GYANANANDA SEN Vs. RANJIT KUMAR DAS

JUDGEMENT

(1.) This appeal is directed against the judgment and decree passed by the appellate Court in Money Appeal No. 5/94 affirming the plaintiff's dismissal of the suit in M. S. No. 8/5 of 1994/92-III passed by the Addl. Civil Judge, Senior Division, Balasore.

(2.) The appellant-plaintiff had advanced a loan of Rs. 15000/- as a family accommodation to defendant No. 1. It is alleged that the respondent-defendant No. 2 on several previous occasions used to take hand loans from the plaintiff-appellant to meet his household and other expenses and was repaying those amounts in time. On 16-7-89 during evening hours the respondent-defendant No. 1 approached the plaintiff for a loan of Rs. 15,000/-. But the appellant-plaintiff did not have sufficient cash at that time, therefore, he advanced him Rs. 5000/- and had taken a hand receipt from him with the understanding that on the day following both the defendants would go and execute an agreement in favour of the plaintiff-appellant and upon such execution he would pay the balance amount. Pursuant to the previous understanding, it appears, both the defendants went to the Court premises after purchasing the stamp papers for the purpose of executing the agreement. Defendant No. 1 was the main borrower whereas defendant No. 2 acted as a guarantor for him. It was agreed by and between the parties that the defendants will repay the suit loan with interest to the plaintiff. Accordingly the balance amount of Rs. 10,000/- was paid to defendant No. 1 by the appellant. Thus defendant No. 1 had incurred a loan of Rs. 15,000/- on 16-7-89 from the plaintiff agreeing to repay the principal with the interest at the contractual rate. The appellant thereafter demanded the defendants to repay the loan, but when they developed casual attitude towards the plaintiff's demand, he served a legal notice to them to which they also observed complete silence.

(3.) Defendants contested the suit by stating that the plaintiff was a regular money-lender. He was carrying on money-lending business till the date of the suit. As the defendants reposed full confidence in the plaintiff they approached for a loan. The plaintiff asked them to come to the Court area and he would advance the loan after executing the document. Accordingly stamp papers were purchased by the defendants and they were asked to put their blank signatures on those stamp papers. The plaintiff asked them to wait till he brought the money from the bank. Even though they waited till evening, the plaintiff did not turn up. On the following day when the defendants approached him for money the appellant asked them that they had already taken the loan and he would not return the agreement.