IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No.851 of 2009 (O&M) Date of Decision: 24.02.2009 Satish Kumar. ....... Appellant through Shri K.K.Goel,Advocate. Versus Rakesh Kumar. ....... Respondent through Nemo. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... Mahesh Grover,J. C.M.No.2459-C of 2009 The application is allowed and delay of 7 days in the filing of the appeal is condoned. R.S.A.No.851 of 2009 (O&M) This Regular Second Appeal is directed against judgments and decrees dated 11.8.2006 and 24.9.2008 passed respectively by the Additional Civil Judge (Senior Division), Narwana (hereinafer described as `the trial Court') and the Additional District Judge, Jind (referred to hereinafter as `the First Appellate Court') whereby the suit of the plaintiff- respondent was decreed and the appeal of the defendant-appellant was R.S.A.No.851 of 2009 (O&M) -2- .... dismissed. A suit for recovery of Rs.7,60,000/- was filed by the respondent against appellant, which amount included interest at the rate of 15% calculated on every 31st March of the year. The principal amount as set out by the respondent was Rs.5,00,000/- and the interest component was to the extent of Rs.2,60,000/-. The appellant contested the suit, denied the averments made in the plaint and disputed his liability. Both the parties went to trial on the following issues:- 1. Whether the defendant had borrowed a sum of Rs.1,73,000/- vide cheque No.722037 dated 9.2.2K & Rs.3,27,000/- vide cheque No.722038 dated 10.2.2K on interest at the rate of Rs.15% per annum from the plaintiff?OPP 2. Whether the plaintiff is entitled to recovery of Rs.5,00,000/- along with interest as prayed for?OPP 3. Whether the amount in question was given as goodwill by the plaintiff as averred?OPD 4. Relief. After appraisal of the entire evidence on record, the trial Court decreed the suit for recovery of Rs.7,60,000/- along with pendente lite and future interest at the rate of 9% per annum. In appeal, the findings recorded by the trial Court were affirmed by the First Appellate Court. Hence, this appeal. R.S.A.No.851 of 2009 (O&M) -3- .... Learned counsel for the appellant contended that there were two entities by different names, i.e., M/S Garg Traders Flour Mill and M/S Garg Traders, Bankers and Commission Agents and the appellant is shown to have borrowed money from the latter, whereas the suit was filed by the former. It was further contended that there is nothing on record to show that the appellant had ever borrowed any money from the respondent. Learned counsel for the appellant submitted that the respondent had not led any evidence to establish that both the aforementioned firms are common. In view of this, he submitted that both the Courts below have erred in decreeing the suit of the respondent and dismissing the appeal of the appellant. I have thoughtfully considered the contentions of the learned counsel for the appellant. A perusal of the defences as pleaded by the appellant in his written statement as reproduced in the impugned judgments,to which there is no denial by the appellant, shows that no such fact was ever pleaded by him. There was no evidence to this effect and even if there has been any evidence in that regard, the Courts were precluded from going into and relying upon the same. In any eventuality, since there is neither any pleading nor any evidence to support the contention as raised by the learned counsel for the appellant, I am afraid, such a plea necessarily has to be negatived. The respondent, in order to substantiate his case, on the contrary, has established by way of cogent evidence the outstanding amount R.S.A.No.851 of 2009 (O&M) -4- .... against the appellant. There is concrete evidence in the shape of certificate of the bank showing that cheque no.722037 dated 9.2.2000 in the sum of Rs.1,73,000/- and another cheque no.722038 dated 10.2.2000 in the sum of Rs.3,27,000/- issued by the respondent were credited in the account of the appellant. The statement of account, Exhibit P5, further proves that the aforesaid amounts were duly debited in the account of M/S Garg Traders with Rakesh Kumar as its proprietor. The copy of the ledger and Rokar Bahi of the respondent established the payment of the said amounts to the appellant. The balance sheets of the appellant himself which are on record as Exhibits P18 to P21 show that Rs.5,00,000/- had been received from Garg Traders, Narwana, which were duly signed by the appellant himself. In view of this cogent evidence in the shape of records of the bank, Rokar Bahi and the signed statement of account by the appellant, no fault can be found with the findings recorded by the Courts below. No substantial question of law is shown to have arisen for determination in this appeal,which is held to be without any merit and is dismissed. February 24,2009 ( Mahesh Grover ) “SCM” Judge