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Assam Schedule VII : Form No. 132

HIGH COURT FORM NO.(J) 2. HEADING OF JUDGMENT IN ORIGINAL SUIT / CASE

IN THE COURT OF THE CIVIL JUDGE

TEZPUR, SONITPUR

Present: Smti Munmun B.Sarma

Civil Judge

Tezpur, Sonitpur

23rd May’2017

MONEY SUIT NO.13/2013

Institute of Integrated Resource Management

Situated at B.S. Road, Rangaphukuripar,

PO- Tezpur, Mouza – Haleswar,

District – Sonitpur, Assam

Represented by its -

Secretary-cum-Chief Executive Officer

Dr. Hosagrahar Dhattaraya

----- Plaintiff

-Vs.-

Anjali Sukhati Self Help Group Foundation (ASSF)

Represented by :

(1) Smt. Basumoti Brahma

W/o Sri Promod Ch. Brahma

Secretary of Anjali Sukhati Self Help Group Foundation

Smt. Jamuna Basumatary

W/o Sri Angkudao Basumatary

Chairperson of Anjali Sukhati Self Help Group Foundation

Both of –

Village – Gajenpur, PO & PS - Kokrajhar

District; - Kokrajhar, Assam ----- Defendant

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This suit for recovery of Rs.19,00,000/- (Rupees Nineteen Lakhs Only ) from the

defendants as damages

Counsel for Plaintiff :

Counsel for Defendant :

JUDGMENT

(1) This is a suit for recovery of Rs.19,00,000/- (Rupees Nineteen Lakhs Only)

from the defendants as damages.

Case of the Plaintiff:

(2) The plaintiff’s case is that it is a Non-Government Organization registered

under the Societies Registration Act & since its inception in 2000, the plaintiff has

been undertaking various programmes in the different developmental fields & apart

from these, the plaintiff society has been providing financial assistance to

daily/annual income. In 2007 the defendant society approached the plaintiff for

sanctioning a loan amount to Rs.20,00,000/- and considering the all aspects of the

Defendant Society, the plaintiff sanctioned an amount of Rs.16,75,000/- to the

defendant society. The said sanctioned loan was disbursed through 3 (three) nos. of

different cheques, same being Rs.10,00,000/- vide cheque No.040215 dated 28-12-

2017, Rs.3,00,000/- through cheque No.040230 dated 10-01-2008 and Rs.3,75,000/-

through cheque No.041355 dated 30-03-2008. Defendant society accepted the said

amount by executing and signing a loan agreement and necessary documents and

papers by the defendant Nos. 1(1) and 1(2) as the Secretary and Chairperson of the

society respectively. However, the defendant organization willfully failed to utilize the

said amount for the actual purpose & also failed to pay the installments to the

plaintiff in spite of repeated demand made by the plaintiff upto 02-05-2008. Till that

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day, the defendant was to pay an amount of Rs.3,00,002/- as per terms of the

agreement.

(3) The defendant organization issued 3 (three) Nos. of cheques bearing

No.002277 dated 03-05-2008 for Rs.5 lacs, another cheque bearing No.002278 dated

03-05-2008 for Rs. 5 lacs and the 3rd cheque being No.002285 dated 03-05-2008 for

Rs.6,75,000/- in favour of the plaintiff. However, all the 3 cheques were returned by

the Bank due to insufficient fund in the account of the defendant. Thereafter, the

plaintiff filed a complaint case (C.R Case No.439/2008) on 25-07-2008 u/s 138 NI Act

& after receipt of the summons the defendants field a false case against the

Executive Officer –cum-Secretary of the plaintiff organization, Md. Jahangir Ahmed @

Jahangir Ali Seikh and Smt. Lalita Bala Bramha u/s 418/420/381/109 of IPC with

some false allegations & it was registered as Case No.1705C/08. In response, the

plaintiff filed a petition u/s 482 of CrPC in the Hon’ble Gauhati High Court praying for

quashing of the complaint case (Crl. Revision No.185/2009) & vide order dated 04-

01-2012 the complaint case was quashed. Thus, having no other way, the defendant

appeared in the learned court of Judicial Magistrate, 1st Class, Tezpur and

compromised the disputed matter by amicable settlement between the parties on 04-

06-2012 agreeing to pay Rs.12 lacs on installments basis.

(4) It was further alleged by the plaintiff that because of the false criminal case

filed by the defendants the plaintiff organization has to suffer a huge financial loss as

well as caused down the status, fame and previous glories activities. Believing that

the plaintiff organization is a cheating organization and fraud organization for which

number of employees had to leave their jobs that were serving under the plaintiff

organization. As a result, the plaintiff organization was compelled to abolish number

of Branch offices in various districts. Not only that the plaintiff organization had to

expend a huge amount for running the cases at Tezpur and in Guwahati respectively.

