DINKU KHATI, AGED ABOUT 41 YEARS Vs. KAMAL KUMARI SUBBA
LAWS(SIK)-2020-3-7
HIGH COURT OF SIKKIM
Decided on March 24,2020

Dinku Khati, Aged About 41 Years Appellant
VERSUS
Kamal Kumari Subba Respondents


Referred Judgements :-

H.K.N. SWAMI VS. IRSHAD BASITH (DEAD) BY LRS [REFERRED TO]
BHAGWAN KAUR V. SHRI MAHARAJ KRISHAN SHARMA [REFERRED TO]
LIC OF INDIA VS. RAM PAL SINGH BISEN [REFERRED TO]


JUDGEMENT

Arup Kumar Goswami,CJ. - (1.)This appeal is preferred by the plaintiff against the judgment and decree dated 27.02.2019 passed by the learned District Judge, East Sikkim at Gangtok, in Money Suit No. 14 of 2015, dismissing the suit of the plaintiff, whereby recovery of Rs.32,47,200/- was prayed for along with interest of 18% from date of filing till final execution.
(2.)The case of the plaintiff, in a nutshell, as projected in the plaint is as follows:
(i) The plaintiff, who is a practicing Advocate, was introduced to the defendant by the husband of the defendant, Mr. Ashok Kumar Subba (Tsong), in the year 2009 and she had rendered legal assistance to the husband of the defendant and his other family members. Husband of the defendant had started a company in the name of M/s Zingtang Consultancy and Service Pvt. Ltd. and she had accepted the post of Legal Advisor in that company. It is pleaded that the defendant had approached the plaintiff in and around August, 2009 for a loan of Rs.2,00,000/- for the purpose of payment of fees of the daughter of the defendant who was studying in Australia with a promise to repay the loan within two months. With much difficulty, the plaintiff managed to collect the said amount and delivered the same to the defendant without executing any document. Though the plaintiff had asked for repayment of the loan after two months, the amount was not paid. Nevertheless, the plaintiff arranged one rented flat belonging to one Nima Gurung at Siliguri for the defendant and her family members to stay at Siliguri.

(ii) In respect of default of payment of loan of Rs.90,00,000/- taken by the defendant from the United Bank of India, Deorali Branch, a notice under Section 13(2) of SARFAESI Act, 2002 was issued to the defendant as well as to her husband, who was the guarantor and an amount of Rs.18,41,540/- was paid by Mr. Ashok Kumar Subba (Tsong) from the account of the company towards loan repayment. The bank loan dues of the defendant mounted to Rs.1,42,00,000/- and to save the property, the defendant requested the plaintiff to manage a loan of Rs.6,00,000/- which she stated would be paid with interest along with Rs.2,00,000/- taken earlier. It is the further case of the plaintiff that she mortgaged a plot of land along with two dwelling flats belonging to her late father, namely, Tek Bahadur Khati to one Chandra Bhusan Tiwari for Rs.6,00,000/- which was to be repaid by her within a period of six months. The plaintiff paid the defendant the amount of Rs.6,00,000/- in two installments: one of Rs.5,00,000/- on 25.05.2011 and the other a sum of Rs.85,000/- out of Rs.1,00,000/- on 22.12.2011 after deducting 15% interest at the source itself. The defendant, despite approaches made by the plaintiff, did not repay the loan with interest accrued thereon forcing the plaintiff to borrow money from her brothers, namely, Mr. Amit Khati and Mr. Manish Khati, to pay the accrued interest.

(iii) A Possession Notice as well as a Sale Notice dated 26.03.2012 were served on the defendant on 23.02.2012 by the Bank in connection with the loan taken by the defendant and in the aforesaid situation, the defendant approached the plaintiff expressing her inability to repay the loan and to protect the building constructed by her husband before the Debt Recovery Tribunal, the defendant had taken a loan from the plaintiff amounting to Rs.6,79,000/-. It is pleaded that the plaintiff paid the aforesaid amount from the amount received by her by cheque dated 10.04.2012 from one of her clients, namely, Ashok Lama.

(iv) A sum of Rs.35,000/- was also stated to be paid by the plaintiff by cash and another sum of Rs.5,000/- was deposited in the account of Mr. Yehang Subba, son of the defendant, on 20.04.2012, on being requested by the defendant when her son had gone to Delhi for his treatment of Tuberculosis.

(v) The plaintiff also stated to have mortgaged her gold ornaments for a sum of Rs.2,45,305/- to safeguard the property of the defendant and handed over the said amount to the defendant.

(vi) It is stated that plaintiff had borrowed a sum of Rs.72,895/- on 19.04.2012 from Leela Shilal, Rs.2,20,000/- on 11.07.2012 from Manju Khati, Rs.2,00,000/- on 04.09.2012 from Sashi Khati and Rs.8,50,000/- on 29.04.2012 from Jyoti Subba, totaling Rs.13,42,895/- and the said amount was given to the defendant on various dates by executing a Hand Note/Money Receipt dated 16.07.2013. In the meantime, though the plaintiff continued to appear in the legal proceedings, due to non-payment of dues, physical possession of the mortgaged building was taken over by the Bank on 20.03.2014.

(vii) It is further pleaded that by an Agreement dated 21.04.2013, the defendant had sold the property, namely, M/s Hotel Golmaheem for a consideration amount of Rs.3,00,00,000/- and received an advance amount of Rs.1,56,00,000/-, but in spite of that, the loan amount was not paid to the plaintiff. It is stated that as despite the execution of Hand Note dated 16.07.2013, the defendant did not pay the amount to the plaintiff for long two years, the plaintiff was compelled to file the suit.

(3.)(i) In the written statement filed by the defendant, it is stated that the plaintiff was introduced not by her husband, but by Mr. B. Sharma, Senior Advocate, with whom the plaintiff was working as a junior and the family members of the defendant had only formal relation as she often came with Mr. Ashok Kumar Subba, who used to extract money from the defendant. Many cases were filed against the plaintiff and Mr. Ashok Kumar Subba in connection with the functioning of the company and they were also arrested on allegation of cheating people of various places.
(ii) It is categorically stated that she had never approached the plaintiff for any loan and the plaintiff had made a fabricated story. It is pleaded that it was Mr. Ashok Kumar Subba, who rented a flat for himself and not for the defendant and her family members. The defendant had admitted about availing of loan and issuance of notice under Section 13(2) of the SARFAESI Act. The defendant denied that she ever received any amount from the plaintiff and she also stated that she had not received any amount from her husband. Rather, it was Mr. Ashok Kumar Subba, who had taken a sum of more than Rs.10,00,000/- from the defendant for the purpose of a case in the Gauhati High Court.

(iii) It is pleaded that she had never taken or agreed or promised to pay the amount of Rs.6,00,000/- with interest of 5% and Rs.26,47,200/-. She also denied her signature on the said hand-note. It is submitted that the plaintiff, in collusion with Mr. Ashok Kumar Subba, had been maliciously and fraudulently trying to extract money and accordingly, a false and concocted case has been filed.

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