Monday 6 February 2017

Whether suit should be dismissed as abated if some of legal heirs are brought on record?

The submission canvassed by Mr. Sakhardande leading omission to bring left out heirs and legal representatives of the deceased on record must result in dismissal of the suit, also needs to be rejected. If some of the heirs and legal representatives are already before the Court and if the estate of the deceased is sufficiently represented, then, omission to bring other heirs on record alone cannot be a ground for dismissal of the suit as held by the Apex Court in the case of (Smt. Gema Coutinho Rodrigues v. Bricio Francisco Pereira and Ors.) MANU/SC/0263/1994 : AIR1994SC1199 .
IN THE HIGH COURT OF BOMBAY
Summary Suit No. 1674 of 1988
Decided On: 15.04.2008
 Shobhita Rani Kaushal
Vs.
 Ketty Jehangir H. Dhanjibhoy and Anr.
Coram:
V.C. Daga, J.



1. The plaintiff has filed this summary suit for the recovery of Rs. 66,500.00 with future interest thereon against the defendants.
THE FACTS:
2. The factual matrix brought on record is that the original defendant late Jehangir Dhanjibhoy was plaintiff's family friend That is how, the plaintiff and the original defendant were known to each other. The original defendant late Jehangir had represented that he had applied for Financial Assistance to the various financial institutions and banks and, shortly, he was likely to get financial assistance from them. In the meanwhile, since he was in need of money for his business establishment run under the name and style of "Hotel Sai Village at and Restaurant at Shirdi", he had requested to the plaintiff for hand loan, which was granted to him by way of hand loan by the plaintiff in the sum of Rs. 35,000/-, secured by Promissory Note dated 1st May, 1985 executed in favour of the plaintiff Miss. Shobhita Rani Kaushal.
3. According to the plaintiff, the amount was paid by cheque drawn on Grindleys Bank pic, as detailed in the pro-note. The said cheque was deposited by the original defendant in his bank account. The amount paid by the plaintiff to the original defendant-late Jehangir was demanded from time to time by the plaintiff but he did not pay. Consequently, plaintiff issued a registered notice on 26th April, 1988. Inspite of written demand, no amount was paid by the late Jehangir. The plaintiff has, therefore, filed this suit for the recovery of Rs. 35,000/- with interest thereon against the original defendant Mr. Jehangir (since deceased).
4. The original defendant Jehangir expired during the pendency of the suit. His heirs and legal representatives, namely; his daughter Ms. Ketty and his wife Smt. Naseem Jehangir Dhanjibhoy were brought on record as defendant Nos. 1(a) and 2 by way of substitution.
5. The defendants applied for leave to defend, which was granted by an order dated 17th January, 2008 since Ms. Trupti Sanghvi i/b. Bhuta & Associates appeared for defendant No. 2 alone. That is how defendant No. 2, Smt. Naseem Dhanjibhoy was permitted to file her written statement. She chose not to file written statement. Consequently, the plaintiff was permitted to prove her claim by filing documents and the affidavit of evidence by way of examination-in-chief. Accordingly, the affidavit of one Shri. Rajesh Kaushal, Power of Attorney holder, was filed on behalf of the plaintiff.
6. The plaintiff also filed original document, namely; promissory note dated 1st May, 1985 in the sum of Rs. 35,000/- in favour of plaintiff, as stated hereinabove carrying signature of the original defendant late Mr. Jehangir; wherein promise was made to pay the amount mentioned therein with interest thereon @ 2.5% per month and also acknowledged the receipt of amount by cheque bearing No. 0032530 drawn on Grindleys Bank plc. The plaintiff has also produced Notice of demand dated 26th April, 1988 issued by her through her Advocate.
EVIDENCE:
7. Mr. Rajesh Kaushal, Power of Attorney holder of the plaintiff appeared as witness for and on behalf of the plaintiff and examined himself on oath and verified his Affidavit (Exhibit-P) and proved Power of Attorney (Exhibit-"P-1") and the promissory note, marked as Exhibits-P-3. Nobody had appeared for the defendant No. 1(a). The defendant No. 2 did not cross examine plaintiff's witness. Thus, the documentary and oral evidence brought on record by the plaintiff went unchallenged.
8. With the aforesaid material on record, Mr. Sankpal, Advocate appearing for the plaintiff and Mr. Sakhardande appearing for the defendant No. 2 were heard at length.
9. The sole issue required to be considered is:
Whether plaintiff has proved her claim against the defendants?
SUBMISSIONS:
10. Mr. Sankpal, learned Counsel appearing for the plaintiff urged that the entire suit claim stands established by oral as well as documentary evidence. He further urged that the promissory note raises a presumption of consideration under Section 118 of the Negotiable Instrument Act (N.I. Act), which has not been rebutted by the defendants.
11. Mr. Sankpal further submits that the original defendant late Jehangir had promised to pay Rs. 35,000/- with interest thereon @ 2.5% per month and also acknowledged the receipt of amount by cheque bearing Nos. 0032530 drawn on Grindleys Bank plc. He further submits that both the defendants being heirs and legal representatives of the deceased are liable to pay suit claim. That is how he claimed that the plaintiff is entitled to a decree in terms of the prayers in the plaint.
