DISTRICT- HAILAKANDI

IN THE COURT OF CIVIL JUDGE ::::::::::::::::::::: HAILAKANDIddi

Money Execution No.11/2019
Siraj Uddin Barbhuiya………………..Decree Holder
Versus
Sorof Uddin Laskar…………………..judgment Debtor

IN THE MATTER OF :
An application file by the
applicant/ defendant under
section 47 of the civil procedure
court for stay of the execution
case Money Execution
No.11/2019 .

AND -

IN THE MATTER OF :
Sorof Uddin Laskar,
Son of late Tojomul Ali Laskar,
Resident of Vichingcha part-I,
PS & Dist:Hailakandi,
……………………
Applicant/Defendant .

The humble petition of the applicant above named

MOST RESPECTFULLY SHEWETH:
1. This is an application file by the applicant/defendant An
application under section 47 of the civil procedure court for
stay of the execution case Money Execution No.11/2019 In
the judgement dated 26th july, 2019 passed in Money suit
No.16/2016.
2. That the brief facts of the case is that the plaintiff filed the
instant money suit stating interalia that the defendant
borrowed a sum of Rs.3,00,000/- from the plaintiff on
03/06/2014 by executing a hand note on condition to repay
the same to plaintiff on his dimand . The plaintiff pleaded
that on 02/02/2015, on 05/08/2015 and thereafter on
10/02/2016 he demanded the defendant to repay his
money , but the defendant did not repay his money. The
plaintiff stated that thereafter he issued notice to the
defendant on 19/04/2016 through registered post with A.D.
But the respondent did not take any steps to repay his
money. Hence, the plaintiff prayed for(i)recovery of
Rs.3,00,000/- from the defendant, (ii) other relief(s) as
plaintiff entitled under the law and equity.

3. The defendant contested the suit by filing written statement.

The defendant denied all the allegations levelled against him
by the plaintiff. The defendant stated that there is no cause
of action for filing the suit, that the suit is not maintainable .
The defendant stated that though the plaintiff claimed
Rs.30,000-/ from the defendant , but his document did not
convey any such transaction with date and stamp duty.
4. The defendant’s case was that he borrowed a quantum of
money from the plaintiff purchased a plot from the
defendant in exchange of that money and the defendant
executed a sale deed in favour of the plaintiff in a higher
price than the money borrowed by him from the plaintiff.
The defendant, stated that thereafter too , the plaintiff had
taken money from him, but the defendant on good faith , did
not take any written acknowledgement from the plaintiff.
The defendant stated that the plaintiff, due to non-
availability of his previous document at his hand, instantly
executed a note of receipt of the borrowed money through
transfer of land. The defendant stated that after a few
month of transfer of land. The defendant stated that after a
few month of transfer of land while the plaintiff failed to pay
the remaining balance amount of the land to the defendant ,
the defendant orally demanded the plaintiff to pay the
balance amount. The defendant stated that in fine, the
plaintiff offered the defendant to repurchase the said land
from him and accordingly the defendant , on compelling
circumstances, agreed to repurchase the said land. The
defendant stated that the plaintiff had received money from
the defendant by executing an agreement and thereafter on
further need of money the plaintiff borrowed more money
from the defendant by executing memorandum on stamp
paper. The defendant stated that the plaintiff thereafter sold
the said land to some other person by executing a sale deed
and thereby cheated the defendant. The defendant stated
that to get rid of his liability towards the defendant, the
plaintiff filed the instant suit falsely. The defendant stated
that regarding the incident of selling the land to some other
person, the defendant filed a criminal case against the
plaintiff. Hence the defendant prayed for dismissal of suit of
the plaintiff.

5. That the learned counsel for the plaintiff verbally stated

that back bone of the suit is exhibit 1 i.e. one hand note.
Moreover, learned counsel for plaintiff stated that signature
on hand note by defendant side is admitted fact. But , only
defence plea was that exhibit 1 was not admissible as liability
on the basis of same was discharge from the side of
defendant by execution of sale deed in favour of plaintiff.
Moreover, DW1 admitted his signature along with his
contents. But, defendant side failed to exhibit anything to
show that their burdened in terms of exhibit-1 is discharged.
IN THE COURT OF ASSISTANT DISTRICT JUDGE, HAILAKANDI.

Money Appeal No. /2023

IN THE MATTER OF:

Sorof Uddin Laskar,

Son of late Tojomul Ali Laskar,
Resident of Vichingcha Part-I,
PS & Dist:Hailakandi

......Appellant/Defendant.