That under the facts and circumstances, as stated herein above, the defendant

organization is legally bound to compensate the plaintiff organization for the losses,

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suffered for the reason of illegal, illogical and dishonest acts and activities by the

defendants. Thus, the present suit was filed with the following prayer:

(a) For realization of -

i) Rs.12 lacs for the financial loss, suffered by the plaintiff

organization from the defendants;

ii) For expenditure in proceedings - Rs.60,000/-;

iii) For mental pain and agony - Rs.40,000/-;

iv) For loss of loosing of 12 numbers of Branches -

Rs.6,00,000/-

(b) For interest @ 12% per annum on the decreetal amount with effect

from the date of judgment till full and final realization;

(c) Cost of the suit;

(d) Any other relief / reliefs as deemed fit and proper by the Court

Case of the Defendants:

(5) The defendants claimed that there is no cause of action & is barred by

the law of limitation. The plaintiff has instituted the suit claiming damages for alleged

malicious prosecution (CR No.1705/08) and the said case has been finally terminated

by an order dated 04-01-2012 by the Hon’ble Gauhati High Court passed in

connection with Criminal Petition No.185/2009. So, cause of action for the suit if any

arose on the date i.e. on 04-01-2012. As per the law of Limitation Act, 1963 the

plaintiff ought to have filed the suit within a year therefrom i.e. by 03-04-2013.

However, the plaintiff has field the suit beyond the date, so it is barred by limitation.

Due to such infructous suit the President and Secretary of the defendant society

have to visit Tezpur from Kokrajhar for five times so far, have to stay in a Hotel and

also have to engage advocate to contest the suit spending around Rs.50,000/- so far.

So, the suit is liable to be dismissed with compensatory cost of Rs.50,000/-.

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(6) The defendant society did not approach the plaintiff society for loan of

Rs.20,00,000/- & rather the Chief Executive Officer cum secretary of plaintiff society

Mr. Dhattaraya approached to the President and Secretary of the defendant society in

2007 and deceitfully convinced them to take loan from the plaintiff society with false

promise of so many attractive profits. He himself took initiative to open a Bank Pass

Book in the name of defendant society with Union Bank of India, Tezpur Branch.

After sanctioning the loan amount of Rs.16,75,000/, the plaintiff society released

Rs.10,00,000/- in favour of the defendant society on 28-12-2007 & immediately after

release of the said amount the Chief Executive Officer of the plaintiff society took

three self cheques, one for Rs.1,09,000/-, one for Rs.1, 23,000/- and another for

Rs.90,000/- from defendant society and he himself collected the cash from the cash

counter of the Bank on 31-12-07 and 01-01-2008. He said that said amount has been

adjusted by the plaintiff against the margin money, against the said loan amount @

12%, loan protection fund @ 2.5% loan processing charge @ 1.5 and the rest as a

cost of a second hand Weaving Machine supplied by him. It is submitted that in the

loan agreement no such charges or margin money has been mentioned. Besides that

weaving machine could not run for a single day and the same is still lying in the

office premises of the defendant society being defective. The president and secretary

of defendant society signed on many blank papers with a belief that the plaintiff

being a registered society could not defraud the defendant society. It is also

absolutely false that the defendant society delivered the plaintiff three numbers of

cheques towards the repayment of loan as stated herein above. It is submitted by

the defendant that at the time of loan procession the plaintiff society obtained those

blank cheques with signature without endorsing any amount and the plaintiff with

malafide intention converted those into a negotiable instrument. It was further

submitted that the Chief Executive Officer of the plaintiff society in the first week of

December’2007 approached the office of the defendant society accompanied by one

Jhangir Ahmed and Lalita Bala Brahma & these employees of the plaintiff society

were left there to provide some training. During their stay they worked in the

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defendant society for some official and non-official job. Those employees later on

stolen away some signed blank letter pad and blank signed cheques of the defendant

society, which has been used by the plaintiff in conspiracy of its Chief Executive

Officer for illegal gain.

(7) That last sanctioned loan installment of Rs.3,75,000/- (Rupees Three

Lakhs Seventy Five thousand) was released only on 04-04-2008 & therefore, nothing

happened which prevented the defendants to repay the whole loan amount by three

numbers of cheques dated 03-05-08 with letter of surrender of loan as stated. That

as regard the judicial proceeding referred by the plaintiff, it was denied that it was

without having any basis & while disposing of the Criminal Petition No.185/2009

Hon’ble High Court gave liberty to raise all those points in the CR Case. It is fact that

the complaint case has been compromised but not in the manner as stated by the

plaintiff therein. The plaintiff could not make the basis of compromise petition dated

04-06-2012 for the suit which has been signed by both the parties withdrawing the

allegations and counter allegations against each other. It was prayed that under the

given facts and circumstances the suit should be dismissed with cost and

compensatory cost of Rs.50,000/-.

