Haribansa Misra and Others vs Banshidhar Mohanty

R.N. Misra, J.—Defendants in a suit for recovery of money on the basis of a promissory note have carried this appeal against the judgment and decree of the learned 3rd. Additional Subordinate Judge of Cuttack decreeing the suit.

Plaintiff filed the suit on 18.1.1963 for recovery of a sum of Rs. 21.5201- on the allegation that Defendant No. 1 had taken several loans on different dates upto 15-2-1954 from him and on settlement of accounts executed a promissory note in his favour for a sum of Rs. 12,000/- after getting some remission. Defendant No. 1 promised to pay back the loan on demand with interest at the rate of nine per cent per annum. Defendant paid a sum of Rs, 100/- on 21-1-1957 and a similar Rum on 19-1-1960 and the repayments were duly endorsed on the back of the promissory note. Plaintiff alleged that he was a registered money-lender and he sued for recovery of the principal along with interest after giving credit for the payment of Rs. 200/- in the manner indicated above.

Defendant No. 1 in his written statement pleaded that the suit was barred by limitation and it was also hit by the provisions of the Orissa Money-lenders Act and the Rules framed thereunder. While he admitted the execution of the promissory note, he maintained that there was no consideration for the document. Defendant No. 1 was in service of the Provincial Government and resigned tram the said post on 19-3-1947. He became involved in various business transactions with the Plaintiff and both the parties were maintaining accounts of their respective dealings in usual course of business. Defendant No. 1''s brother got involved in many litigations arising out of the business of the Central Pioneer Bank Ltd. In which the Plaintiff and the said brother of Defendant No. 1 were concerned. Plaintiff used to advance money to the Defendant No. 1''s brother, but the same was being taken Into the account of Defendant No. 1. Defendant No. 1 had also been made to pay for several purchased on account of the Plaintiff and payments made by way or adjustment were shown as advances to Defendant No. 1. Defendant No. 1 approached the Plaintiff for settlement of the mutual accounts, but Plaintiff deferred the matter of settlement and insisted upon a promissory note being taken. A copy of the accounts were supplied to Defendant No. 1 sometime in 1963 - Ext. K - with reference to which it would appear that several amounts which could not have been entered into the account had been so done to inflate the liability of Defendant No. 1. It is further pleaded that Defendant No. 1''s brother filed Title Suit No. 15 of 1955 in the Court of the Subordinate Judge at Sambalpur for partition. Plaintiff had also filed a money suit against Defendant No. 1 and his brother being Money Suit No. 145 of 1954 in the Court of the Subordinate Judge of Cuttack. For the purposes of the said litigation at the instance of the Plaintiff, Defendant No. 1 had been made to part with the promissory note in question. Defendant No. 1 subsequently amended his written statement and asked for re-accounting.

Defendants 2 to 5 and the minor Defendant No. 6 have filed separate written statements contending that the loan was not for family necessity and as such the joint family had no liability for the same.

Nine Issues were struck and both sides led both oral and documentary evidence. It may be stated that Defendant No. 1 was examined by a Commissioners on the ground that he was too ill to appear in Court. The learned Subordinate Judge on the basis of the evidence - oral and documentary - came to record the following findings:

(i) The promissory note (Ext. 1) executed by Defendant No. 1 full consideration;

(ii) Defendant No. 1 was not entitled to any sum as claimed by him;

(iii) Defendants 2 to 6 were jointly and severally liable along with Defendant No. 1 for satisfying the loan;

(iv) The suit was not hit by the provisions of the Orissa Money-Lenders Act and the Rules made thereunder; and on the basis of these findings, the learned Trial Judge gave a decree to the Plaintiff. The Defendants have, therefore, carried this appeal.

At the hearing, Mr. Patnaik for the Appellant='' advanced the following contentions:

(i) Bulk of the documents upon which Plaintiffs has relied to make out his case were produced in the Court after Defendant No. 1 had completed his evidence. No cause for the delay in production was shown and no reasoned order was made by the learned Trial Judge for condoning the delay was duly and validly and was supported by Defendants have been prejudiced on account of being deprived of meeting these documents at the trial ;

(ii) Some of the documents upon which reliance has been placed by the trial Court were even received after the arguments were heard and marked as

exhibits without proof;

(iii) The learned Trial Judge has gone wrong in holding that the claim in the litigation is not barred by limitation. The payment (Ext. 1/b) upon which reliance has been placed is not a genuine one, inasmuch as it does not fit in with the entry in Ext. K ;

(iv) In view of Plaintiff''s admission that some of the amounts entered in Ext. K were moneys advanced to Defendant No. 1 for the benefit of the Plaintiff, the promissory note (Ext. 1) drawn up for the amount as per the account therein could not be said to be for consideration.