12. Per contra, Mr. Sakhardande, learned Counsel appearing for the defendant No. 2 urged that the Power of Attorney holder cannot depose for the principal for the acts done by the principal and that he cannot depose in respect of the matters of which the principal alone have a personal knowledge and in respect of which the principal is bound to face cross-examination in view of the provisions under Order 3 Rules 1 & 2 of the Code of Civil Procedure, 1908 (C.P.C.). He placed strong reliance on the judgement of the Apex Court in the case of (Janki Vashdeo Bhojwani and Anr. v. Indusind Bank Ltd. and Ors.) reported in MANU/SC/1030/2004 : AIR2005SC439 .
13. Mr. Sakhardande has also urged that the affidavit filed is in first person and, therefore, the plaintiff cannot be said to have proved her claim. The suit claim is, thus, liable to be rejected.
14. Mr. Sakhardande also urged that suit transaction is hit by the provisions of the Bombay Money Lenders Act, 1946 (Money Lenders Act) and that for want of money-lending, licence in favour of the plaintiff, suit is liable to be dismissed.
15. Mr. Sakhardande also urged that all the heirs and legal representatives of the deceased original defendant late Mr. Jehangir were not brought on record and, therefore, the suit is liable to be dismissed in absence of other heirs.
16. In rejoinder, Mr. Sankpal, learned Counsel for the plaintiff submits that, so far as the Power of Attorney holder Mr. Rajesh Kaushal is concerned, looking to his evidence, it would be clear that he is in know of entire facts of the case right from the stage of receiving request from late Jehangir Dhanjibhoy for loan till the stage of payment to him by cheque. That the promissory note was executed in favour of the plaintiff by the original defendant late Jehangir in his presence. He, thus, submits that even if the Apex Court judgement is taken into account, the evidence of Mr. Rajesh Kaushal cannot be discarded since he is in know of the full facts of the case.
17. So far as applicability of the Money Lenders Act is concerned, Mr. Sankpal submits that the question : whether a person is money lender is a question of fact. In his submission, no written statement was filed by the defendant No. 2 and that no such evidence was brought on record. That no such defence was raised at any point of time in the past. He further submits that for want of contest, suit claim in any event is liable to be decreed against the defendant No. 1(a).
18. The learned Counsel for the plaintiff, while replying to the other submissions of Mr. Sakhardande, urged that the heirs and legal representatives of the deceased original defendant late Mr. Jehangir, who are on record, namely; his daughter and wife (widow) are sufficient to represent the interest of the deceased. As such, the suit cannot be dismissed for omission to bring other legal heirs and legal representatives on record. He further submits that at no point of time, any of the defendants informed to this Court or to the plaintiff that the deceased was survived by some other heirs other than the defendants before this Court. At any rate, he submits that since the estate of the deceased is sufficiently represented before this Court, the submission made in this behalf needs to be rejected. He, thus, prayed that the suit claim be decreed in toto.
CONSIDERATION:
19. At the outset, contention raised by Mr. Sakhardande with regard to the nature of the Affidavit filed in first person by the Power of Attorney holder, needs due consideration.
20. At the outset, the explanation furnished by the learned Counsel appearing for the plaintiff that it is a bona fide mistake since he has drafted the subject affidavit in the first person. At any rate, he submits that the affiant, who is a Power of Attorney holder steps into the shoes of the plaintiff for the purposes of giving evidence. As such, his affidavit was drafted in first person. In my view, it appears to be a technical mistake on the part of the Advocate, who has drafted this affidavit, for which plaintiff cannot be made to suffer. A mere bona fide mistake on the part of the Advocate in drafting affidavit by itself is not sufficient to dislodge the claim of the plaintiff, especially, when defendant has not suffered any prejudice and on the top of it, the claim has been established by the plaintiff on merits. That no evidence was tendered by the defendants in defence. Apart from this, Order 18, Rule 4 of C.P.C. is a new provision brought on the Statute book. The members of the Bar would take some time to know the purport of the provision, as such, technical objection raised in this behalf stands overruled.
21. The second contention raised by Mr. Sakhardande is that, the suit transaction attracts the provisions of the Bombay Money-Lenders Act, 1946. The suit is, thus, liable to be dismissed since plaintiff did not and does not hold any money lending licence. For more than one reason, submission needs rejection. Firstly, no written statement is filed by the defendant No. 2 inspite of grant of unconditional leave to contest suit. Specific directions to file written statement were issued. Secondly, no such plea was raised at any point of time in the past by any of the defendants. No evidence is brought on record in this behalf nor the witness of the plaintiff was cross-examined though witness was offered for cross-examination. Thirdly, the statutory scheme of The Bombay Money-Lenders Act, 1946 clearly indicates that it is only the business of money-lending which is sought to be controlled by the Act and individual transactions do not fall within the mischief of the Act.
