Neelu Nagamma vs Usharamani

K. Surendra Mohan, J.—This is an appeal filed by the plaintiffs in O.S. No. 369 of 1993 on the file of the Court of the Sub Judge, Neyyattinkara. The suit was originally filed by one Parameswaran Pillai for return of gold ornaments pledged by him with the defendants. During the course of trial, he died and his wife and children have been brought on party array as his legal representatives. After trial, the suit has been decreed only against the first defendant. Therefore, this appeal has been filed challenging the dismissal of the suit against the second and third defendants, who are the respondents in this appeal. As per order in CMP No. 6215 of 1999, the first defendant, who was not a party to the appeal, has got himself impleaded as the additional third respondent, but at the time of final hearing of the appeal, there is no representation on his behalf.

I have heard the learned Counsel for the appellants and the other respondents.

According to the appellants/plaintiffs, on 28.3.1990, a gold chain weighing 23 grams was pledged by late Parameswaran Pillai with the defendants and an amount of Rs. 3,000/- was borrowed. Subsequently, on 4.8.1990, another gold chain weighing 15.5 grams was pledged for an amount of Rs. 2,500/-. Later, on 6.3.1991, two bangles and one gold ring, weighing 16 grams were pledged and an amount of Rs. 3,000/- was borrowed. The defendants are alleged to have been conducting money lending business in the name and style "V.R. Finance", Kunnathukal and "U.R.Finance", Udiyankulangara. Thus, the original plaintiff, late Parameswaran Pillai had obtained a total loan of Rs. 8,500/- on the security of 54.5 grams of gold ornaments. On 5.5.1991, though he had gone to the financial institution for paying off the loan and for redeeming the gold ornaments, the concern was seen locked. Therefore, he went to the house of the defendants, "Ushas", on 20.5.1991. But the defendants were not seen in the house. Thereafter he approached the defendants several times and requested them to receive the loan amount and to return his gold ornaments. But, they did not do so. Later, he issued a notice through his advocate on 24.8.1992 and 18.9.1992 demanding return of the pledged gold ornaments. The first defendant did not accept the notice. The second defendant, who is the wife of the first defendant, caused the issue of a reply disowning her liability. The third defendant sent a reply stating that he was only an employee of the institution and he was therefore not liable for return of the ornaments. The suit was filed in the above circumstances. According to the plaintiffs, they were not liable to pay interest from 5.5.1991. They prayed for return of the gold ornaments or for recovery of the value of the gold ornaments excluding the loan amount and the interest payable to the defendants with future interest and costs.

The first defendant, who is the additional third respondent herein, remained ex-parte. Defendants 2 and 3 filed separate written statements. According to them, the suit was filed only to harass them. The second defendant was not conducting any money lending business as alleged in the plaint. She claimed that she was a house wife and has no job or business. She had no knowledge about the pledging of the gold ornaments by the plaintiffs. She was not a party to any loan transaction or pledging of any gold ornaments as contended in the plaint. She denied that she was approached by the plaintiffs on 25.5.1991 or on any other date claiming return of the gold ornaments. She had caused the issue of a reply to the advocate''s notice received by her intimating the actual facts. Therefore, she prayed for dismissal of the suit.

In a separate written statement, the third defendant contended that he had never conducted any financial institution as alleged in the plaint. The first defendant was conducting "V.R. Finance" and the third defendant was an employee of the institution. He used to verify the gold ornaments and to help the first defendant in conducting the business. According to him, he had not received any gold ornaments on pledge, nor has he paid any amount as loan to the plaintiff. According to him, though the business was initially conducted in a room taken on rent from Arjuna Panicker, the same was later shifted to "Ushas", the house of the first defendant. Slowly, the business was stopped and the third defendant''s employment was also terminated. According to him, notices had been issued to the owners of gold ornaments to pay the loan amount and to get their pledged articles returned. The first plaintiff was aware of all the above facts. In August 1991, the first defendant absconded. On receipt of notice issued on behalf of the first plaintiff, the third defendant had caused the issue of a reply notice stating the true facts. He contended that he was not a necessary party to the suit and prayed for dismissal of the suit with costs.