Several other contentions were advanced, but in view of the nature of the direction we propose to give in this appeal and the fact that we are not going to dispose of the appeal finally at this stage, we do not think it is necessary to examine them.

In view of the defence plea admitting execution of the promissory note, the trial Court had called upon the Defendants to be in evidence first at the trial. As already noted Defendant No. 1 was examined on commission and defence evidence was closed by 13-9-1967. On 14-9-1967, Plaintiff''s examination as P.W. 1 began. As would appear from the list of documents at page 401 of the C-l file, Plaintiff''s advocate filed eighteen documents that day without any explanation as to why the documents were filed so belatedly: Admittedly by then the defence evidence had already been recorded. Undoubtedly some of these documents have been relied upon by the learned Trial Judge in decreeing the suit. Though these documents were got proved by the Plaintiff, there is indeed no order answering the requirements of the legal provisions for belated receipt of these documents.

Arguments were finally heard on 23-9-1967 and judgment was fixed to be delivered on 29-9-1967. On 25-9-190, two separate orders were made by the trial Court to the following effect:

25-9-l967. The Plaintiff files documents (money-lending-register) and prays to admit the documents. Heard and marked Ext., 84. 173. 25-9-1967. It appears that documents marked exhibits have not been written in order-sheets. It is written today. Exts. 1 to 16 have been marked by the Pleader Commissioner and Ext. 13 to Ext. 84 marked by me. Documents marked by the Pleader Commissioner are tendered and accepted. Exts. A to W(8) marked by the Commissioner and accepted. Exts. A-3 to A(7) are marked in Court.

Admittedly the money-lending register is a private document and required proof. The said document has, however, been accepted without proof. There is no material on record to show that on 25-9-1967, Defendants were present in Court and the order had been made in their presence. It is appropriate to assume that when on 23-9-1967 the case was adjourned to 29-9-1967 for judgment, there would be no occasion for the Defendants to be present in Court during the intervening period. There is no application forthcoming from the record dated 25-9-1967 to justify the first order-sheet of that day that there is a prayer to admit the documents. From the C-1 filed which has been called for at the request of parties, there is no indication of any document to have been filed in the formal way. Mr. Mohanty for the Plaintiff-Respondent is not able to justify the receipt of Ext. 84 into the evidence. We, therefore, called upon him to give his written consent in the form a memorandum that he was prepared to exclude Ext. 84 from the record and proceed on the remaining evidence. He, however, did not agree to do so and on the other hand asked us to go through the judgment and be satisfied that there was enough material for supporting the judgment.

The second order of 25-9-1967 appears to have been similarly made without the assistance of the parties. Though the learned Trial Judge recorded that order, he failed to give effect to it and as a result the exhibited documents do, not tally with what has been directed to be done under order No. 173. Exhibited documents go upto Ext. 87 on the side of the Plaintiff, whereas as per the order under serial No. 172, the last document is Ext. 84. Serious infirmity has been introduced into the record by the learned Trial Judge on account of a care-free handling of the record by him. If what was done under Order No. 173 had been done in presence of parties, such a confusion could not have come to prevail so far as the record of the case is concerned.

That bulk of the Plaintiff''s documents came after the defence was over is apparently true. Order 13, Rule 1 and 2 of the CPC provide for filing of documents. These provisions as amended by this Court are to the following effect:

Rule 1. (1) The parties or their pleaders shall produce, at the first hearing of the "suit, or, where issues are framed on the day when issues are framed, or within such further time; as the Court may permit, all the documentary evidence of every description in their possession or power, on which they intend to rely, and which has not already been filed in Court, and all documents which the Court has ordered to be produced.

(2) The Court shall receive the documents so produced :

Provided that they are accompanied by an accurate list thereof prepared in such form as the High Court directs. Rule 2. No documentary evidence in the possession or power of any party which should have been but has not been produced in accordance with the requirements of Rule 1 shall be received at any subsequent stage of the proceedings unless good cause is shown to the satisfaction of the Court for the non-production thereof; and the Court receiving any such evidence shall record the reasons for so doing.

