantaram got the mortgage deed executed in the name of his daughter-in-law, the plaintiff, and advanced Rs.3000/- to the defendant no.1. Defendant no.1 paid an amount of Rs.3000/- towards principal and Rs.1500/- towards interest in full satisfaction of the mortgage dues to Anantaram in presence of the witnesses on 22.2.80. The latter had granted receipt acknowledging demand. It was further pleaded that the plaintiff was a money lender. She had no licence. The suit is not maintainable. Defendant no.3 was set exparte.
04. Stemming on the pleadings of the parties, learned trial court struck ten issues. Parties led evidence, oral and documentary, to substantiate their cases. Learned trial court held that the recital of Ext.A would show that on 22.6.80, the P.W.1, father-in-law of the plaintiff, had received an amount of Rs.4500/-, i.e., Rs.3000/towards principal and Rs.1500/- towards interest. The receipt was granted in full discharge of the mortgage amount. The plaintiff was not present when the loan was advanced to defendant no.1. P.W.1 had admitted that he had executed receipt, Ext.A. P.W.1 was the power of attorney holder on behalf of the plaintiff. Held so, it dismissed the suit. Unsuccessful plaintiff filed T.M.A. No.4 of 1988 before the learned 2nd Additional District Judge, Ganjam, Berhampur, which was eventually dismissed. It is apt to mention
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here that during pendency of the second appeal, the respondent no.1-defendant no.1 died. The legal heirs have been substituted.
05. The second appeal was admitted on the following substantial questions of law.
“1. The defendants having set up a plea of Benami, has the trial been vitiated by non-framing of an issue in that behalf ?
06. Heard Mr. P.K. Das, learned Advocate, on behalf of Mr. Manoj Kumar Mishra, learned Senior Advocate, for the appellant and Mr. Swayambhu Mishra, learned A.S.C. for the respondent no.3. None appeared for the respondent nos.1 and 2.
07. Mr. Das, learned Advocate for the appellant, submitted that Ext.1 cannot be construed to be the valid discharge of loan amount. There is no denial to the fact that the plaintiff advanced a loan of Rs.3000/- to the defendant no.1. No document was filed to show that the amount had been paid.
08. Per contra, Mr. Mishra, learned A.S.C. for the respondent no.3, submitted that the land was acquired by the Government of Orissa. The amount was lying in the Bank.
09. The father-in-law of the plaintiff was examined as P.W.1. P.W.1 was the power of attorney holder of the plaintiff. Plaintiff was not examined in the case. The power of attorney holder admitted that he had received the amount and granted receipt. Both the courts concurrently held that the loan amount had been paid, whereafter receipt vide Ext.A was granted. There is no perversity in the said finding. The substantial question of law enumerated in ground no.2 has been answered in affirmative. In view of the
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answer to the substantial question of law enumerated in ground no.2 in affirmative, the substantial question of law enumerated in ground no.1 does not arise for consideration.
10. A priori, the appeal fails and is dismissed. There shall be no order as to costs.
Orissa High Court, Cuttack
The 4th May, 2018/Basanta
2 issues framed by the court
Whether the receipt marked Ext.A constitutes a valid discharge of the mortgage dues by the defendants?
Whether the non-framing of an issue on the plea of benami vitiated the trial?
Bijoy Laxmi Mohapatra
Lingaraj Moharatha [L.Rs.]
A.K. Rath
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