The court below tried the suit on the above pleadings. The evidence in the case consists of the oral testimonies of PWs. 1 to 3 and DW1 and Exts.A1 to A6 series and B1 and B2 documents. The court framed two issues and considered the rival contentions as well as the evidence on record. On an analysis of the pleadings and evidence, the court below found that there was no evidence to show that the second and third defendants were in any way involved in the conduct of the money lending business of the first defendant. In the absence of any material or evidence to establish their complicity in the conduct of the money lending business, it has been held that they could not be fastened with the liability to return the pledged articles or to pay the value thereof. Therefore, the suit has been decreed against the first defendant alone. If the first defendant fails to produce the gold ornaments within three months as directed, the plaintiffs are allowed to recover and realise an amount of Rs. 16,870/- being the value of the gold ornaments, excluding the loan amount payable to the first defendant.

This appeal is filed by the appellants/plaintiffs contending that excluding the second defendant/first respondent from liability ignoring the fact that she was none other than the wife of the first defendant is unsustainable. According to the counsel for the appellants, the oral evidence of PWs. 1 to 3, particularly, PW2 who is a neighbour of the shop room from which the money lending business was being conducted have not been considered or appreciated in the proper perspective by the court below. According to the counsel for the appellants, the oral evidence clearly establish the direct involvement of the first respondent wife also in the conduct of the money lending business. It is alleged that the first defendant is working in some Gulf Countries and that the wife was pleading ignorance about his business and whereabouts only to cheat the appellants. Therefore, they pray for a decree against both defendants 1 and 2.

The point that arises for consideration is:

Whether there is any evidence or material on record to fasten the liability for return of the gold ornaments or value thereof to the appellants, on the second and third defendants also?

It is to be noted that the court below has found that the gold ornaments were pledged with the first defendant and that the said ornaments have not been returned. However, the decree is passed only against the first defendant, additional third respondent. The said part of the judgment and decree has not been challenged and has already become final.

According to the learned Counsel for the appellants, the oral evidence of PW1, who is the wife of late Parameswaran Pillai, together with the evidence of PWs. 2 and 3 clearly establish that the money lending business was being conducted by both the first and second defendants. The appellants'' witnesses have deposed that they have seen the first and second defendants conducting the money lending business together from the premises taken on rent by the first defendant from PW3. It is also submitted by the learned counsel for the appellants that "U.R.Finance" is the short form of the name of the second defendant which is "Usha Remani". However, it is to be noted that there is no evidence either oral or documentary to substantiate the above submission. No question has been put to the second defendant on this aspect when she was examined as DW1. PWs. 2 and 3 have deposed that they have seen defendants 1 and 2 conducting the money lending business together. But, they have not seen any record to support the above conclusion. Obviously, they have deposed as above only because of the presence of both defendants 1 and 2 in the business premises. Therefore, the testimony of PWs.2 and 3 are not sufficient to justify a conclusion that the first and second defendants were conducting the money lending business together, as alleged by the plaintiffs. If as a matter of fact, they had been conducting business together, the same could certainly have been substantiated by other reliable items of documentary evidence like licenses, deeds etc. It is also to be noted that no effort has been made by the plaintiffs to summon any such document or to examine some official witnesses to substantiate the above facts. There certainly are materials available to suspect that the husband and wife might have been conducting business together and that the present contentions are put forward only to defeat the claim of the plaintiffs. However, it is trite that suspicion, however strong cannot be substitute for proof. The court below was right in refusing the fasten liability on defendants 2 and 3 on the basis of the insufficient evidence on record. There is no reliable evidence or material available to warrant a finding that the business of money lending was being conducted by the first and second defendants jointly, as contended by the appellants/plaintiffs. Therefore, the court below was right in dismissing the suit as against defendants 2 and 3.

In view of the above, the appeal is dismissed, confirming the judgment and decree of the court below. No costs.