TATIA, J. - (1.) THIS first appeal is against the judgment and decree of the trial court dated 30. 9. 2002 passed in Civil Original Suit No. 10/91 whereby the trial court decreed the suit of the plainiff Mool Chand against defendants Smt. Sukhi Bai, Smt. Bheri and Smt. Gunvanti for Rs. 68,000/- along with interest @ 6% per annum with the direction to the plaintiff to return the pledged goods to the defendants on receipt of the above amount of Rs. 68,000/ -.
(2.) BRIEF facts of the case are that according to the plaint allegation, one Chhagan Lal, for his business need, took loan of Rs. 50,000/- from the plaintiff on 17. 5. 1988. For that purpose, said Chhagan Lal sent her daughter-defendant No. 3 Gunvanti for taking loan amount from the plaintiff, after giving gold ornaments as securing for refund of the loan amount and interest. Said Gunvanti gave 24 tolas of gold ornaments to the plaintiffs, details of which is given in the plaint itself and took Rs. 50,000/- from the plaintiff. According to the plaintiffs own case, the plaintiff did not test the gold ornaments and without much enquiry, he put all the gold articles in one iron-box and called two witnesses Madan Lal and Hazari and after stitching the said iron-box in cloth cover, sealed it. Thereafter, on 17. 5. 1988, the defendant No. 3 wrote slip about taking of loan on condition of re-payment of loan with interest thereon @ 1. 50% per month. Subsequent to that, said Chhagan Lal died. The plaintiff asked the defendants for repayment of the loan amount and interest and take back the gold ornaments. The defendants did not pay a single penny to the plaintiff. Thereupon, the plaintiff served a registered notice upon the defendants through his Advocate on 2. 5. 1991. Even after notice, the defendants did not re-pay the loan amount and interest and, therefore, the plaintiff filed the suit for recovery of principal amount of Rs. 50,000/- and interest @ 12% instead of 18% p. a. amounting to Rs. 18,000/-, in total Rs. 68,000/- only in place of Rs. 77,000/ -. The plaintiff also prayed that decree may be granted for payment of Rs. 68,000/- and interest and upon which the plaintiff will return the pledged goods to the defendants. The plaintiff further prayed the interest pendantelite. The defendants submitted written statement and admitted taking of loan of Rs. 50,000/- on interest @1. 50% per month. The defendants further submitted that since deceased Chhagan Lal was sick at that time and was in need of money, therefore, on his instructions, defendant No. 3 was sent by Chhagan Lal for giving gold articles to the plaintiff and he also asked that the account may be opened in the name of defendant No. 3. When gold articles were delivered by defendant No. 3 to the plaintiff, the defendant No. 3 tested gold articles and also after taking weight of the articles, opened the account of loan of defendant No. 3. In the account book, he mentioned the correct weight of the gold articles also and thereafter, the plaintiff gave Rs. 50,000/- to defendant No. 3. It is submitted that the plaintiff wrongly stated that he did not examine the gold articles nor he weighed them. The defendants denied that the alleged witnesses Madan Lal and Hazari were present there and they put their signatures over the sealed cloth of the iron-box. The defendants submitted that the written slip which was signed by defendant No. 3, was interpolated by inserting a few lines which are inserted purposefully to create evidence. When above fact came to the knowledge of the defendants, the defendants had reason to doubt that the plaintiff must have changed the gold ornaments The defendants very specifically stated that in case the plaintiff will deliver the gold ornaments, they are ready to pay the entire due amount to the plaintiff. In the trial court issues were framed which include, whether at the instructions of Chhagan Lal, defendant No. 3 took loan of Rs. 50,000/- from the plaintiff on 17. 5. 1988 and handed over gold ornaments to the plaintiff in security of repayment of the loan ? whether the weight of gold ornaments were written by assessment and not by actual weight ? whether the box containing the gold articles was sealed in presence of defendant No. 3 and it was not tempered with? whether the plaintiff is entitled to decree for Rs. 50,000/-with interest @ 12% per annum amount to Rs. 18,000/-? whether defendant No. 3 herself executed letter dated 17. 5. 1988 on her own behalf as well as on behalf of Chhagan Lal about liability of Rs. 50,000/- and its payment with interest @ 18% per annum? whether the document dated 17. 5. 1988 is as it is as it was written? The plaintiff gave his statement as PW-1 and produced witness Madan Lal as PW-2. Defendant No. 3 alone gave her statement. The documentary evidence was also produced by the plaintiff. The trial court held that since defendant No. 3's signature was on Ex. 1, the disputed slip written by defendant No. 3 and above that the disputed language is mentioned, therefore, defendant No. 3 must have signed the document after certain lines are added in Ex. 1. The trial court did not accept the defendants' contention that certain lines were added subsequently after signing of the document by defendant No. 3 in Ex. 1. The trial court, therefore, held that the plaintiff is entitled to decree for Rs. 68,000/- as claimed by the plaintiff with interest @ 6% per annum. Hence this first appeal.
