IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.2307 of 2011 (O&M) Date of Decision : 24 th May, 2011 Balwinder Singh & another ….Appellants Versus Balwant Singh ….Respondent CORAM :- HON’BLE MR. JUSTICE L. N. MITTAL PRESENT : Mr. R. N. Sharma, Advocate for the appellants. * * * * * L. N. Mittal, J. (Oral) CM No.6378-C of 2011: Allowed as prayed for. Main Appeal: Defendants-Balwinder Singh and his mother Smt. Satto having remained unsuccessful in the trial court and partly successful in the lower appellate court have filed the instant second appeal. Respondent/plaintiff-Balwant Singh filed suit for recovery of Rs.80,000/- against defendants/appellants. The plaintiff alleged that the defendants had taken the plaintiffs’ land on Theka for 1996-97 and 1997-98 and sum of Rs.51,750 remained due out of the Theka money from the defendants to the plaintiff for which defendants executed acknowledgment dated 04.04.1999 undertaking to pay the said balance amount and also RSA No.2307 of 2011(O&M) undertaking to pay Theka money for the year 1998-99 for 7 acres land @ Rs.5,000/- per acre i.e. Rs.35000/-. Out of it, defendants paid Rs.3,000/- and Rs.20,000/- leaving balance of Rs.12,000/-, in addition to Rs.51,750/-. The plaintiff also claimed Rs.30,526/- as interest @ 1.5 per cent per month, but gave up interest amount of Rs.14,976/- and claimed the balance of amount of Rs.80,000/- including principal and interest. The defendants broadly controvered the plaint averments. They denied having executed the alleged acknowledgment dated 04.04.2009. The defendants pleaded that they were illegally detained by the Police at the instance of the plaintiff and their signatures/thumb impressions were obtained on blank papers. Various other pleas were also raised. Learned Civil Judge (Senior Division) Moga, vide judgment and decree dated 18.11.2009 decreed the plaintiffs’ suit for recovery of principal balance amount of Rs.63,700/- along with interest @ 9% per annum w.e.f. 04.04.1999 the date of writing till decision of the suit and future interest @ 6% per annum from the date of decision of the suit till recovery. In first appeal preferred by defendants, learned Additional District Judge, Moga vide judgment and decree dated 13.01.2011, modified the judgment and decree of the trial court and decreed the plaintiffs’ suit for recovery of Rs.51,700/- alongwith interest at the rates awarded by the trial court. Feeling aggrieved, defendants have preferred the instant second appeal. I have heard learned counsel for the appellants and perused the case file. -2- RSA No.2307 of 2011(O&M) The plaintiff besides himself appearing in the witness box has examined Kirpal Singh PW-2 one of the attesting witnesses of the acknowledgment dated 04.04.1999 Exhibit P-1, executed by defendants acknowledging the balance amount of Rs.51.750/- as pleaded by the plaintiff. Both the courts below after analyzing the evidence led by both the parties have come to concurrent finding that the aforesaid writing was executed by the defendants acknowledging the amount of Rs.51,750/- to be due from them to the plaintiff. The said finding is based on proper appreciation of evidence and cannot be said to be perverse or illegal nor it is based on misreading or misappreciation of evidence. Consequently the said finding does not call for interference in exercise of second appellate jurisdiction. Learned counsel for the appellants contended that Kirpal Singh PW-2 has stated that the defendants did not affix their signatures/thumb impression on the writing in his presence. The contention is misconceived because Kirpal Singh did not make any such statement. He rather stated that the writing was written at his house and was signed/thumb marked by the defendants and he attested the same as witness. Learned counsel for the appellants also contended that the suit is time barred because the amount claimed is for the years 1996-97 and 1997-98 whereas, the suit was filed on 02.02.2002 i.e. after expiry of more than three years from the due date. The contention although attractive on first blush is in fact devoid of merit because the suit is well within limitation when computed from the date of writing dated 04.04.1999 Exhibit P-1, -3- RSA No.2307 of 2011(O&M) wherein the defendants acknowledged the principal amount of Rs.51,750/- to be due from them to the plaintiff. Learned counsel for the appellants also contended that the writing Exhibit P-1 is on a plain paper and not on stamp paper. However, the writing cannot be discarded on this ground. No such objection was even taken when the writing was exhibited. Consequently in view of Section 36 of the Stamp Act, 1899, objection that the writing was not duly stamped, cannot be raised at later stage. Learned counsel for the appellants also contended that the writing Exhibit P-1 does not specify liability of the defendants to pay interest. However, if the defendants had paid the amount on the due date as agreed in the writing, the defendants would not have been liable to pay interest, but since the defendants did not pay the amount on the due date, they are liable to pay interest. Courts below have awarded interest at moderate rate of 9% per annum since the date of writing, till decree of the trial court and thereafter @ 6% per annum only. The same is not excessive. For the reasons aforesaid, I find no merit in the instant second appeal. No question of law, much less substantial question of law, arises for adjudication in this second appeal. Accordingly the appeal is dismissed in limine. (L. N. MITTAL) JUDGE 24th May, 2011 ‘raj’ -4-