Notwithstanding the mandate indicated in Rule 2, Plaintiff''s documents were filed very belatedly and without any apparent excuse. At any rate, no reason has been given by the trial Court for admitting the same into evidence. Added to these features is the fact that defence commenced first and before the documents became a part of the record, Defendants had dosed their evidence. There is thus scope for the contention that the Defendants have been prejudiced in the trial. Mr. Mohanty for the Plaintiff-Respondent contended that we should require the Defendants to establish prejudice. We do not think, in the facts of the case actual proof of prejudice is necessary. The infraction is such that prejudice is bound to result. It is difficult at this stage to require the Defendants to make a demonstration of the prejudice caused to them in their appropriate defence.

Admittedly, Ext K. which is said to be a copy of the accounts maintained by the Plaintiff does not contain the payments under Ext. 1/b. True, that an explanation has been furnished for non-appearance of the amount of Rs. 100/- in Ext. K, but since the bar of limitation of the suit hinges upon this payment, the learned Trial Judge should have examined the matter with greater care. As we are proposing to remit the matter for a re-consideration, we do not think it appropriate to express any final view on this aspect of the matter.

Plaintiff has been examined as P.W. 1. In cross examination, Plaintiffs has admitted:

I do not remember if I was an accused in puri Court in any criminal case for said bank of Basudev. The expenditure incurred in Puri and Calcutta criminal cases have not been included in the suit loan. I do not remember if I stated in the said suit that ''the expenses incurred by D-l at Calcutta and Puri cases are included in the amount of Rs. 12,000/-.

It may be noted that Ext. A is the deposition of the Plaintiff in Title Suit No. 15 of 1955 and Plaintiff as d. w. 3 for the present Defendant No. 1 had stated:

...I he expenses incurred by the Defendant No. 1 at Calcutta and Puri cases are included in this amount of Rs. 12,000/-....

The Plaintiff had further admitted:

...There are detailed accounts for Rs. 12,000/- which I have kept with me...

In view of this statement of the Plaintiff which he avoids now, it is contended that the entire suit could not have been decreed and the learned Trial Judge should have come to hold that Ext. 1 had not been proved to be for good consideration for the entire amount. Even if the inference u/s 118 of the. Negotiable Instruments Act was to be drawn, the admission countered it, Mr. Mohanty for the Plaintiff seriously contended that since the Defendants had not pleaded a case of this type, they should not be permitted to take advantage of the admission of the Plaintiff. We called upon Mr. Mohanty to support his stand by authorities and we found that the authorities were to the contrary. 1 here can be no justification in law for the position that even if a party admitted that the truth was one way, merely because the pleading had not been raised to admit the admission into the record, the admission should be kept away and even if it was unjust on the technical rule of pleadings, an admission of the adversary should be omitted from consideration. The reason for not admitting a material not included in the pleading is on account of prejudice. When the admission of the adversary is asked to be utilised, there is no scope for prejudice and, therefore, we are satisfied that there is no ground for the objection raised by Mr. Mohanty. Here again, we make it clear that we express no final opinion because the matter is being remitted to the trial Court for a fresh disposal. We have mentioned the fact only for justifying the remand.

We are alive to the position that the promissory note is one of 1954. The suit came in 1963 and the litigation has been continuing for fifteen years. In fact, at one stage, we were very slow for interfering in the matter and were clearly against remand. But we are satisfied that the justification for the remand is on account of Plaintiff''s conduct in the litigation and he cannot, therefore, make grievance of prejudice. Again, we called upon counsel for the Plaintiff to agree to the omission of the documents which had been received in evidence without proof, but he too was not prepared to do so. Vole are equally satisfied that the cause of justice cannot be properly met if the objections raised on behalf of the Defendants be not considered in the appropriate forum.

We would accordingly allow the appeal, set aside the judgment and decree of the trial Court and remit the matter for a fresh disposal. The learned District Judge is directed to have this suit placed for trial before an appropriate Court where the trial can be expedited. No new document shall be permitted to be filed on the side of the Plaintiff, but he will be permitted to prove in accordance with law any document already before the Court: The Defendants shall be permitted to depose about the documents which had been received after the defence was over or any further document which the Plaintiff may now prove as indicated above and Plaintiff has the right of cross-examination. If Defendants seek to adduce any evidence to meet any at the documents exhibited on the Plaintiff''s side, the same shall also be permitted. The trial Court is directed to appropriately mark all the documents exhibited for the parties and after hearing both sides dispose of the suit by end of July, 1978. He shall regulate his proceeding in such a way that there would be compliance of the direction and yet, the cause of justice would not be hampered. A report of compliance be made to this Court in due course. Costs shall abide the event.

K.B. Panda, J.

I agree.

Appeal allowed.