IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 238 of 2008 Date of decision: 9th December, 2008 Paramjit Singh … Appellant Versus Ajit Singh Saggi … Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Divjyot Singh Sandhu, Advocate for the appellant. KANWALJIT SINGH AHLUWALIA, J. On November 10, 2008, this Court had passed the following order: “Present: Mr. Divjyot S. Sandhu, Advocate for the appellant. On the last date of hearing, learned counsel stated that the debt in the present case was acknowledged on 23.1.1996 and the suit was filed on 23.1.1999 and thus, the suit was barred by time. Not a single whimper was raised before the two Courts below. Quizzed by this, I called for the calendar observed by the Civil and Criminal Subordinate Courts in the State of Punjab. It surfaced that in the year 1999, 22.1.1999 was holiday being Basant Panchami. Therefore, the suit had been filed within time and that is why no argument was raised before the two courts below. At this stage, learned counsel for the appellant states that cost of Rs.300/- was awarded and the same was not paid. This objection was taken in the written statement and accordingly issue No.7A was formulated. Learned counsel further states that learned trial Court have examined this issue Regular Second Appeal No.238 of 2008 in para 22 of the judgment, a perusal of the same reveal that learned trial Court has stated that on the day when cost was to be paid, adjournment was sought for filing of written statement and several other orders were passed lateron till the written statement was filed with this objection. Whether the same will tantamount to waiver or not?, learned counsel wants to address the arguments. Adjourned to 17.11.2008.” Two arguments had been raised before me that suit was barred by limitation and secondly the suit of the respondent plaintiff was dismissed, same was ordered to be restored on an application filed by the respondent plaintiff subject to payment of cost of Rs.300/- and the same was not paid, therefore, the suit ought to have been dismissed. The first argument, on facts, as noticed in my order, is not available, as 22nd January, 1999 was a local holiday in the district Kapurthala. Second argument is also liable to be rejected in view of the law laid down in “Prem Sagar and others v. Phul Chand and others” 1983 PLR 797, wherein a Full Bench of this Court has held as under: “16. To conclude, both on principle and precedent, as also on the language of Section 35-B, the answer to the question posed at the very outset is rendered in the negative. It is held that the party defaulting in the payment of costs on the date fixed for the payment thereof (on which date this issue is not at all raised) cannot on subsequent date or dates be barred afresh from further prosecuting the suit or the defence, as the case may be.” Since the two arguments raised before me stand rejected and the appeal is to be dismissed, it is necessary to notice brief facts of the case. In the present case, suit was filed by Ajit Singh through his Attorney, Raj Kumar for recovery of Rs.4,71,570/- on the basis of 2 Regular Second Appeal No.238 of 2008 agreement dated 23rd December, 1996. The case set out in the plaint was that defendant approached and obtained a loan for Rs.62,000/- for domestic requirement. The loan was paid on 12.11.1992 and rate of interest fixed was one percent. Thereafter, again amount of Rs.2.00 lacs was borrowed at the same rate of interest. In all, Rs.2,62,000/- were taken as loan and four cheques were issued by the defendant. Cheques were presented and they bounced. Plaintiff approached the defendant on 28.12.1994. Appellant defendant executed an agreement in the presence of witnesses and undertook to pay Rs.3,06,000/- in monthly installments of Rs.5,000/- each. The payment was not made. Another agreement was executed on 23.01.1996 by the appellant defendant in presence of the witnesses and the amount acknowledged was Rs.3,28,920/- and half yearly installments of Rs.25,000/- each was to be paid. The first installment was to be paid on 30th June, 1996. Since no amount was paid, therefore, suit was filed. Defendant appeared, denied having taken Rs.62,000/- as loan, admitted issuance of cheques but stated that the suit and the amount of cheques is barred by time. Court examined the issues raised. Court placed reliance upon testimony of Charanjit Singh Walia and Arun Khosla, PW-1 and PW-2 respectively. Plaintiff himself appeared as PW-3. Defendant, despite various opportunities given, could not examine any witness and his evidence was closed by the orders of the Court on 8th June, 2006. Court believed in the evidence led by the plaintiff, dealt with the plea regarding non-payment of the cost and decreed the suit and held plaintiff entitled to recovery of Rs.2,62,000/- along with interest at the rate of one percent per month. Defendant had filed an appeal. The appellate Court concurred with the findings recorded by the trial Court. Plea of limitation and non- payment of cost was also rejected. 3 Regular Second Appeal No.238 of 2008 Since as a prelude to this judgment, I had noticed two contentions and had rejected the same, as stated earlier, in view of the fact that there was a local holiday on 22nd January, 1999, therefore, the suit was filed on 23rd January, 1999 and was within limitation and the law enunciated by the Full Bench also demolishes the argument that non-payment of cost was sufficient for dismissal of the suit, even though on subsequent dates proceedings of the suit continued, being untenable in view of the observations made by Full Bench of this Court. Therefore, there is no merit in the present appeal and the same is dismissed. (Kanwaljit Singh Ahluwalia) Judge December 9, 2008 rps 4