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Judgment
Puneet Gupta, J
The judgment and decree dated 19.04.2012 passed by the learned District Judge, Jammu in Civil Suit No. 69 has been challenged by the appellants.
The appellant No.1 is the legal representative of the one of the deceased-defendant, namely, Amarjeet Singh. The civil suit filed by the respondent-defendant No.1 for Rs.21,12,516/- was decreed along with interest @10% from the date of filing of the suit till its realisation. In the suit it was averred that the defendant No.1 Babu Ram had approached the plaintiff for obtaining loan of Rs.4 lac on 08.07.1990 @ 3% per annum and this proposal was agreed to by the plaintiff and in pursuance to the same the said defendant executed the simple mortgage of his shop situate at Gandhi Nagar, Jammu and which was part of H.No. 729-A, which the defendant No.1 had purchased by virtue of two Sale Deeds. The defendant No.1 encashed the cheque of the aforesaid amount from the Union Bank of India, Gandhi Nagar Branch on 03.09.1990. The defendant No.1 was under an obligation to pay the loan amount of Rs.4 lacs along with interest agreed on or before 31.12.1990 but did not do so. The defendant No.2 is stated to be the margin witness in the Mortgage Deed. Despite legal notice, the defendant did not return the amount due to the plaintiff. It is further averred in the plaint that the defendant No.1 had handed over the mortgage shop to defendant Nos.2 to 4 who run the business there under the name and style of M/s Dalbir and Co. A. D. Agency though the defendant No.1 could not have handed over the said to the defendant Nos. 2 to 4.
The defendants contested the suit and filed joint written statement.
In the written statement it was submitted that the plaintiff has business dealings with M/s Balwant Singh and Sons of which defendant Nos. 2 to 4 are the partners. The defendant No.1 was employee of the said firm and was made to sign documents which he did in good faith. The defendant No.1 neither received the loan nor it utilize the same. The deed of agreement dated 21.01.1991 and General Power of Attorney have been executed between defendant Nos. 2 to 4 as partners of the firm and plaintiff. M/s Dalbir and Company Gandhi Nagar, Jammu have been running their business of stockist and suppliers in the mortgaged shop for the last more than 30 years. The defendant No.1 has no obligation to pay the amount as demanded by the plaintiff.
The trial court framed issues in the suit on 30.04.2004.
Issue No. 4 (A) was framed vide order dated 24.09.2011 and was treated as preliminary issue. The same reads as under:-
Whether suit is barred by limitation and as such is liable to be dismissed?
The trial court vide impugned judgment decided all the issues framed in the case in favour of the plaintiff and against the defendants and the plaintiff was held entitled to the decree of Rs.21,12,516/- along with interest @ 10% from the date of filing of the suit till its realisation.
Mr. Abhishek Wazir, learned counsel for the appellant has argued that the trial court has passed the judgment and decree without going into the real issues that were required to be addressed by the court. It is submitted that the defendant No.1 never admitted the claim of the plaintiff. The defendant Dalbir Singh who has also since died was in possession of the shop and has nothing to do with the transaction, if any, between the plaintiff and the defendant No.1.
The decree passed by the court affects the rights of the plaintiff and, therefore, the appeal had to be filed against the judgment passed by the trial court though the judgment in expressed terms may not appear to affect the rights of the appellants.
Mr. S.K.Anand, learned counsel for the respondent No.1-plaintiff has argued that the trial court has rightly decreed the suit as the defendant had admitted the claim of the plaintiff. The shop in question was mortgaged though handed over by the deceased-defendant Babu Ram to the co-defendants.
The Court is of the view that the learned trial court has passed the judgment and decree in a superfluous manner and has decided the issues including the issue of limitation in a perfunctory manner.
The preliminary issue of limitation has been decided which otherwise required evidence. The issue could not be decided in the manner it has been decided by the trial court. The trial court has in one sweep decided all other issues also which were framed vide order dated 30.04.2004. The trial court on its own has held that the defendant No.1 had impliedly admitted the loan which was allegedly advanced by the plaintiff to the defendant.
The defendants were required to be given chance to plead their cause by way of evidence in view of what had been stated by the defendants in the written statement. The explanation given by the defendant No.1 could not be brushed aside by the trial court by simply stating that the defendant No.1 had admitted the loan amount in question. The matter is required to be remanded back to the trial court for deciding the issues framed in the case including Issue No.4 (A) which relates to the suit if being barred by the limitation.
The perusal of the judgment and decree impugned otherwise does not provide clarity qua the relief granted in the judgment and decree.
The argument is also raised by Mr. Anand, counsel for the respondents that the judgment and decree does not affect the appellant herein and, therefore, the suit before the appeal could not have been filed by the appellant. This Court is not in agreement with the argument of the learned counsel for the respondent-Amarnath. The decree passed if to be executed can definitely affect the appellant Nos. 1 & 2 who claim their possession in the suit property.
In view of the discussion made above, the appeal is allowed and the judgment and decree passed by the trial court is set aside. The matter is remanded back and the trial court shall decide the issues framed in the suit.
Record of the trial court be sent back.