R.S.A No. 3379 of 2005 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -.- R.S.A No. 3379 of 2005 (O&M) Date of Decision:- 15.5.2009 Gursewak Singh .... Appellant. Versus Gurcharan Singh .... Respondent. Present:- Mr. R.K.Brar, Advocate for the appellant. Mr. Inderjeet Singh Brar, Advocate, for the respondent. A.N.Jindal, J. This is plaintiff's second appeal against the judgment and decree dated 1.4.2005 passed by Additional District Judge, Faridkot accepting the appeal of the defendant and dismissing the suit of the plaintiff- appellant (hereinafter referred to as the 'plaintiff') for recovery of Rs.68,000/-. The factual matrix of the case is that defendants after taking a loan of Rs.50,000/- from Gursewak Singh on 25.7.2001 on interest @2% per month executed a promisory note and receipt in that regard. Non- payment of the loan, compelled the plaintiff-appellant to file a suit against the defendant-respondent (herein referred to as the defendant) The defendant while admitting the receipt of a loan of Rs.50,000/- from the plaintiff on 25.7.2001, specifically pleaded that he had subsequently returned the same along with interest on 19.11.2002 to Assa Singh father-in-law of the plaintiff in the presence of witnesses against a receipt issued by him. Replication was also filed. From the pleadings of the parties, following issues were framed:- R.S.A No. 3379 of 2005 2 1. Whether the defendant borrowed a cash loan of Rs. 50,000/- from the plaintiff and executed a promissory note and receipt in his favour dated 25.7.2001?OPP 2. If issue No.1 is proved, whether the plaintiff is entitled to the recovery, if so, at what rate of interest?OPP 3. Whether the suit of the plaintiff is not maintainable in the present form?OPD 4. Relief. The trial Court decided all the issues in favour of the plaintiff and decreed the suit. However, the appeal filed by the defendant-respondent (hereinafter referred to as the 'defendant') was accepted and the appellate Court while believing the receipt Ex.DW-1, observed that the plaintiff was returned the amount and dismissed the suit. The substantial question of law which arises in this case is:- "whether the payment received by Assa Singh vide Ex. DW-1 could be treated as payment to the plaintiff Gursewak Singh against the loan amount?" The parties are not at variance that plaintiff advanced loan to the defendant to the tune of Rs.50,000/- and in view of that Ex.P-1 was executed in favour of respondent. Specific plea set up by the defendant is that he had returned the loan amount to Assa Singh, who had received the same on behalf of the plaintiff. There is also no dispute with regard to the fact that Assa Singh is the father-in-law of Gursewak Singh-plaintiff. Both the defendant and Assa Singh reside in the same village i.e. Madhak, Tehsil Jaitu, District Faridkot, R.S.A No. 3379 of 2005 3 whereas plaintiff is a resident of Village Guri Sangar, Tehsil Gidderbaha, District Mukatsar. The defendant has tried to persuade this Court by urging that money was returned to Assa Singh on the instructions of the plaintiff. But it is difficult to believe; if the said payment was paid by the defendant to Assa Singh on his instructions. Only witness to prove the receipt Ex. D1 is Jarnail Singh. He has made funny statement which stating in his cross- examination that Gurcharan Singh had not taken any money from Gursewak Singh and he did not know the plaintiff. There is also no denying of fact that pronote Ex.P1 and receipt Ex.P2 were never returned to plaintiff and he even declined for not returning those documents regarding which the money is alleged to have been returned. The defendant remained silent for more than one year till the filing of suit on 21.12.2002 regarding the return of promissory note. Had he made the payment, there must have protested regarding non-return of promissory note from Gursewak Singh and would have taken up the matter with the police or the Court. In the absence of such evidence, silence is good evidence against the defendant that he did not make any payment to the plaintiff. While examining the case from another angle, it may be observed that Assa Singh was never authorised by the plaintiff to receive the payment. He was neither his general attorney nor his representative to receive the amount. No written communication in between Gurcharan Singh and the plaintiff has been brought on record indicating that the latter was authorised to receive the amount from the defendant on his behalf. Assuming that Gurcharan Singh defendant had paid any amount to Assa Singh, in that situation, the same having been paid to an unauthorised R.S.A No. 3379 of 2005 4 person would not amount to be a valid payment in the eye of law. No evidence has been led on the record that if Assa Singh had ever handed over the amount of Rs. 68, 000/-, as received by him from Gurcharan Singh, to the plaintiff. Assa Singh has not been examined by the defendant in order to establish if he had received the money from him. The First Appellate Court appears to have relied upon assumptions and presumptions to come to the conclusion regarding the return of the loan amount by the defendant. As such, interference by this Court in the impugned judgment has become inevitable. The substantial question of law as formulated above is decided in favour of the appellant and against the defendant-respondent. Resultantly, while reversing the finding returned by the Lower Appellate Court on issue Nos. 1 and 2 the same are decided in favour of the plaintiff. As an aftermath of the aforesaid discussion, I accept the appeal and set aside impugned judgment and decree. The suit of the plaintiff is decreed for a sum of Rs.68,000/- along with future interest @6% per annum from the filing of the suit till realization of the decretal amount in favour of the plaintiff and against the respondent with costs. May 15, 2009 (A.N.Jindal) tripti Judge