Second appeal under Section 100 CPC dismissed. The High Court held that the appeal involved only questions of fact and disposition of evidence. No substantial question of law arose, rendering the impugned judgment maintainable.
The Second Appeal is dismissed in limine with no costs awarded.
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.
THE HON’BLE Dr . JUSTI CE SHAMEEM AKTHER
SECOND APPEAL No.2 0 of 2 0 2 0
JUDGMENT:
This Second Appeal, under Section 100 of the Code of Civil Procedure, 1908, is filed by the appellant/ defendant, challenging the judgment and decree, dated 28.06.2019, passed in A.S.No.6 of 2016, by the II Additional District Judge, Nalgonda at Suryapet, whereby, the judgment and decree, dated 18.01.2016, passed in O.S.No.120 of 2011 by the Junior Civil Judge at Kodad, dismissing the suit filed by the respondent herein/ plaintiff, was set aside and the subject suit in O.S.No.120 of 2011 was decreed with costs directing the appellant herein/ defendant to pay Rs.86,209/ - to the respondent/ plaintiff with interest @ 24% per annum on Rs.55,000/ - from the date of the suit till the date of decree and further interest @ 6% on Rs.55,000/ - from the date of decree till the date of realisation.
2 . Heard the learned counsel for the appellant/ defendant and perused the record.
3 . The appellant herein is the defendant and the respondent herein is the plaintiff before the trial Court. As per the record, the trial Court, though held that the subject Promissory Note under Ex.A.1 is true, valid and binding on the defendant and that the plaintiff is entitled to recover the suit amount as prayed for, dismissed the suit on the ground that the plaintiff is a professional money lender without having money lending licence.
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The parties are hereinafter referred to as per their array before the trial Court.
4 . The plaintiff filed a suit for recovery of amount of Rs.86,209/ - on the basis of a promissory note, dated 10.07.2009, against the defendant, contending that the defendant borrowed an amount of Rs.55,000/ - from him on 10.07.2009 under Ex.A.1 promissory note, dated 10.07.2009, for his agricultural necessities, agreeing to repay the same with interest @ 24% per annum. Subsequently, in spite of repeated requests, the defendant failed to pay the due amount by dodging the matter on false pretexts. The plaintiff, after issuing a legal notice, dated 20.08.2011, to the defendant, filed the suit for recovery of said money from the defendant.
5 . The defendant filed written statement denying the money transaction under the suit promissory note, dated 10.07.2009. He further contended that the plaintiff is doing paddy business as well as money lending business without licence. The plaintiff and the defendant are having business transactions. Several times, the plaintiff purchased paddy from the defendant and several times, the defendant also borrowed amount from the plaintiff. The plaintiff is doing money lending business without licence. Hence, the suit is liable to be dismissed.
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7 . On behalf of the plaintiff, the plaintiff himself was examined as P.W.1 besides examining P.W.2 and Exs.A.1 to A.4 were marked. On behalf of the defendant, the defendant himself was examined as D.W.1 besides examining D.W.2 to D.W.8 and Exs.B.1 to B.35 were marked.
8 . On merits, the trial Court dismissed the suit with costs holding that though issues (a) and (b) are answered in favour of the plaintiff, but in view of the findings arrived in respect of additional issue (d), the suit of the plaintiff is not maintainable in clear terms of Money Lenders Act and therefore, the suit is liable to be dismissed.
9 . Aggrieved by the said decision of the trial Court, the plaintiff preferred appeal in A.S.No.6 of 2016 before the first appellate Court. The first appellate Court, after re-appreciating the entire evidence on record, reversed the judgment and decree of the trial Court and decreed the subject suit as prayed for. Aggrieved by the same, the defendant preferred this Second Appeal.
1 0 . The Second Appeal is sought to be admitted on the following substantial questions of law:
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1 1 . There cannot be any dispute that, under the amended Section 100 of C.P.C., a party aggrieved by the decree passed by the first appellate Court has no absolute right of appeal. He can neither challenge the decree on a question of fact or on a question of law. The second appeal lies only where the High Court is satisfied that the case involves a substantial question of law. The word ‘substantial’ as qualifying ‘question of law’, means and conveys of having substance, essential, real, of sound worth, important, considerable, fairly arguable. A substantial question of law should directly and substantially
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affect the rights of the parties. A question of law can be said to be substantial between the parties, if the decision in appeal turns one way or the other on the particular view of law. But, if the question does not affect the decision, it cannot be said to be substantial question between the parties. Recording a finding without any evidence on record; disregard or non-consideration of relevant or admissible evidence; taking into consideration irrelevant or inadmissible evidence; perverse finding – are some of the questions, which involve substantial questions of law.
