R.S.A. No.2188 of 2006 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** R.S.A. No.2188 of 2006 Date of Decision:31.10.2008 Hari Singh .....Appellant Vs. M/s Ekta Commission Agent, Tibbi Khurd, Tehsil and District Ferozepur through its partners .....Respondents CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present:- Mr. L.S. Sidhu, Advocate for the appellant. **** HARBANS LAL, J. This appeal is directed against the judgment/ decree dated 17.3.2006 passed by the Court of learned District Judge, Ferozepur whereby he dismissed the appeal preferred against the judgment/ decree dated 2.6.2005 rendered by the Court of learned Civil Judge (Junior Division), Ferozepur, whereby he dismissed the suit. The facts which form the backdrop of the suit are that the defendant- firm had borrowed a sum of Rs.1 lac from the plaintiff on 2.10.1999. Lakhwinder Singh being partner of the firm executed pronote and receipt in consideration of the said amount agreeing to repay the same on demand together with interest at the rate of Rs.2% per month. The pronote was presented for payment many a times calling upon the defendant to return the loan amount along with interest due thereon, but in vain. On these allegations, the suit has been filed for recovery of Rs.1,48,000/- comprising principal amount of Rs.1 lac and interest Rs.48,000/- at the rate of Rs.2% per month. In the written statement, the defendant repudiated the R.S.A. No.2188 of 2006 -2- signatures of Lakhwinder Singh on the pronote as well as receipt apart from borrowing of the alleged amount. As alleged, the pronote and receipt are forged and fabricated documents. Lastly, it has been prayed that the suit may be dismissed. The following issues were framed:- i) Whether plaintiff is entitled to recover the principal amount i.e. Rs.1,00,000/-? OPP ii) Whether plaintiff is entitled to the interest at the rate of 2% per month w.e.f. 2.10.99 to 1.10.2001? OPP iii) Whether the defendant has never executed any pronote on 2.10.99 in favour of the plaintiff in the presence of marginal witnesses? OPD iv) Relief. After hearing the learned counsel for the parties and examining the evidence on record, the learned trial Court dismissed the suit with costs. Feeling aggrieved therewith, the plaintiff went up in appeal, which was dismissed by the Court of learned District Judge, Ferozepur. Being undaunted and dissatisfied therewith, he has preferred this appeal. Mr. L.S. Sidhu, Advocate appearing on behalf of the appellant strenuously urged that it has been fully proved on the record that the defendant- firm had borrowed a sum of Rs.1 lac from the appellant on 2.10.1999 and on its behalf, its partner Lakhwinder Singh had executed the pronote and receipt in consideration of this amount by agreeing to repay the same on demand along with interest at the rate of Rs.2% per month. It is further argued that the Courts below by relying upon inadmissible and untrustworthy evidence non-suited the plaintiff- appellant. He further pressed into service that Jagir Singh, the only attesting witness could not be R.S.A. No.2188 of 2006 -3- examined due to his death. He further maintained that in view of the observations made by this Court in re: Avtar Singh v. Dalip Singh, 1993 (Supplementary) Civil Court Cases 50 (Punjab and Haryana), the plaintiff- appellant should not have been non-suited merely because of the non-examination of the attesting witness. I am unable to persuade myself to agree with these submissions. A glance through the judgment rendered by the learned trial Court would reveal that the plaintiff- appellant did not adduce any evidence except his solitary statement. On the other hand, the defendant respondent has examined Varun Gagneja, Handwriting and Finger Print Expert as DW1 in addition to his own statement. In his affidavit Ex.DW1/A, the expert witness has solemnly affirmed that for the detailed reasons given by him in his report Ex.DW1/B, the disputed signatures are not of Lakhwinder Singh- defendant. The plaintiff- appellant did not examine any counter expert to rebut this opinion evidence. As alleged, the disputed pronote and receipt were attested by one Jagir Singh, who has not been examined. There is nothing on the record to show that he has breathed his last. The name of scribe has also not been disclosed. In re: Avtar Singh (supra), the scribe of the pronote and receipt was examined. Thus the facts of Avtar Singh's case (supra), are distinguishable from the one in hand. On delving into the findings returned by both the Courts below, it emanates that the execution of the disputed pronote as well as receipt has not been proved. Unless the execution of the pronote is not established, the presumption under Section 118-A of the Negotiable Instruments Act, 1881, that the pronote was executed for consideration cannot be drawn. In view of the above discussion, the findings returned by both R.S.A. No.2188 of 2006 -4- the Courts below are not liable to be disturbed. More to the point, no substantial question of law arises for determination by this Court. Sequelly, this appeal is dismissed in limine. October 31, 2008 ( HARBANS LAL ) renu JUDGE