(8) Upon perusal of the pleadings of both parties and hearing learned advocates

of both sides, the following issues are settled:

1. Whether there is any cause of action for the suit?

2. Whether the suit is maintainable?

3. Whether the suit is barred by limitation?

4. Whether the defendants were sanctioned an amount of Rs.16,75,000/- by the

plaintiff firm?

5. Whether the plaintiff is entitled to the relief/s as preyed for?

6. To what relief / reliefs the parties are entitled?

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(9) Plaintiff side examined Mr. Dhattatreya Hosagrahar, Secretary of IIRM as PW1

and exhibited some documents. Defendant-side also adduced evidence of one

witness.

DISCUSSIONS, DECISIONS & REASONS THEREOF –

(10) I have carefully perused the evidence, oral and documentary, and the

materials available on the case record and also heard argument of both sides. The

issues are discussed herein below individually, however, for sake of brevity and

proper adjudication they may not be discussed chronologically.

ISSUE NO.1: Whether there is any cause of action for the suit?

(11) Cause of action is a bundle of fact that one party claims and the other denies.

In the present suit the plaintiff claimed that due to the false case lodge by the

defendants the plaintiff suffered heavy losses in business and reputation, whereas,

the defendants denied the same and claimed that the case was never falsely lodged

and that the plaintiff never suffered any lose of reputation or financial lose due to the

defendants.

(12) Thus, it is seen that there is a cause of action and therefore issue no.1 is

settled in favour of the plaintiff.

ISSUE NO.2: Whether the suit is maintainable?

(13) None of the parties forwarded any argument on this issue however, for proper

adjudication I have gone through the pleadings and the materials available on record

and failed to find any reason, which makes the suit not maintainable. Hence, issue

no.2 is settled in favour of the plaintiff.

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ISSUE NO.3: Whether the suit is barred by limitation?

(14) This issue was settled as the defendant challenged that the suit is time-

barred.

Argument Forwarded By Both Sides:

(15) Ld. Counsel for the Plaintiff argued that the suit is for loss faced by the

plaintiff company because of the different litigations between the plaintiff and the

defendants and more specifically for damages for business loss. Thus, it is time

barred. On the other hand, Ld. Counsel for the defendants argued that the suit is

actually for malicious prosecution but as it has become time-barred the plaintiff has

tried to give it an image of damages. If it is actually for damages then what kind of

damage is it that makes it not barred by limitation?

My Opinion:

(16) I have given the arguments forwarded by both sides due consideration. The

term ‘damages’ can be understood as the monetary compensation payable to the

aggrieved party by the party at fault for the loss suffered by him. However, damages

can be under the contract or under tort. The difference between the tort and contract

is that in a tort case, the court awards compensation for what losses the plaintiff

would have avoided has the incident not happened and in a contract action, the court

considers what are the benefits the plaintiff would have gained had the contract been

completed. As could be understood from the nature of the plaint and its content that

the damages claimed falls under tort. Perusal of the Limitation Act shows that suits

relating to torts is covered under Part-VII. It is further seen that the plaint is not very

clear as to what kind of damages it is claiming but on combined reading with the

Limitation Act shows that it is in the nature of damages due to malicious prosecution

as the plaintiff claimed that due to the false case filed by the defendants the plaintiff

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faced loss of image and buisness. Thus, the limitation period for this suit is covered

under Article 74 of the Limitation Act, which is 1 year.

(17) Perusal of record revealed that the plaintiff beyond 1 year has filed the suit

and no condonation was also sought for the delay. Thus, it is amply clear that the

suit is barred by limitation. Hence, issue no.3 is settled against the plaintiff.

ISSUE NO.4: Whether the defendants were sanctioned an amount of

Rs.16,75,000/- by the plaintiff firm?

Argument Forwarded By Both Sides:

(18) None of the parties forwarded much argument on this issue, except for the

plaintiff claiming that they have sanctioned Rs.16,75,000/-, which was denied by the

defendants and they claimed that the loan document was for only Rs.10,00,000/-

then how & why will the plaintiff sanction more then the agreement.

My Opinion:

(19) I have heard both sides carefully and also gone through the materials

available on record. It is seen that though the plaintiff claimed in the plaint that the

defendant society approached the plaintiff for sanctioning a loan amount to

Rs.20,00,000/- and the plaintiff sanctioned an amount of Rs.16,75,000/- to the

defendant society. However, perusal of the documents submitted by the plaintiff

shows that the loan documents has not been submitted in the case and therefore, it

is not possible to determined whether Rs. Rs.16,75,000/- was sanctioned by the

plaintiff to the defendants or not. Moreover, when there is documentary evidence

regarding the same oral evidence cannot be relied upon.

