R.S.A. No. 535 of 2007 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH R.S.A. No. 535 of 2007 (O&M) Date of Decision : 23.4.2009 Yadwinder Singh .......... Appellant Versus Harpreet Singh ...... Respondent CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. G.S. Sandhu, Advocate for the appellant. None for the respondent. **** VINOD K. SHARMA, J. (ORAL) C.M. No. 5434-C of 2008 This is an application under Section 5 of the Limitation Act for condoning the delay of 128 days in filing the application for recalling of order dated 10.12.2007 In spite of notice, nobody has put in appearance on behalf of non-applicant. The averments made in the application, which are supported by an affidavit, therefore, remain unrebutted. The C.M. is allowed. The delay of 128 days in filing the application for recalling the order dated 10.12.2007, is condoned. R.S.A. No. 535 of 2007 2 C.M. No. 5435-C of 2008 In spite of notice, nobody has put in appearance on behalf of non-applicant. The averments made in the application, therefore, are deemed to be admitted, which are supported by an affidavit. Consequently, the C.M. is allowed. The order dated 10.12.2007 is recalled and the case is restored to its original number. R.S.A. No. 535 of 2007 This regular second appeal is directed against the judgment and decree dated 15.9.2006 passed by the learned Courts below vide which suit filed by the plaintiff / respondent for recovery of Rs. 2,60,000/-, stands decreed. The plaintiff/ respondent brought a suit on the plea that the defendant / appellant borrowed a cash loan of Rs. 1,50,000/- from him and executed a pronote and receipt on 9.12.2000. However, he failed to repay the amount or interest in spite of repeated requests. The defendant/ appellant appeared and denied the receipt of loan and also the execution of the pronote and receipt. The plaintiff / respondent proved the due execution of the pronote as well as the receipt. The suit stands decreed by the learned Courts below, by recording a concurrent finding of fact, that the loan amount was advanced to the defendant / appellant, and that he has not repaid the same. The learned counsel for the appellant contends that the appeal R.S.A. No. 535 of 2007 3 raises the following substantial questions of law for consideration :- 1. Whether the loan transaction in cash beyond Rs. 20,000/- could be entertained ? 2. Whether the judgments and decree passed by the learned Courts below are outcome of misreading of admissible evidence and taking into consideration inadmissible evidence, thus, perverse ? In support of the substantial questions of law, the learned counsel for the appellant contends, that the amount beyond Rs. 20,000/- could not be advanced in cash, in view of the bar contained under Section 269-ss of the Income Tax Act, therefore, the documents i.e. pronote and receipt, were inadmissible in evidence. The amount of more than Rs. 20,000/- was required to be paid by way of account payee cheque or draft. It is contended by the learned counsel for the appellant that the substantial questions of law be answered in favour of the appellant. On consideration of the matter, the contentions raised by the learned counsel for the appellant cannot be accepted, in view of proviso to Section 269-SS of the Income Tax Act. It was not proved, that the parties were income tax payee or acted under the Act to attract the provisions of Section 269-SS of the Income Tax Act, as contended. Section 269-SS of the Income Tax Act was not applicable to the facts of the case. The substantial questions of law raised, do not arise in this R.S.A. No. 535 of 2007 4 appeal. There is no merit in this appeal, which is accordingly ordered to be dismissed in limine. 23.4.2009 ( VINOD K. SHARMA ) 'sp' JUDGE