R.S.A. No. 4092 of 2006 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 4092 of 2006 (O&M) Date of decision: 11.11.2008 Arun Kumar and another ..Appellants v. Amarjit Kaur .. Respondent CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. S.S. Walia, Advocate for the appellants. Mr. P. L. Singla, Advocate for the respondent. .. Rajesh Bindal J. The defendants are in second appeal before this Court against concurrent finding of fact by both the courts below, whereby the suit filed by the respondent-plaintiff for recovery of Rs. 1,72,000/- (Rs. 1,00,000/- on account of principal and Rs. 72,000/- on account of interest from 1.5.1998 till the date of decree) was decreed to the extent of recovery of Rs. 1,00,000/- along with interest @ 9% per annum from the date of writing, i.e., 1.5.1998 till the date of decree and future interest @ 6% per annum. Briefly, the facts are that the respondent-plaintiff filed a suit for recovery of the aforesaid amount which was advanced as loan to the appellants on 1.5.1998. The receipt of the amount was acknowledged by appellant No.1. As a token thereof, on the letter head of appellant No.2-firm the receipt was signed. Both the courts below found that the receipt was a genuine document which contained the signatures of appellant No.1 and the consideration was passed on to him and accordingly, the suit was decreed. Learned counsel for the appellants submitted that the document on the basis of which the respondent-plaintiff claimed the amount from the appellants-defendants, i.e., Ex. P21, is in the form of a Hundi which only carries revenue stamp of Re. 1/-. As it was under stamped keeping in view the provisions of Section 35 of the Indian Stamps Act, 1899, the same could not be relied upon for the purpose of decreeing the suit of the respondent-plaintiff, as in the exception clause thereof, documents, i.e., bill of exchange and promissory note are excluded which are not admissible even after payment of penalty for its being under stamped initially. He referred to a judgment of this Court in Sukhwant Rai R.S.A. No. 4092 of 2006 v. Mr. Kalu Ram Khiali Ram, 1991 (2) RRR 441. On the other hand, learned counsel for the respondent-plaintiff submitted that the finding recorded by the learned courts below are plain and simple findings of fact, wherein it was opined that the document in question was not a Hundi but merely a receipt. He further referred to the stand of the appellants- defendants in the written statement filed in response to the plaint, where it was categorically stated that alleged writing (Ex. P21) dated 1.5.1998 does not fall within the definition of documents “Hundi”, “pronote” or “bill of exchange”. However, before the lower appellate court, the stand was sought to be changed by stating that the document in question was a “Hundi” and the same was not admissible in evidence being under stamped. He further submitted that even a perusal of the document shows that it was merely a receipt. Mentioning of words “Hundi” at one place does not make it a “Hundi”. It was a simple loan transaction between the parties and no business transactions between the two businessmen. He referred to an order passed by this Court in R.F.A. No. 1575 of 2007 –Romesh Chander Jhanji v. Anurag Aggarwal and others, decided on 5.7.2007, where under similar circumstances in appeal where a similar document was held to be mere an acknowledgement was dismissed. Further reference was made to a judgment of Hon'ble the Supreme Court in Vidhyadhar v. Mankikrao and another, AIR 1999 SC 1441 to submit that in the present case, appellant No.1, after tendering his affidavit in evidence did not present himself for cross-examination and for that reason adverse inference should be drawn against him. Heard learned counsel for the parties and perused the record. The fact that initially in the written statement filed, the appellants had taken the stand that document (Ex. P21) was not a “Hundi”, “pronote” or “bill of exchange” is not denied. The trial court specifically considered the entire evidence including the report of Handwriting Expert who opined that document (Ex. P21) contained signatures of appellant No.1. Accordingly, the execution thereof was fully established. The affidavit produced by appellant No.1 in evidence was not considered for the reason that he had not presented himself for cross-examination. Accordingly, it was a case of no evidence in defence. In the lower appellate court, the stand was sought to be changed with the plea that the document in question was a Hundi. However, considering the material on record, even the lower appellate court found that the same was not Hundi and also that the stand sought to be taken by the appellants before the lower court below was totally in contradictory to the written statement filed. Even a perusal of the document shows that it was a loan transaction between the parties for which the accounts were to be R.S.A. No. 4092 of 2006 settled at two crops. In my view, the findings recorded by both the courts below are plain and simple findings of fact giving rise to no question of law, much less a substantial question of law. Accordingly, the appeal is dismissed. (Rajesh Bindal) Judge 11.11.2008 mk