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(20) Thus, in view of the above discussion I hold that the plaintiff failed to prove

that it sanctioned Rs.16,75,000/- to the defendants. Hence, issue no.4 is settled

against the plaintiff.

ISSUE NO.5: Whether the plaintiff is entitled to the relief/s as prayed for?

ISSUE NO.6: To what relief / reliefs the parties are entitled?

(21) In view of the above discussions, it is seen that the plaintiff’s stand is the suit

is for loss of buisness by the plaintiff due to the cases lodged by the defendant and

not a suit for damamges for malicious prosecution but, however while discussing

prior issues it revealed that the suit is infact that for damages for malicious

prosecution and also barred by limitation. Thus, under the given circumtances, I am

of the opinion that the plaintiff is not entitled to the relief/s as prayed for. I am also

of the opinion that none of the parties is entitled for any other relief/reliefs. Thus,

issue no.5 & 6 are settled accordingly.

ORDER

THE suit is accordingly dismissed without cost. Prepare a decree accordingly.

Given under my hand & seal of the Court on the 23rd of May’2017.

(Munmun B.Sarma)

Civil Judge

Tezpur, Sonitpur

Dictated and corrected by me.

(Munmun B.Sarma)

Civil Judge

Tezpur, Sonitpur

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Dictation taken and transcribed be me:

(J. K Muru)

Steno.

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APPENDIX

Plaintiff Witness:

i) PW1 Sri Dhattatreya Hosagrahar, Secretary of plaintiff

Plaintiff Exhibits:

i) Ext.1 – Resolution of Board of Directors dated 26-12-2007

ii) Ext.1(1) – Signature of Jamuna Basumatary

iii) Ext.1(2) – Signature of Basumati Brahma

iv) Ext.2 – Cheuqe bearing No.002277 dated 03-05-2008

v) Ext.2(1) to Ext.6(1) – Signature of the Chairperson

vi) Ext.2(2) to Ext.6(2) – Signature of the Secretary

vii) Ext.3 & 4 – 2 Cheuqes dated 03-05-2008

viii) Ext.5 & 6 – Payment vouchers dated 08-01-2008 & 28-12-2007

ix) Ext.7 – Memorandum of dishonour of Cheque dated 06-05-2008

x) Ext.8 –Notice u/s 138 NI Act sent by advocate Sudesh Kr. Singh

xi) Ext.8(1) – Signature of advocate Sudesh Kr. Singh

xii) Ext.9 – Letter from the defendant to the plaintiff dated 03-05-2008

xiii) Ext.10 – Certified copy of order passed CR No.439/2008 dt. 04-06-2012

xiv) Ext.11 – Certified copy of order passed by the Hon’ble Gauhati High Court in

Cri. Ptn No.185/2009 dated 04-01-2012

xv) Ext.12 – Certified copy of initial order passed by the court of the CJM,

Kokrajhar in case No. 1705 C/2008 u/s 418/420/381/109 dated 04-10-2008

xvi) Ext.13 – Certified copy of order passed by the court of the CJM, Kokrajhar in

case No. 1705 C/2008 dated 06-03-2009

xvii) Ext.14 to 27 –Statement of Accounts of different bank accounts of plaintiff

xviii) Ext.28 to 30 – Auditors report of CA for 2007, 2008 & 2009

xix) Ext.31 –Software licence agreement maintenance terms

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xx) Ext.32 & 33 – list of staff

xxi) Ext.34 – House rent agreement

xxii) Ext.35 – Letters from WEB India to the plaintiff about sanctioning loan

xxiii) Ext.36 to 38 – Letter of sanctioning term loan from Axis Bank, Tezpur

xxiv) Ext.39 to 42– Letter of sanctioning credit facility HDFC Bank, Guwahati

xxv) Ext.40 – Letter of sanctioning credit facility ICICI Bank, Tezpur

xxvi) Ext.41 – Letter of sanctioning credit facility ICICI Bank, Kolkata

xxvii) Ext.42 – Letter of sanctioning term loan UTI Bank Ltd. Guwahati

xxviii)Ext.43 – Letter from NEDFC Ltd. to the plaintiff

xxix) Ext.44 – Letter of sanctioning credit facility Axis Bank, Tezpur

xxx) Ext.45 – Letter of cash credit facility from Axis Bank, Tezpur

xxxi) Ext.46 – Letter of disbursement of loan from SID bank of India

Defendant Witness:

i) DW1 - Smt. Baumati Bramah

Defendant Exhibits: None

(Munmun B.Sarma)

Civil Judge

Tezpur, Sonitpur