R.S.A. No.4247 of 2006 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** R.S.A. No.4247 of 2006 Date of Decision:30.10.2008 Gurmail Singh alias Ramail Singh .....Appellant Vs. M/s Ralla Ram Banarsi Dass, Commission Agents, Satti Bazar, Samana, Tehsil Samana, District Patiala .....Respondent CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present:- Mr. Jai Bhagwan Advocate for Mr. Arun Palli, Senior Advocate for the appellant. Mr. Subhash Aggarwal, Advocate for the respondent. **** HARBANS LAL, J. This appeal is directed against the judgment/ decree dated 25.8.2006 passed by the Court of learned District Judge, Patiala whereby he dismissed the appeal preferred against the judgment/ decree dated 27.9.2005 rendered by the Court of learned Civil Judge (Junior Division), Patiala vide which she decreed the suit for the recovery of Rs.1,93,000/- comprising principal amount Rs.1,22,905/- and interest Rs.70,095/-. The facts which led the filing of the suit are that the plaintiff- firm is a sole proprietorship concern of which Ram Partap son of Ralla Ram is the sole proprietor. The defendant being the customer used to get money on loan basis from the plaintiff from time to time. From 5.5.2004 to 25.10.1995, he took loan from the plaintiff by appending his signatures against the relevant entries in account books of the plaintiff. He also thumb marked against an entry in the account books. In all, a sum of Rs.1,84,875/- was obtained by the defendant as a loan from the plaintiff. R.S.A. No.4247 of 2006 -2- The defendant also used to sell his agricultural produce with the plaintiff. On 5.10.1994, he sold his paddy crop worth Rs.32,820/- and on 18.10.1994, he sold paddy crop to the tune of Rs.24,650/- through the plaintiff. Lastly, it has been prayed that a sum of Rs.1,93,000/- i.e., Rs.1,22,905/- as principal amount and a sum of Rs.70,095/- on account of interest at the rate of 1.5% per month is due from the defendant to the plaintiff upto 4.5.1997. As alleged, he was requested many a times to pay this amount, but in vain. On these allegations, the suit has been filed. In answer to this claim, the defendant filed written statement inter-alia pleading that his real name is Ramel Singh and not Gurmail Singh as alleged and that there is no account in the name of defendant Ramel Singh with the plaintiff, who has not shown the correct figure of the amount paid by the defendant to the plaintiff. That an amount of Rs.1,20,000/- was paid by the defendant on 15.6.1995 and the plaintiff Ram Partap himself had made the entries duly signed by him in the Bahi of the defendant but he has not shown the exact figure of the amount paid by the defendant. While traversing other facts in the plaint, it has been prayed that the suit may be dismissed with costs. The following issues were framed:- 1. Whether the plaintiff is entitled for recovery of Rs.1,93,000/- i.e. 1,22,905 as principal amount plus Rs.70095/- as interest from the plaintiff? OPP 2. At what rate of interest, the plaintiff is entitled to recover from the defendant? OPP 3. Whether the present suit is not maintainable? OPD 4. Whether the suit of the plaintiff is false, frivolous and vexatious to the knowledge of the plaintiff? OPD R.S.A. No.4247 of 2006 -3- 5. Relief. After hearing the learned counsel for the parties and examining the evidence on record, the learned trial Court decreed the suit for the recovery of Rs.1,93,000/- as noted supra vide her judgment/ decree dated 27.9.2005. Feeling aggrieved therewith, the defendant went up in appeal, which has also been dismissed by the Court of learned District Judge, Patiala vide his judgment/ decree dated 25.8.2006. Being undaunted and dissatisfied therewith, the defendant- appellant has preferred this appeal. I have heard the learned counsel for the parties, besides perusing the record as well as the findings returned by both the Courts below with due care and circumspection. Mr. Jai Bhagwan, Advocate appearing on behalf of the appellant maintained with great vigour that the plaintiff being an unregistered firm could not sue in view of the provisions as enshrined in Section 69 of the Indian Partnership Act. This contention is unsustainable for the reason that all along it has been the case of the plaintiff that it is a sole proprietorship concern which requires no registration. That being so, the provisions of Section 69 ibid are not attracted to the facts of the instant case. It is further argued that the name of the appellant is Ramail Singh and not Gurmail Singh and furthermore the appeal before the First Appellate Court was instituted by the appellant as Gurmail Singh for the reason that he has been arrayed as such by the respondent- plaintiff in the suit and as such, so, no decree could be passed against the person who had no entity. I regret my inability to be one with learned counsel for the appellant. The learned