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Rabiram Bhoi Vs. Harish Chandra Joshi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 148 of 1971
Judge
Reported inAIR1973Ori84
ActsContract Act, 1872 - Sections 73
AppellantRabiram Bhoi
RespondentHarish Chandra Joshi
Advocates:S.C. Mohapatra and ;U.S. Misra, Advs.
Excerpt:
..... maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no..........is the petitioner. the plaintiff-opposite party has not entered appearance in spite of notice.2. paddy and money in cash had been borrowed under ext. 1 dated 31-7-1965. some payment was made tinder ext. a dated 17-4-1968. as the defendant omitted to pay the balance in spite of demand, the suit was instituted.3. the defence raised in the suit was that paddy to the extent indicated in ext. 1, the promissory note had not been taken and there had been a full payment of the paddy that was actually taken. the plaintiff was a money-lender in usual course of business and having not obtained registration, the suit was not maintainable under section 8 of the orissa money-lenders act.4. the learned appellate judge has found that the plaintiff is not a money-lender. he has also found the.....
Judgment:
ORDER

R.N. Misra, J.

1. The defendant in a money suit is the petitioner. The plaintiff-opposite party has not entered appearance in spite of notice.

2. Paddy and money in cash had been borrowed under Ext. 1 dated 31-7-1965. Some payment was made tinder Ext. A dated 17-4-1968. As the defendant omitted to pay the balance in spite of demand, the suit was instituted.

3. The defence raised in the suit was that paddy to the extent indicated in Ext. 1, the promissory note had not been taken and there had been a full payment of the paddy that was actually taken. The plaintiff was a money-lender in usual course of business and having not obtained registration, the suit was not maintainable under Section 8 of the Orissa Money-lenders Act.

4. The learned appellate judge has found that the plaintiff is not a money-lender. He has also found the promissory note to be genuine and has given a decree in favour of the plaintiff, having made slight alteration in the matter of the rate of interest.

5. Mr. Mohapatra for the defendant-petitioner raises two short contentions. He contends that under the promissory note, there is a clear stipulation that as and when the creditor demands repayment of the paddy and cash loan, the same would be returned as such without any addition of interest. The Courts below have not recorded a finding that there had been any demand on any particular day and there has been default on the basis whereof any interest on general principle of law may be payable. In terms of the contract contained in the promissory note, the plaintiff is entitled to recovery of the principal only. In view of a term in the promissory note excluding payability of interest, interest cannot be demanded unless any special basis for claiming interest is proved. This contention of Mr. Mohapatra is bound to succeed. I would accordingly hold that the plaintiff was not entitled to claim and obtain a decree for interest.

6. His next contention is that the repayment which has been found to be under Ext. A is towards interest and principal. Since interest is not found payable under the loan, the entire repayment in Ext. A. must be taken to be towards the principal. In view of my finding about payability of interest, this contention of Mr. Mohapatra is also to succeed. The repayment under Ext. A must be taken into account towards the liability under Ext. 1 as such without interest being taken into account.

7. Mr. Mohapatra's next contention that the finding regarding non-liability for registration under the Orissa Money-Lenders Act cannot be sustained. I must confess that it is a finding within the domain of the lower appellate Court and in an application under Section 115 of the Code of Civil Procedure, I am not entitled to reappreciate the evidence and reach a different conclusion. Therefore, such a contention is not open to be entertained in revision application. The revision succeeds in part. The plaintiff's suit is decreed to the extent indicated above with proportionate cost. The learned trial judge is called upon to modify his decree accordingly. There would be no costs in the revision.


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