1 2 . The learned counsel for the appellant/ defendant would contend that there are number of documents which were not taken into consideration by the first appellate Court. No suit amount is due to the plaintiff by the defendant under Ex.A.1 Promissory Note, dated 10.07.2009. The Court below committed error in not appreciating the documentary evidence led by the defendant under Exs.B.1 to B.35, wherein, signatures of the defendant are found. The findings recorded by the Court below are perverse. There is ample evidence of D.W.1 to D.W.8 to demonstrate that no suit amount is due to the plaintiff by the defendant and ultimately prayed to allow the Second Appeal by setting aside the judgment and decree under challenge and restore the judgment and decree passed by the trial Court.
1 3 . The material placed on record reveals that the original suit is filed by the plaintiff for recovery of an amount of Rs.86,209/ - from the defendant, basing on Ex.A.1 promissory note, dated 10.07.2009. The oral evidence adduced on behalf of the
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respondent/ plaintiff, i.e., P.W.1 and P.W.2 and the documentary evidence under Ex.A.1 promissory note, dated 10.07.2009, reveals that the defendant borrowed an amount of Rs.55,000/ - from the plaintiff for his agricultural necessities agreeing to repay the same with interest @ 24% per annum. Ex.A.2 is the office copy of legal notice, dated 20.08.2011, got issued by the plaintiff to the defendant demanding him to repay the money due. Ex.A.3-Postal receipt, dated 20.08.2011, and Ex.A.4-Postal acknowledgement card, dated 24.08.2011, demonstrates the service of Ex.A.2 legal notice on the defendant. The defendant did not choose to give reply to the said legal notice. Exs.B.1 to B.16 are the signatures of the appellant/ defendant on promissory notes. Ex.B.20 to Ex.B.26 are the returned promissory notes, which contain the signature of the defendant, as executant. Ex.B.17 to Ex.B.19 and Ex.B.27 to Ex.B.32 are the returned promissory notes, which contain the signatures of the defendant as attestor. None of these documents were filed along with the written statement and they were filed after nine months of filing of the written statement. In the impugned judgment, the Court below observed that if really there are promissory note transactions between the plaintiff and the defendant under Exs.B.21 to B.26 and if really the defendant has discharged those amounts, those details would have been mentioned by the defendant in the written statement and that filing of those documents after nine months of filing of written statement creates suspicion about those documents. The Court below further observed that in the written statement, there is no
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whisper about the names of the persons who borrowed the amount from the plaintiff and that none of those promissory notes contain either the signatures or the handwritings of the plaintiff to show that those promissory notes have nexus with the plaintiff and that for the reasons known to the defendant, he did not venture to examine any of the borrowers under the promissory notes and that it is the duty of the defendant to show that the plaintiff is doing money lending business and that the evidence adduced by the defendant is not sufficient to show that the plaintiff is doing money lending business and that non explanation of delay in filing Exs.B.27 to B.32 along with the written statement creates suspicion about the case of the defendant and that the trial Court ought to have considered these aspects and ought to have decreed the suit instead of dismissing the same on the ground that the plaintiff is doing money lending business without licence.
1 4 . A plain reading of the questions sought to be raised in this appeal as substantial questions of law are pure questions of fact, which cannot be dealt with in this appeal filed under Section 100 of C.P.C. Where the lower appellate court had exercised its discretion in a judicial manner, it cannot be termed to be an error, either of law or of procedure, requiring interference in a Second Appeal. The findings of the lower appellate Court are not perverse. There is nothing to take a different view. The lower appellate Court has neither overlooked the admissible evidence nor acted upon inadmissible evidence. After careful examination
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of the pleadings, evidence and the contentions, this Court finds that no question of law, much less substantial question of law, is involved in this Second Appeal. The appeal is devoid of merit and is liable to be dismissed.
1 5 . In the result, the Second Appeal is dismissed in limine . No costs.
Miscellaneous Petitions, if any, pending in this Second Appeal, shall stand closed.
____________________
Dr . SHAMEEM AKTHER, J
22 nd January, 2020
Bvv
3 issues framed by the court
Whether the findings of the first appellate Court regarding the promissory notes are perverse and liable to be set aside?
Whether the appeal can be allowed on questions of fact in the absence of a substantial question of law?
Whether the suit maintainability regarding money lending without licence involves a substantial question of law?
1 provisions across 1 enactments
Defendant
Plaintiff
Dr. Shameem Akther
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
