IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 4893 of 2009 Date of Decision : December 23, 2009 M/s Bickwon International and another ....Appellants Versus M/s Ganesh Polytex Limited, Raipur (Rania) ....Respondent CORAM : HON'BLE MR. JUSTICE T.P.S. MANN Present : Mr. Jaideep Verma, Advocate T.P.S. MANN, J. Suit for recovery filed by the respondent was decreed by the learned trial Court on 27.2.2007 and by the learned lower appellate Court on 1.8.2009. A decree for recovery of Rs.6,92,127/- was passed in favour of the respondent and against the appellants with costs. The respondent was also held entitled to interest @ 12% per annum on the decretal amount from 14.5.1999 till the filing of the suit and @ 6% per annum from the date of the suit till realization. Aggrieved of the aforementioned, the defendants are now before this Court by way of a second appeal filed under Section 100 of the Code of Civil Procedure. According to the plaintiff-respondent, the defendants- appellants approached the plaintiff for purchase of goods and assured the plaintiff that there would be no delay in payment. The plaintiff supplied goods to the defendants. However, the defendants failed to pay the amount. The accounts were reconciled from time to time and the plaintiff R.S.A. No. 4893 of 2009 -2- was entitled to recover Rs.6,92,127/- as principal amount and Rs.2,90,693/- as interest @ 12% per annum upto 14.5.1999. However, vide agreement dated 14.5.1999, the defendants agreed to pay Rs.5,31,000/- as a rebate of Rs.1,61,127/- was given to them in case they made the payment by 30.8.1999. However, the defendants did not pay the amount and as such the plaintiff was entitled to recover Rs.6,92,127/- as principal amount and Rs.2,90,693/- as interest. A legal notice was also served upon the defendants to pay the amount but to no effect. The defendants filed their written statement wherein, apart from taking preliminary objections, it was averred that no such agreement dated 14.5.1999 was executed. Instead, it was denied that the defendants ever approached the plaintiff for purchase of goods or the defendants purchased any goods and failed to make the payment to the plaintiff. After hearing learned counsel for the parties and going through the file, learned Courts below held that the version of the defendants that they had no transaction with the plaintiff stood falsified as in their reply to the application filed by the plaintiff under Order XI Rules 12 and 14 C.P.C., seeking production of the bills, income tax returns, balance sheet etc., it was mentioned that those documents were not traceable and would be produced as and when found, besides mentioning that the carbon copies of the bills were in possession of the plaintiff, which the plaintiff could easily produce and prove the same. As per the statement of account Ex.P3 an amount of Rs.6,92,127/- was due on 14.5.1999, as the interest amount had been rebated. A writing/settlement Ex.P17 was R.S.A. No. 4893 of 2009 -3- recorded on the said date and the entire amount due inclusive of interest of Rs.4,95,937/- was mentioned therein. It was stated that the defendants would pay Rs.5,31,000/- towards full and final settlement upto 30.8.1999. The terms of writing/settlement Ex.P17 were accepted as per the endorsement given thereon by defendant No.2 in his own handwriting. Despite the same, the said amount was not paid and, therefore, the plaintiff was entitled to the principal amount of Rs.6,92,127/- as on 14.5.1999. Learned counsel for the defendants-appellants submitted that the transaction between the parties pertained to the year 1995-96 and, therefore, the present suit filed by the plaintiff for recovery on 15.6.2001 was not within limitation. Even the writing/settlement dated 14.5.1999, considered by the learned Courts below as an acknowledgment of the debt would not have extended the limitation as the same was also not entered into within the period of limitation. The writing/settlement dated 14.5.1999 was a forged and fabricated document. Its original was not produced by the plaintiff, instead, its carbon copy was produced. The transaction between the parties did pertain to the year 1995-96 but on 14.5.1999 a writing/settlement was recorded between the parties, which was signed by defendant No.2. The accounts were finally reconciled. Though an amount of Rs.6,92,127/- as principal amount and Rs.2,90,693/- as interest was due as of that date to the plaintiff from the defendants yet it was agreed that the defendants could pay an amount of Rs.5,31,000/- by 30.8.1999 and in this way they were given rebate of Rs.1,61,127/-. The defendants did make some payments under the R.S.A. No. 4893 of 2009 -4- writing/settlement Ex.P17 by issuing cheque No. 258487 dated 17.10.1997 for Rs.25,000/- and another cheque No. 258488 dated 27.10.1997 for a similar amount besides, issuing draft No. 339463 dated 18.12.1997. While appearing as DW1, Vikram Gosain-defendant No.2 did not specifically deny the issuance of the two cheques and the draft but only feigned ignorance about the same. Similar was his stand in respect of settlement Ex.P17. He even denied that Ex.P17 bore seal of his firm despite the fact that there was such a seal on the same. In his cross-examination he stated that he might have purchased the articles from the plaintiff but he did not remember. He also did not remember as to how much amount he had paid to the plaintiff. As regards the production of the records maintained by the defendants, he had initially replied that the record was not traceable and he would produce the same as and when traced out. He also stated that he could not produce the record regarding filing of the the income tax returns and sales tax as the same had been washed away in the floods but when examined further, he failed to state as to when the flooding took place and whether he had lodged any report regarding damage of the record. In para 19 of its judgment, learned lower appellate Court has commented upon the conduct of DW1 by holding that he had intentionally concealed material facts from the Court besides, failing to produce the record of the firm to prove that the defendants had no business transaction with the plaintiff. Infact, an adverse inference was drawn against the defendants. Once the defendants failed to dislodge the existence of writing/settlement Ex.P17 brought about on 14.5.1999 vide which the R.S.A. No. 4893 of 2009 -5- accounts were initially settled and the defendants did pay some of the outstanding amount to the plaintiff, that would be the starting point for period of limitation. The suit having been filed on 15.6.2001 was, thus, within the period of limitation. As DW1 did not specifically deny the writing/settlement Ex.P17 except for feigning ignorance about the same, the carbon copy which was produced by the plaintiff and bearing the seal of the defendants- firm was, therefore, admissible in evidence. No other argument has been submitted by learned counsel for the appellants. In view of the above, it cannot be said that the findings arrived at by the learned Courts below were not based upon proper appreciation of the material evidence available on the record. These findings were neither perverse nor did they suffer from any illegality or infirmity. These findings can not be challenged and, that too, in a second appeal, which is maintainable only on some substantial question of law and not otherwise. The various substantial questions of law, as framed by learned counsel for the appellants, do not arise for determination. Resultantly, the appeal is without any merit and, therefore, dismissed. ( T.P.S. MANN ) December 23, 2009 JUDGE ajay-1