-Versus-
 Sri Dhaneshwar Singha

S/O-Late Bhanu Singha

Village- Nimachandpur Part-I.

P.S.- Lala. District- Hailakandi,

Assam.

PIN

.......Respondent/plaintiff.

A money appeal under section 96 of the Civil

Procedure Code, 1908 filed by the appellants/
defendants above named against the judgment and
decree dated 11.05.2016 passed in Money Suit No.
18/2014 by the Learned Civil Judge, Hailakandi
decreeing the suit with cost.

(The appeal valued at Rs. 3, 68.000 (Three hundred sixty-eight only)

likewise the original suit) & according adrolecion count feee Rs. 4960 is
given. Being highly aggrieved by and dissatisfied with the judgment and
decree dated 11.05.2016 passed in Money Suit No. 18/2014 by the
Learned Civil Judge, Hailakandi, the appellant/ defendant prefer this
money appeal on the following grounds: -

-GROUNDS-
1. For that the reason given and the findings arrived at while decreasing
the suit is not based on facts and materials on records. As such, the
same is liable to be set-aside and quashed.
2. For that the learned Court failed to appreciate the case of the
appellant/defendant as a result came to erroneous findings while
deciding the issues of the original suit.
3. For that the learned Court below failed to shift the evidence on
records in true prospective of the case, as a result, came to perverse
findings. As such, the judgment and the decree dated 11.05.2016
passed in Money Suit No. 18/2014 by the Learned Civil Judge,
Hailakandi, is liable to be set aside.
4. For that the learned Court below failed to appreciate the entire exhibit
proved in this case but resorted to pick and choose policy and there by
illegally decreed the suit against the settled provisions of law. As such,
the entire judgment and decree is liable to be set aside.
5. For that the Learned Court below has totally erred in Law in dealing
with the case regarding "Hand Note". A hand note is not a legally
enforceable documents. It is the "Promissory Note" as provided under
section 4 of the N.I. Act is legally enforceable note. There are 4 (Four)
specific criteria are to be fulfilled an holder of a Promissory Note take
claim on such note. No such decision has been made by the Learned
Court below. Hence the finding is not sustainable in the eye of law and
the same is liable to be set aside and quashed.
0. For that the so call hand note" is neither a promissory note noi an age
comment therefore, the said finding of the learned Court below itself is
not maintainable in the eye of law.
7. For that the learned Court below ought to have decided all the issues
separately instead of deciding issues issue No-6 and 3 jointly in a
criptive manner against the provision of order XX of the CPC.
8. For that the learned Court below ought to have considered that it is
not open for Court to compare handwriting and/ or a signature of its
own, services of experts are liable to be taken to this purpose. As such,
the impugned judgment and decree is bad in law and the same is liable
to be set aside and quashed.
9. For that the learned Court below ought to consider the prayer of the
defendant/ appellant for deciding the signature to the Forensic expert
and non-consideration of the same passing the impugned judgment and
decree cause serious prejudice to the appellant. As such the same is
liable to be set aside and quashed.
10. For that the plaintiff/ Decree holder could not clarify whether the
particulars and instrument is a promissory note or an unregistered
agreement and therefore the decree holder can enforce such ambiguous
instrument.
11. For that the learned court below ought to have consider the ability
and capacity of the source of such alleged payment of decreed amount
by the plaintiff in as much as whether the plaintiff is an income tax
payee. As such the findings of the learned court below is not sustainable
in the eye of law.

Certificate
Certified that the ground s stated here in this appeal are good grounds
for filling this appeal. The appellants beg to undertake to support the
same at the time of hearing of this appeal

AFFIDAVIT
1, Sri Buddha Chandra Singha, S/0-Late Chaikal Singha, aged about...-
55 years, R/O-Village- Purbo Kittarbond, P.S.- Lala in the District of
Hailakandi, Assam, Service by profession, do here by solemnly affirm
and declare as follows
1. That I am the appellant in the instant case, as such, I am acquainted
with the facts and circumstances of the case.
2. That the statements made in this affidavit and those made in
paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, and 11, are true to my
knowledge which I believe to be true and rest are my humble
submissions and prayer before this Hon'ble Court.

"OATH"
I swear that this declaration is true, that it conceals nothing and that no
part of it is false. So, help me GOD.

I signed this affidavit on this the...day of October/2016 at Guwahati.

Identified by

Advocate's Clerk.

DEPONENT