(3.) THE learned counsel for the appellants vehemently submitted that it is true that Chhagan Lal took loan of Rs. 50,000/- and that too on interest @ 18% per annum. Defendant No. 3, the daughter of Chhagan Lal, on instructions of Chhagan Lal, went to collect loan of Rs. 50,000/- from the plaintiff and handed over gold ornaments to the plaintiff and brought Rs. 50,000/ -. At the time of handing over gold articles, the plaintiff weighed the gold articles and recorded the weight of the gold articles separately for each article. Total gold articles were of 24 tolas and the defendants were and are ready to re-pay the loan amount to the plaintiff but the plaintiff is bound to return the goods of the defendants. But in this case, the plaintiff who is gold- smith by-caste as well as by profession and who is a money lander, changed the gold articles and, therefore, only he has filed the suit for recovery of the amount so as to recover the amount from the defendants with heavy interest and that too by keeping real gold articles with himself. THE defendants are ladies and the plaintiff who is money lender and trader, who has forged and fabricated and interpolated the document executed by the defendant-lady and has created oral evidence also, cannot be believed. It is also submitted that Ex.-1 the slip written by the plaintiff himself in his own handwriting, is written in the Marwari language with equal distance between two lines. THEreafter, all of sudden, three lines comes on documents in good Hindi language, which is entirely different language written in the same document and also in continuation. THE ink is different and distance between the lines subsequently inserted also, is much less than the distance which is in between the lines written in the Marwari language. THEre is no explanation of the plaintiff or his witnesses how it happened and the trial court merely on the basis of admission of the signature of defendant No. 3 below this language, held that defendant No. 3 must have signed the document after writing of the document in two different languages and in two different manner. The learned counsel for the appellants further submitted that the court below failed to appreciate that in civil cases, the conduct of the parties also can be looked into and in this case, the trial court has ignored this material fact that the plaintiff who is gold-smith by profession and is money lender, stated in the plaint that he did not examine the gold nor he weighed the gold and advanced Rs. 50,000/- to a lady that too in the year 1988, then whether this fact itself can be believed. There is no explanation why the businessman did so. Coupled with this fact, the interpolation in document clearly shows that the plaintiff-respondent wants to cheat the appellant-defendants only. The learned counsel for the appellants also pointed out that there are contradictions in the statement of the plaintiff and the plaintiffs witnesses. The plaintiff in examination-in- chief, stated that when the plaintiff tried to get the ornaments checked so as to find out that the ornaments were of gold or not, defendant No. 3 did not allow him to do so. Even then, according to the plaintiff, he advanced the loan to defendant-lady. The plaintiff in cross-examination admitted that he is by profession goldsmith and doing the business of making silver items. He stated that he is not making the gold ornaments. The statement of the plaintiff, on the face of it, clearly reveals that the plaintiff has full knowledge that the articles which were handed over by defendant No. 3 are not lying in the said box and, therefore, to cheat defendant, he stated that despite his insistence, the defendant did not allow the plaintiff to test the gold of the gold articles and the plaintiff did not weight the ornaments. It cannot be believed that a gold-smith having weight equipments of gold articles, will not weight the gold articles and will hand over the amount of Rs. 50,000/- to a lady. The plaintiff also challenged the presence of witnesses Madan Lal and Hazari. The plaintiff stated that Madan Lal and Hazari came at his place for sale transaction of his house but that statement is false statement. Not only that, the said witnesses were created by the plaintiff because of his having long standing relations with the defendants. The plaintiff's statement about the witness Madan Lal clearly shows that he was also an obliging person to the plaintiff only. Madan Lal in his cross-examination, admitted that his house was mortgaged with the plaintiff Mool Chand. The plaintiff's own witness Madan Lal in his cross-examination, admitted that the gold articles were weighed by the plaintiff Mool Chand and thereby contradicted plaintiffs statement. He also admitted that the ornaments were of gold, however, he stated thereafter that the articles were not tested because defendant No. 3 did not allow testing of the gold ornaments. The learned counsel for the appellant relied upon the judgment of the Hon'ble Supreme Court delivered in the case of Loonkaran Sethia etc. vs. Mr. Ivan E. John and others etc. (AIR 1977 SC 336), wherein Hon'ble the Supreme Court held that effect of making an alteration in document without the consent of the party bound is exactly the same as that of cancelling the deed. In the case in hand, it is clear that Ex. 1 has been materially altered by the plaintiff without the consent of the defendants. It is submitted that the plaintiff is bound to re-deliver the pledged goods and without re-delivery of pledged goods, the plaintiff cannot get the decree for repayment of the money, as held by the Hon'ble Supreme Court in the case of Lallan Prasad vs. Rahmat Ali and another ( AIR 1967 SC 1322 ). Another judgment relied upon by the learned counsel for the appellant is of this Court delivered in the case of Khusiram vs. Swaroop Narayan ( 1989 WLN (UC) 332) wherein it has been held that in a case where the goods were pledged with the creditor and the promissory note was also executed by the borrower, then this Court held that Pawnee would not be entitled to a decree on the basis of the promissory note. By that he would retain the goods of the borrower and will also have the money advanced by the creditor to the borrower. ;