R.S.A. No.2964 of 2008 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** R.S.A. No.2964 of 2008 (O&M) Date of Decision:17.12.2008 Gurmukh Singh .....Appellant Vs. Nirmal Singh .....Respondent CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present:- Mr. Manish Bansal, Advocate for the appellant. **** JUDGMENT HARBANS LAL, J. This appeal is directed against the judgment/ decree dated 2.11.2007 passed by the Court of learned Additional District Judge, Bathinda whereby he dismissed the appeal preferred against the judgment/ decree dated 24.10.2005 vide which the Court of learned Civil Judge (Junior Division), Bathinda decreed the suit with costs for the recovery of Rs.39,000/- along with interest at the rate of 9% per annum from the date of pronote and receipt on the said amount till filing of the present suit and future interest at the rate of 6% per annum from the date of filing of the suit till actual realisation of the decretal amount. The minimal facts are these: The defendant had borrowed a sum of Rs.39,000/- on interest at the rate of 2½% per annum from the plaintiff on 25.6.1999 with the promise to repay the same on demand. In consideration thereof, he executed a pronote and receipt of even date. He failed to repay the same. In answer to this claim, it has been inter-alia R.S.A. No.2964 of 2008 (O&M) -2- pleaded that the plaintiff is a money lender without licence and the suit is time barred. The alleged pronote and receipt are forged and fabricated documents and the same are not properly stamped. It has been alleged that the same were never executed by the defendant in favour of the plaintiff, nor the former had borrowed the alleged amount. The following issues were framed by the learned trial Court:- 1. Whether the plaintiff is entitled to the recovery of Rs.74,100/- alongwith interest as prayed for? OPP 2. Whether the plaintiff has no locus-standi or cause of action to file the present suit? OPD 3. Whether the suit is not maintainable in the present form?OPD 4. Whether the plaintiff is a money lender without licence? OPD 5. Whether the suit is barred by limitation? OPD 6. Whether the plaintiff is estopped from filing the present suit by his own act and conduct? OPD 6-A. Whether the said pronote and receipt dated 25.6.99 are false and fabricated documents? OPD 6-B. Whether the said pronote and receipt are not properly stamped? OPD 7. Relief. After hearing the learned counsel for the parties and examining the evidence on record, the learned trial Court decreed the suit as noted supra. Feeling aggrieved therewith, the defendant went up in appeal, which was dismissed by the learned First Appellate Court. Being undaunted and R.S.A. No.2964 of 2008 (O&M) -3- dissatisfied, he has preferred this second appeal. I have heard the learned counsel for the appellant, besides perusing the findings returned by both the Courts below with due care and circumspection. Mr. Manish Bansal, Advocate appearing on behalf of the appellant urged with great eloquence that the learned Courts below have brushed aside the fact that PW3 Sukhdev Singh being the real brother-in- law of the plaintiff is an interested witness and that being so, his testimony is unreliable. As regards, PW2 Gurjant Singh, he has clearly stated in his cross-examination that no amount was paid by the plaintiff to the defendant in his presence and thus, neither the execution of the disputed pronote nor passing of the consideration is established. It is very difficult to swallow these contentions. In his affidavit Ex.DW1/A, the defendant- appellant has solemnly affirmed that the pronote and receipt do not bear his signatures. The plaintiff has examined PW4 Harbaksh Singh Mander, a Handwriting Expert. It is in his evidence tendered by way of affidavit that “I am of the opinion that the disputed marked QA and QB writings and signatures taken from the pronote and receipts dated 25.6.1999 exhibited as P.1 and P.2 respectively are corresponding with the specimen writings and signatures of Shri Gurmukh Singh marked as SA and SB and are of one and the same person. As against this, the defendant- appellant did not have the courage to examine some counter- expert. This apart, Gurjant Singh (sic.) in his evidence by way of affidavit has solemnly affirmed that he is the marginal witness of the pronote and receipt dated 25.6.1999 and the same were scribed in the handwriting of the defendant- Gurmukh Singh in his presence and in the R.S.A. No.2964 of 2008 (O&M) -4- presence of other marginal witness Sukhdev Singh. The principal amount of Rs.39,000/- was advanced to the defendant by the plaintiff, Nirmal Singh and the defendant put his signatures on the pronote and receipt in his presence. That the pronote is Ex.P.1 and receipt is Ex.P.2. Thus on evaluating this evidence, it transpires that the disputed pronote and receipt are in the hand of the defendant- appellant, who as already noticed, did not dare to examine any handwriting expert. Sukhdev Singh PW3 as well as the plaintiff Nirmal Singh as PW1 have fully supported the evidence tendered by Gurjant Singh PW2. The defendant- Gurmukh Singh as DW1 in the opening sentence of his cross-examination stated that he is an illiterate person though under the stress of cross-examination, he has admitted that he is drawing pension from Military as he was discharged from Military. If he was serving as such, he by no stretch of imagination, could be an illiterate person. On assessing the evidence of the above-mentioned witnesses, it transpires that the disputed pronote and receipt were executed by the appellant in favour of the respondent for consideration. Consequently, this appeal being devoid of any merit is dismissed. December 17, 2008 ( HARBANS LAL ) renu JUDGE Whether to be referred to the Reporter? No