RSA No.3317 of 2006 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3317 of 2006 Date of Decision:14.05.2009 Jhaggar Singh ....appellant Versus Raj Pal .....respondent CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG Present: Mr.Ashok Singla,Advocate for the appellant Mr.Binderjit Singh, Advocate for the respondent **** RAKESH KUMAR GARG J. This is defendant's second appeal challenging the judgment and decrees of the Courts below whereby suit for recovery of Rs.1,72,000/- filed by the plaintiff-respondent on the basis of pronote and receipt executed in favour of the plaintiff-respondent was decreed by the Courts below. As per the averments made in the plaint, the defendant borrowed a sum of Rs.1 lac on 20.07.2000 and executed pronote and receipt in lieu thereof in favour of the plaintiff. The defendant agreed to return the loan amount along with the interest at the rate of 2%. In spite of repeated requests the defendant failed to make the payment which necessitated the filing of the present appeal. Upon notice, defendant appeared and filed written statement raising various preliminary objections as to maintainability, locus standi, limitation, value for the purpose of court fee and jurisdiction and that plaintiff was not having any money lending licence etc. RSA No.3317 of 2006 2 On merits, it was averred that defendant never borrowed the alleged amount nor he executed the alleged pronote and receipt and the same were forged and fabricated and without consideration. It was further stated that since defendant No.1 had not borrowed any sum thus the question of repayment did not arise. Dismissal of the suit was prayed for. From the pleadings of the parties the following issues were framed:- 1) Whether the plaintiff is entitled to recover the suit amount alongwith interest, if so, to what extent? OPP. 2) Relief. The trial Court after considering evidence on file and hearing the counsel for the parties decided both the issues in favour of the plaintiff and ultimately decreed the suit. While decreeing the suit, the trial Court observed that execution of pronote and receipt in question was duly proved and it was for the defendant to establish that the same were result of any forgery or fraud. The appeal filed by the defendant before the Lower Appellate Court against the judgment and decree of the trial Court was also dismissed vide impugned judgment and decree. While dismissing the appeal the Lower Appellate Court observed as under: “Learned counsel for the appellant has submitted that defendant-appellant has raised number of issues in the written statement. The plea of limitation, that suit has not been properly valued and that plaintiff is a money lender, were taken before the learned trial court, but no specific issue in this regard has been framed. The defendant- appellant has been greatly prejudiced on that account. I have carefully considered the said submission, but do not find any force in the said submission. The pronote RSA No.3317 of 2006 3 and receipt bear the thumb impressions of the defendant. The plaintiff has produced the positive evidence by examining PW.1 Harmesh Lal and besides himself appearing in the witness box. Both these witnesses have duly proved the execution of the pronote and receipt as well as the passing of the consideration. The bald statement made by the defendant and DW.2 Sarabjit Singh is not sufficient to disprove the execution of the pronote and receipt. The defendant could very well prove the fact that thumb impressions on the pronote and receipt are not that of defendant appellant by examining the Expert. The science of thumb impressions is the perfect science. The pronote and receipt are of dated 20.7.2000 and the suit was filed on 19.7.2003. So, the suit is within limitation. There is nothing on the file that the suit is not properly valued for the purpose of Court fee and jurisdiction. No evidence has been produced by the defendant-appellant to the effect that plaintiff is a money lender. When the parties are alive to the case of each other, in that case non framing of issue, is immaterial. Learned counsel for the appellant has further submitted that plaintiff has not produced the Income Tax return or books of account to corroborate his case. He has even not filed the replication. I have carefully considered the said submission, but do not find any force in the said submission. As discussed above by examining Harmesh Lal and appearing as his own witness, the plaintiff has duly proved the execution of the pronote and receipt and passing of the RSA No.3317 of 2006 4 consideration. The onus has shifted upon the defendant to prove the fact that pronote and receipt are without consideration.” Still not satisfied, the defendant has filed the present appeal challenging the judgments and decrees of the Courts below. Learned counsel for the appellant has vehemently argued that both the Courts below failed to appreciate that despite his admission plaintiff-respondent failed to produce his account books. The learned counsel has argued that while appearing as PW1 plaintiff admitted that he used to maintain account books and filed income tax returns. Had any amount being given by the plaintiff to the appellant then it would have been shown in the account books and there would not have been any hesitation for the plaintiff to produce the account books but the conduct of the plaintiff gives rise to a presumption against him and therefore adverse inference should have been drawn against him to the effect that he never advanced any amount to the appellant. It is further the case of the appellant that it is plaintiff's own evidence that he was a money lender and in this view of the matter the objection of the appellant that plaintiff was doing the business of money lending without any licence is proved to be correct and the suit of the plaintiff was not maintainable without the proof of the the licence of the money lending. On the basis of the aforesaid argument learned counsel for the appellant has argued that the following substantial question of law arises in this appeal: 1. Whether the adverse inference is liable to be drawn against the plaintiffs because of withholding of account books and income tax return especially when he admitted that he used to main the account in “Bahi Khata” at the time when the pronote and receipt were executed especially when it was the specific case of defendant that the pronote and receipt RSA No.3317 of 2006 5 are fabricated and he never received any loan and he never executed any pronote and receipt? 2. Whether the suit of the plaintiff-respondent was maintainable in the absence of any valid licence for money lending. Lastly, learned counsel for the appellant has prayed for acceptance of the appeal and setting aside of the judgment and decrees of the Courts below. On the other hand, learned counsel for the plaintiff- respondent has supported the findings of the courts below and has submitted that the plaintiff-respondent has proved the execution of the pronote and receipt and the burden shifted upon the appellant to prove the fact that pronote and receipt were without any consideration and the appellant has miserably failed to prove this fact. I have heard learned counsel for the parties. I find no merit in the arguments raised by the learned counsel for the appellant. Both the courts below have recorded a concurrent finding of fact that execution of the pronote and receipt in question stood duly proved. Once that was so, it was for the appellant to prove the fact that no consideration was passed to them. Moreover in the present case, the appellant has denied the execution of the pronote and receipt and has taken a definite stand that the pronote and receipt were forged and fabricated. In these circumstances, it was for the defendant/appellant to establish the forgery and fraud if any. The appellant has not brought an iota of evidence in support of his version. Thus, simply because plaintiff respondent has not produced the account books it cannot be inferred that the pronote and receipt in question were not executed by the appellant or that the same were without consideration. Similarly, the second argument raised by the learned RSA No.3317 of 2006 6 counsel for the appellant is devoid of any merit. No doubt appellant has taken an objection in his written statement in this regard but neither any issue was claimed by the appellant nor any argument was raised before the trial Court. Even no evidence was produced by the appellant to substantiate his plea. Moreover,I have perused the record with the help of learned counsel for the plaintiff-respondent. There is no admission on the part of the plaintiff-respondent that he was doing the business of money lending. Thus, I find no merit in this appeal. No substantial question of law arises. Dismissed. (RAKESH KUMAR GARG) JUDGE 14.05.2009 neenu