If one turns to the definition clause, it is clear that the "business of money-lending" may be done even as additional business. The business of money lending imparts a notion or systematic, repetition and continuity and that is the proper legal test to be applied. For a person to be a money-lender, he must, in the regular course of business, advance loans. Isolated transaction is not covered under the provisions of the Act.
The word "business" shows that the stray act of advancing loan does not amount to "business of money-lending". Before any person can be considered as money-lender, it is necessary to establish that a person advances money with interest to a person as a matter of regular course and that he derives an appreciable part of his income through such business. A person does not become a money lender by reason of occasional loans to his relations, friends, or acquaintances, nor does he become a money-lender merely because on one or several isolated occasions he may have lend money with interest to strangers.
22. In the case of (Sitaram Shrawan Koshti v. Bajya Parnya Bhoi) A.I.R. 1941 Nag 177, Justice Vivian Bose ruled as under:
... There is no proof that the plaintiff is a "money-lender". The definition of "moneylender" given in the Act is "a person who, in the regular course of business, advances a loan". There is no proof here that the loan was advanced in the regular course of business. The word "regular" shows that the plaintiff must have been in the habit of advancing loans to persons as a matter of regular business. If only an isolated act of money-lending is shown to the Court it is impossible to state that constitutes a regular course of business. It is an act of business, but not necessarily an act done in the regular course of business. Consequently, the lower Court was wrong in applying this Act.
It was argued that the burden is on the plaintiff to prove that he is not a money-lender. That however is incorrect. The Act only applies to moneylenders and therefore before it can be applied it must be shown by the person seeking to apply it and seeking to take advantage of its provisions that the plaintiff is a money lender....
The definition of "money-lender" envisages only those classes of persons whose regular business is to advance moneys and not those advance moneys casually. The crux of the matter is : whether money is being advanced by plaintiff purely as a moneylender for the purposes of gain having no other consideration before him, or is it mixed up with other consideration than that of pure gain and for interest. If this definition is considered from this angle, the plea based on the provisions of The Bombay Money-Lending Act needs outright rejection. See : (Gajanan v. Brindaban) MANU/SC/0409/1970 : [1971]1SCR657 ; (Nandram v. N.B. Rahatekar) MANU/MH/0580/1993 : 1994(1)BomCR28 ; and (Ganesh v. Mithalal) MANU/MH/0095/1999 : AIR1999Bom120 .
23. The submission canvassed by Mr. Sakhardande leading omission to bring left out heirs and legal representatives of the deceased on record must result in dismissal of the suit, also needs to be rejected. If some of the heirs and legal representatives are already before the Court and if the estate of the deceased is sufficiently represented, then, omission to bring other heirs on record alone cannot be a ground for dismissal of the suit as held by the Apex Court in the case of (Smt. Gema Coutinho Rodrigues v. Bricio Francisco Pereira and Ors.) MANU/SC/0263/1994 : AIR1994SC1199 .
24. Having said so, let me now turn to the merits of the matter. The plaintiff has examined her duly constituted and authorised attorney, her brother Mr. Rajesh Kaushal, who has deposed based on his personal knowledge about the suit transactions right from its inception. Looking to his evidence; wherein he has given a graphic picture about the request for loan, execution of loan documents and payment made by cheque to the original defendant and that the details in the promissory note were filled in by him in his own handwriting, inspires judicial confidence. There is no material on record to dislodge or disbelieve his evidence. Under these circumstances, the contentions raised by Mr. Sakhardande even on merits cannot be accepted. The plaintiff has proved her claim in toto. The promissory note raises a rebuttable presumption under Section 118 of the Negotiable Instruments Act (N.I. Act), which has not been rebutted by the defendants.
25. So far as the question of grant of interest is concerned, one has to take into account the fact that the loan amount is secured by the promissory note, which is Negotiable Instrument. Under Section 80 of the N.I. Act, the plaintiff would be entitled to interest @18% per annum from the date of execution of the pro-note till filing of the suit.
26. A judicial note of the fact can be taken that in past few years, the rates of interest have gone down. There is no amendment in this behalf to the N.I. Act leading to the reduction in the rate of interest. Therefore, the plaintiff is only entitled to get advantage of the provision of Section 80 of the N.I. Act till the date of filing of the suit. However, so far as future rate of interest is concerned, the award thereof is purely in the discretion of this Court in view of Section 34 of the C.P.C.
27. Thus, taking overall view of the matter and judicial note of prevailing rate of interest, grant of 4% interest on the principal amount of Rs. 35,000/- from the date of suit till realisation would be in the interest of justice. Hence, the following order:
ORDER
a) Defendants do pay jointly and severally to the plaintiff a sum of Rs. 35,000/- with interest thereon @18% per annum from the date of pro-note i.e. 1st May, 1985 till the date of filing of the suit i.e. 28th April, 1988 and @4% per annum from the date of suit i.e. 29th April, 1988 till payment in full and final with costs. Decree be drawn in terms of this judgement and order.

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