IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No.347 of 2007 Reserved on:20.6.2008 Date of decision: 7.7.2008 ______________________________________________________ Madan Lal Sharma Appellant. Versus Bobcards Limited Respondent. Coram The Hon’ble Mr. Justice V.K.Ahuja, J. Whether approved for reporting1? No For the appellants: Mr. Baldev Singh, Advocate. For the respondent: Mr.Anuj Gupta, Advocate. V.K.Ahuja, J. This order shall dispose of the question at this stage as to whether Regular Second Appeal under Section 100 CPC filed by the appellant against the judgment and decree of the Court of learned District Judge, Shimla dated 26.6.2006 upholding the judgment of the learned trial Court, deserves to be admitted for hearing or not. A notice for admission was issued to the respondent. I have heard the learned counsel for the parties and have gone through the record of the case. Briefly stated, the facts of the case are that the respondent had started a credit card scheme for the casual credit advance facility of the nature of withdrawal of cash from any of its branches. Accordingly “bob card” was issued in favour of the appellant/defendant on his application, on 19.11.1995. The defendant agreed to abide by the terms and conditions. The Whether the reporters of Local Papers may be allowed to see the Judgment? Yes 2 plaintiff availed the said facility and withdrew certain amount but it was not paid in spite of demand hence the suit for recovery of Rs.2,48,343.08 filed by the respondent/plaintiff as against the defendant along with future service charges and interest. The suit was tried by the leaned trial Court which decreed the suit in full. On appeal, the findings were upheld by the learned first appellate Court which reduced the future rate of interest to 18% per annum. Being aggrieved, the defendant/appellant has come up in second appeal. The findings of the learned appellate Court as well as the learned trial Court have been assailed by the appellant on various grounds including that the suit was not maintainable. The plaintiff had not proved that the defendant had made payment of Rs.1000/- on 25.6.1997 and, as such, the suit was not filed within time and that the Learned trial Court had ignored the evidence led by the defendant while deciding some of the issues and, as such, the impugned judgment and decree are liable to be set aside. Along with the appeal, the appellant has proposed seven substantial questions of law as at page 8 of the paper book and these are mainly as to whether there was non-consideration of oral as well as documentary evidence and there was mis-reading of document Ex.PF. Other substantial questions of law framed were that the suit was barred by law of limitation and, as such, was not maintainable and as to whether the suit was filed by a competent person. A perusal of the judgment of both the Courts below shows that they had concluded that the defendant had executed the documents and had accordingly availed the facility of Bob Card. The plaintiff had also alleged that the defendant made payment of Rs.1,000/- on 25.6.1997 and, as such, the suit was within time. During the course of arguments, no specific document has been 3 referred which was not considered by both the Courts below. In regard to document Ex.PF referred to in grounds of appeal, which is a statement of account, it has been referred to in its judgment by the learned first appellate Court as well as learned trial Court in coming to its findings. Once the document has been considered by both the Courts below, it cannot be said that the said document which is only a statement of accounts, needs to be considered by this Court as to what it conveys or what conclusion could have been drawn from this document which is only a statement of account. Coming to the allegation in regard to the plea of limitation, both the Courts below have referred to the evidence in this behalf, regarding the deposit of the payment of Rs.1000/- on 25.6.1997. Once it was proved that this payment was made by the defendant, it was for the defendant to rebut that this payment was not made by him which does not give a period of limitation to the plaintiff and it was not for the plaintiff to have proved this transaction since the amount was tendered on behalf of the defendant and it was for the defendant to explain about the same. Both the Courts below have discussed the evidence in regard to deposit of this amount and after that concluded that the suit was within time. From the above discussion, it follows that no substantial question of law arises from the arguments advanced at the Bar calling for re-appraisal of the evidence by this Court sitting in second appeal and I accordingly hold that there is no merit in this appeal, which is dismissed accordingly. Parties are left to bear their own costs. 7th July, 2007 (V.K.Ahuja),J. (sds)