Smt. Prabha Devi Goyal vs Laxmikant

S.S. Jha, J.

This appeal is admitted on the following substantia! question of law:

Whether the judgment and decree passed by the Courts below is vitiated as it is against record and admitted case ?

Brief facts of the case are that the Plaintiff/Appellant has filed a civil suit for recovery of Rs. 7030/- against the Defendant. According to the Plaintiff an aomount of Rs. 12000/- as loan was advanced by the Plaintiff to the Defendant. A promissory note was also executed. It was also agreed that the Defendant shall pay interest at the rate of Rs. 1/- per month.

The Defendant set up plea that he has paid entire amount and on this basis the trial Court considering the claim, held that the Defendant had paid Rs. 6000/- to the Plaintiff and a decree for recorvery of Rs. 500/- was passed.

In an appeal by the Plaintiff, the lower appellate Court has dismissed the suit holding that the decree for payment of Rs. 500/- was not proper and set aside the decree passed by the trial Court.

Counsel for the Appellant submitted that once the Defendant had admitted execution of promissiory note and set up a plea of return of loan amount, the burden was upon the Defendant to prove that he has actually paid the loan amount. Learned Counsel for the Appellant further submitted that the Defendant in his written-statement had pleaded that he has not secured the amount of Rs. 12000/- on 1-4-1980. Howewer, he has executed a promissory note in respect of previous loan transaction. The Defendant had also denied the condition of payment of interest and pleaded that out of the loan amount of Rs. 12000/- Rs. 6000/- has been paid by the Defendant. However, the Defendant set up a plea that he has paid the amount of loan through cheques drawn at State Bank of India and particulars of the payment was mentioned by the Defendant in para 8 or his written statement.

Once the Defendant has set up a plea that he has paid entire loan amount, the burden was upon him to prove that he has actually Raid the loan amount. The Defendant has further set up a plea that he had paid the amount through cheques. The Defendant has exhibited the counterfoils of the cheques as per Ex. D/1 to D/5 on record. Both the Courts below have relied upon these counterfoils. But the Courts below have not considered the fact that counter-foils of the cheques are not admissible in evidence, unless the accounts of the Bank are produced and porved in Court. Issuance of cheques is not sufficient to demonstrate that the amount is paid. It is for the party to establish that the cheques issued by it were encashed through Bank. Though the Defendant has claimed payment by cheques, but he has not produced pass book of the Bank or any other certified copy of the Bank''s account to demonstrate that the cheques issued by him in favour of the Plaintiff were encashed by the Plaintiff and this fact is mentioned in the Bank''s account.

In the evidence, the Defendant himself has stated that he issued cheques, he had nowhere stated that the cheques were encashed by the Plaintiffs. The lower appellate Court has also dismissed the suit of the Plaintiff only on the ground that the Plaintiff has not entered the witness box and her husband Omprakash entered the witness box. The lower appellate Court held that since the Plaintiff has not entered the withness box, the suit desrves to be dismissed and dismissed the suit of the Plaintiff.

The lower applate Court was totally wrong in holding that on failure of Plaintiff to enter the witness box the suit stands dismissed. Anyone can depose on behalf of the palintiff if he knows the facts of the case. Om Prakash is the husband of the Plaintiff and u/s 120 of the Evidence Act, a husband can depose for his wife. Even otherwise, once the Defendant has admitted execution of promissory note, burden was upon him to prove payment to the Plaintiff.

As discussed above, the defendend has failed to discharge the burden. Therefore, the substantial question of law is answered in affirmative and it is held that the judgment and decree passed by the Courts below are vitiated as it is against the record and admitted case.

Since the Defendant has failed to prove repayment of loan to the Plaintiff, the appeal succeeds and the Plaintiff''s suit is decreed with costs. The judgment and decree passed by the lower appellate Court is set aside.

In the result, the Plaintiff''s suit is decreed with costs for recorvery of Rs. 6000/- principal sum with interest Rs. 1020/- total Rs. 7020/- upto the date of the suit. The Defendant is further directed to pay interest at the rate of 6 per cent per annum on the amount of Rs. 6000/- only from the date of filing of he suit till its recovery. The defandant shall also bear the costs of this appeals. Counsel''s fee as per schedule.