trial Court in paragraph No.14 of the judgment has observed that “he (referring to the defendant) has also admitted in his cross-examination that R.S.A. No.4247 of 2006 -4- he was served by Hon'ble the High Court in the name of Gurmail Singh. By stating so, the defendant has admitted that he is also known as Gurmail Singh, otherwise he would not have taken up summons which were in the name of Gurmail Singh.” These observations leave no scope for doubt that the appellant is also known as Gurmail Singh and it is because of this reason that he was served by this Court in the name of Gurmail Singh. Thus, this contention being bereft of any merit is turned down. The next argument having been raised on behalf of the appellant is that the copies of the account books were not produced along with the plaint and thus the suit was not maintainable. To tide over these submissions, Mr. Subhash Aggarwal, Advocate, representing the plaintiff- respondent argued that as is borne out from the record, the copy of the entries in the account books was also produced at the time of filing of the suit. I have well considered these submissions. There is nothing on the record to show that the photostat copy of the relevant entries in the account books or the original account books were not produced at the time of filing of the suit. As surfaces in the cross-examination of Ram Partap, plaintiff PW1, at the time of filing of the suit, the account books were produced in the Court. This evidence leaves no scope for doubt that the provisions of Order 7 Rule 17 of the Code of Civil Procedure were adhered to. More to the point, Order 7, Rule 18 of CPC, dealing with the inadmissibility of document not produced when plaint filed has been omitted by the Code of Civil Procedure (Amendment) Act, 2002. Thus, if it is assumed that the provisions of Order 7, Rule 17 ibid were given a go by, it hardly affects the admissibility of the entries relied upon by both the R.S.A. No.4247 of 2006 -5- Courts below. As such, the contention raised by the learned counsel for the appellant pales into insignificance. It is further pressed into service by the learned counsel for the appellant that there was hardly any presumption regarding authenticity and genuineness of the account books relied upon by the plaintiff- respondent, and that being so, the Courts below have gravely erred in placing abundant reliance thereupon. This argument is hard to swallow. A glance through the statement of Ram Partap, PW1 would reveal that he has proved all the monetary transactions entered into between the parties on the basis of the account books being maintained by the plaintiff in the ordinary course of business. As would be apparent from his cross- examination, no material impeaching the authenticity of these entries could be wrenched out. Thus there does not seem to be any reason to discard the same. Last of all, it has been argued on behalf of the appellant that the report of the document expert too could not be given much credence in view of the settled proposition of law that the examination of the handwriting expert is not conclusive in nature. This contention too has no legs to stand upon. Mr. R.V. Vashisth, Handwriting and Finger Prints Expert PW2 has opined that the questioned signatures mark Q.1 to Q.32 have been signed by one and the same individual, who has signed standard signatures mark S1 to S5. His report is Ex.PW2/A. The defendant- appellant did not have the courage to examine any counter- expert. A glance through the cross-examination of this expert witness would reveal that his credibility could not be impeached in any manner. On perusing the reasons assigned by him in his aforesaid report, it transpires that there is nothing on the record to take a contrary view thereto. The following observations appear in the R.S.A. No.4247 of 2006 -6- cross-examination of the defendant- appellant (DW1) “The witness has not admitted the signature on the statement dated 4.10.2002. On the power of attornies in favour of Shri S.S. Randhawa, Advocate Samana at point S.1 and other power of attorney in favour of I.S. Salooja, Advocate, Samana as S.2.” Ostensibly, he has gone to the extent to deny his signatures under his above-mentioned statement as well as the power of attornies given by him in favour of his counsels. If he can go to this extent, by all reasonableness, he could be expected to deny the loan transactions set forth against him by the plaintiff. On analysing the entire documentary evidence on the record, it comes out that the concurrent findings returned by both the Courts below cannot be faulted with. More to the point, no substantial question of law arises for determination by this Court in this appeal. In view of the preceding discussion, this appeal fails and is dismissed. October 30, 2008 ( HARBANS LAL ) renu JUDGE Whether to be referred to the Reporter? No