RSA No.3067 of 2009 -: 1 :- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3067 of 2009 (O&M) Date of decision: January 14, 2010. Gurcharan Singh ...Appellant(s) v. Iqbal Singh ...Respondent(s) CORAM:HON'BLE MR. JUSTICE RAKESH KUMAR GARG Present: Shri Amarjeet Singh Ahluwalia, Advocate, for the appellant(s). Rakesh Kumar Garg, J. (Oral): CM No.9217-C of 2009 After hearing learned counsel for the appellant, delay of 23 days in filing this appeal is condoned. Application is disposed of. CM Nos. 9219 & 9220-C of 2009 Civil Misc. applications are allowed subject to just exceptions. RSA No.3067 of 2009 & CM No.9221-C of 2009 (O&M) This is defendant's second appeal challenging the judgment and decrees of the courts below whereby suit for recovery filed by the plaintiff- respondent has been decreed with costs. Briefly stated, the plaintiff-respondent filed a suit for recovery on the basis of pronote and receipt dated 7.4.2004 alleging that the appellant borrowed a cash sum of Rs.2,50,000/- from him on 7.4.2004 and agreed to RSA No.3067 of 2009 -: 2 :- repay the same along with interest @ 2% per month. After receiving the aforesaid amount, the appellant executed a pronote and receipt in favour of the plaintiff-respondent in the presence of attesting witnesses. It was alleged that the defendant-appellant failed to repay any amount to the plaintiff-respondent, hence suit for recovery of Rs.3,40,000/- (i.e., Rs.2,50,000/- on account of principal and Rs.90,000/- towards interest thereon) was filed. The suit was contested by the appellant by filing written statement denying having borrowed any amount from the plaintiff and also denying execution of the alleged pronote and receipt in his favour. It was further submitted that alleged pronote and receipt was forged and fabricated document and no consideration passed thereunder to him. It was further submitted that in fact appellant used to sell his agricultural produce through the commission agency of the plaintiff-respondent and also used to take some amount from him for the purchase of pesticides etc. The respondent- plaintiff used to deduct the amount lent by him to the defendant-appellant from the price of the crops through him. The accounts were settled between the parties about three years back and at the time of settlement of accounts, a sum of Rs.1,25,000/- was found outstanding against the appellant. It was further submitted that the defendant-appellant paid the due amount of Rs.1,25,000/- to the plaintiff-respondent and also paid another sum of Rs.1,25,000/- towards interest in the presence of many respectables after selling his land and after making the aforesaid payment, nothing remained due against him. It was further stated that at the time of settlement of accounts, the plaintiff had obtained thumb impressions of the defendant- appellant on a blank paper and receipt towards security and after making the RSA No.3067 of 2009 -: 3 :- payment when the appellant demanded the blank pronote and receipt, the plaintiff-respondent promised to return the same later on. Thereafter, the appellant stopped selling his crops through him. The plaintiff-respondent forged the alleged pronote and receipt on the said blank form of the pronote and receipt bearing the thumb impressions of the defendant later and filed the false suit against him. Thus, defendant prayed for dismissal of the suit. After hearing counsel for the parties and considering the evidence on record, the trial court decreed the suit for recovery of Rs.3,17,500/- with costs and pendente lite and future interest. Aggrieved by the judgment and decree dated 7.2.2009 passed by the trial court, the appellant filed an appeal before the lower appellate court which was dismissed vide the impugned judgment and decree dated 8.4.2009. Learned counsel for the appellant has vehemently argued that the alleged pronote and receipt was forged by the respondent on the blank pronote and receipt which had been taken by him at the time of settlement of accounts and the same is liable to be discarded. Learned counsel has further argued that the plaintiff-respondent admitted in his cross examination on 6.10.2003 that he has already settled the accounts of the pronote and receipt in question and nothing was due to him from the appellant. However, the learned courts below have failed to take into account the aforesaid bahi entries. The learned counsel has further referred to his application for leading additional evidence to verify the stamps affixed on the pronote and receipt dated 7.4.2004 so that the appellant can prove his case that the alleged pronote was insufficiently stamped and, therefore, was not admissible in evidence. In support of his case, learned RSA No.3067 of 2009 -: 4 :- counsel for the appellant has argued that the following substantial questions of law arise in this appeal:- 1. Whether the judgments and decrees passed by both the lower courts below are perverse and against facts and record on file? 2. Whether both the lower courts below have misread and misinteret the law and evidence on file? 3. Whether the pronote and receipt can be ignored as the same are not properly stamped? I have heard learned counsel for the appellant and perused the impugned judgment and decrees. With regard to the first argument raised by learned counsel for the appellant regarding alleged pronote and receipt being forged and fabricated documents, it may be pointed out that the appellant has failed to substantiate his aforesaid plea on the record of the case. Had the appellant repaid a sum of Rs.2,50,000/- as alleged by him, he must have obtained some receipt from the plaintiff-respondent in this regard. Neither any such receipt has been proved by the appellant. Moreover, when the accounts were settled between the parties and the amount of Rs.2,50,000/- was paid by the appellant in the presence of the witnesses and the accounts were settled, there was no necessity of giving a blank form of pronote and receipt duly thumb marked by the appellant to the respondent as a security. Thus, the above said plea of the appellant remained unproved and appears to have been raised with a view to escape his liability. The pronote and receipt in question, execution as well as passing of consideration thereunder has been duly proved on record. RSA No.3067 of 2009 -: 5 :- The second argument of the appellant regarding the admission of the plaintiff-respondent with regard to the settlement of accounts on 6.10.2003 is of no help to him. The present suit filed by the plaintiff- respondent is based on the pronote and receipt dated 7.4.2004 and does not pertain to the entries made in the bahi of the plaintiff prior to 6.10.2003. The above stated admission of the plaintiff-respondent does not in any way support plea of the appellant. As far as the plea of the appellant with regard to insufficiency of stamps on the pronote and receipt in question is concerned, the same is also without any merit. The aforesaid plea was never pleaded by the appellant in his written statement, neither any such plea was raised by him before the courts below. Keeping in view the authoritative pronouncement of the Hon'ble Supreme Court in Bachhaj Nahar v. Nilima Mandal & Anr., JT 2008(13) SC 255, the appellant is estopped from raising this plea for the first time in this regular second appeal. For the aforesaid reason, additional evidence sought to be led by the appellant vide Civil Misc. No.9218-C of 2009 filed along with this appeal is of no use to him. Thus, I find no merit in this appeal. No substantial question of law arises in this appeal for the consideration of this court. Dismissed. January 14, 2010. [ Rakesh Kumar Garg ] kadyan Judge