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Parkash Chand Anand Vs. Dhanwant Singh - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtHimachal Pradesh High Court
Decided On
Case NumberSecond Appeal No. 374 of 1967
Judge
Reported inAIR1972HP17
ActsCode of Civil Procedure (CPC) , 1908 - Section 107 - Order 41, Rule 23
AppellantParkash Chand Anand
RespondentDhanwant Singh
Appellant Advocate P.M. Nag, Adv.
Respondent Advocate S. Malhotra, Adv.
DispositionAppeal dismissed
Excerpt:
- .....the entry to that effect was made in the 'bahi khata' of the plaintiff. subsequently the defendant paid rupees 120/- on 22-3-1961 and accordingly the entry was made in the 'bahi khata'. this was a payment of interest that accrued upon the debt. thereafter, the defendant paid rupees 2,000/-on 6-11-1962 and the entry to that effect was again made in the 'bahi khata'. the plaintiff appropriated rupees 600/-towards interest and the remaining rupees 1,400/- were accounted for the payment of principal amount. in this manner. rupees 1,600/- remained to be paid for the principal. besides this, the plaintiff claimed rupees 96/- for interest and rupee 1/- for notice which he served upon, the defendant. in this manner a decree for rupees 1,697/- was claimed against the defendant.3. the defendant.....
Judgment:

D.B. Lal, J.

1. This second appeal has been directed against the judgment and decree dated 6th September, 1967 of Shri B. D. Sharma. District Judge. Mandi.

2. The plaintiff Dhanwant Singh came to Court with the allegations, that the defendant Parkash Chand Anand had borrowed Rupees 3,000/- from him on 25th of November. 1960 and the entry to that effect was made in the 'Bahi Khata' of the plaintiff. Subsequently the defendant paid Rupees 120/- on 22-3-1961 and accordingly the entry was made in the 'Bahi Khata'. This was a payment of interest that accrued upon the debt. Thereafter, the defendant paid Rupees 2,000/-on 6-11-1962 and the entry to that effect was again made in the 'Bahi Khata'. The plaintiff appropriated Rupees 600/-towards interest and the remaining Rupees 1,400/- were accounted for the payment of principal amount. In this manner. Rupees 1,600/- remained to be paid for the principal. Besides this, the plaintiff claimed Rupees 96/- for interest and Rupee 1/- for notice which he served upon, the defendant. In this manner a decree for Rupees 1,697/- was claimed against the defendant.

3. The defendant resisted the claim on the ground that he had paid Rupees 3,000/- on 21-8-1961 through a bank draft which, under instructions of the plaintiff, was sent to Panna Lal Hira Lal. Commission Agents of the plaintiff. In this manner the entire debt was paid. No interest was stipulated and hence nothing can be found due from the defendant. In respect of Rupees 2,000/-paid by the defendant on 6-11-1962- it was alleged in the written statement that this was a debt borrowed by the plaintiff from the defendant and he would recover that debt under due process of law. The learned trial Judge framed the following issues:--

'(i) Whether the defendant has paid the amount sued for as per bank draft?

(ii) Whether the plaintiff is entitled to the amount sued for with interest. If so, at what rate?

(iii) Relief.'

4. The learned trial Judge gave the findings, that the sum of Rupees 3,000/-was really Paid in discharge of the debt in suit. He, therefore, dismissed the claim of the plaintiff. The first appellate Judge, however decreed the suit, holding that the amount of Rupees 3,000/- was paid in relation to a certain partnership business which the parties were undertaking during that period. He found that no amount could be recovered for interest. In this manner, the two sums of Rupees 120/- and Rupees 2,000/- were deducted from the principal. In the result, the decree was passed for Rupees 880/- in favour of the plaintiff.

5. The defendant has felt aggrieved of the decision of the learned District Judge and has come up in this second appeal.

6. The learned counsel for the appellant contended that a question of law was involved in the case. According to him, the burden of proof was wrongly placed upon the defendant and it was for the plaintiff to show under Section 60 of the Indian Contract Act. 1872 as to the manner in which he appropriated the payment of Rupees 3,000/-. Where the parties went to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in refutation of those of the other side, it cannot be said that either the absence of an issue or any inaccuracy which could be detected in the issue already framed, was fatal to the case, or that there was that mistrial which vitiates proceedings. A suit cannot be dismissed on this narrow ground, and also there is no need for a remit as the evidence which has been led in the case is sufficient to reach the right conclusion.

7. The initial burden of payment was upon the defendant. His case was that he had neither any partnership business with the plaintiff nor any mutual dealings with him. That being the position, according to the defendant, it is not a case of several debts owed by him to the plaintiff. Therefore, no question, in fact, arises for the plaintiff to have appropriated the payment towards any particular debt. In fact such a plea is not at all open to the defendant. Apart from this, there are circumstances to indicate that the plaintiff and the defendant had partnership dealings. They had taken mutually, contracts for the construction of several buildings. Letters were exchanged between them and such letters have been filed (Exs. DW. 1/C. DW. 1/D. DW. 1/E DW. 1/F). All these documents indicated that the plaintiff was demanding money from the defendant in respect of these building contracts. In his own statement, the plaintiff Dhanwant Lal (P. W. 1) stated rather clearly that Rupees 3,000/-were received in respect of such building contracts. Exhibit P. 3 is a letter which the defendant sent to the plaintiff that he would be sending the amount in respect of the building contract. Thereafter Rupees 3,000/- were sent in entirely a separate account which the plaintiff had with the defendant. There was no another outstanding debt so that any appropriation was required. The plaintiffs witnesses Chaitu Ram (P. W. 3) and Amrit Lal (P. W. 4) also stated about this contract business.

The defendant Parkash Chand D. W. 1 on the other hand merely stated that he had some partnership with Gurbaksh Singh but could not tell that the plaintiff was a partner of Gurbaksh Singh. It is evident that Rupees 120/- were paid by the defendant on 22-3-1961. If there was no stipulation for interest and a part of the principal debt was thus paid, where was the occasion to send Rs. 3,000/- on 21-8-1961 towards the payment of the disputed debt. The very payment of Rupees 120/- by the defendant militates against the version of the payment of Rupees 3,000/- towards the debt in dispute. The defendant did not file any account to disclose that Rupees 3,000/-were really paid towards the disputed debt. In respect of the payment of Rupees 2,000/-, the defendant submitted that it was a separate debt which still stands and could be recovered under due process of law. The strange feature is that the defendant has not yet taken any case to recover such debt if it is really outstanding. In fact, he never replied the notice that was sent by the plaintiff to him for payment of the disputed debt. In the circumstances, if the plaintiff had any burden to discharge, he amply discharged that and proved his case.

8. As observed before, the parties were fully conversant of their respective case. They led evidence and a correct decision could be arrived at upon such evidence. As such there is no necessity for remitting the case, as no fresh trial is needed.

9. The result is that I do not find any ground to interfere with the decision of the learned District Judge, The appeal is thus, dismissed with costs.


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