Regular Second Appeal No. 1487 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 1487 of 2009. (O&M) Date of Decision: 15.4.2009 *** Binni Aggarwal through her power of attorney Mulakh Raj .. Appellant VS. Rajni Bala & Anr. .. Respondents. CORAM: HON'BLE MR. JUSTICE ARVIND KUMAR, Present:- Mr. Deepak Garg, Advocate for the appellant. *** ARVIND KUMAR, J. Heard. Delay of 3 days in re-filing stands condoned. Through the instant regular second appeal, the plaintiff- appellant is questioning the legality and impropriety of judgment and decree dated 25.11.2008 passed by the learned First Appellate Court below by dint of which the appeal filed by respondent-defendant has been partly accepted and the judgment and decree dated 11.9.2007 passed by the learned trial court, decreeing the suit for recovery of an amount of Rs.1,38,000/- has been modified restricting the decreetal amount to Rs.79,400/-. The facts necessary for disposal of instant appeal are that, the plaintiff Binni Aggarwal got instituted the suit through her father/ power of attorney Mulakh Raj for recovery of an amount of Rs.1,38,000/- with the averments that Achar Pal, the predecessor-in-interest of defendants took an amount of Rs.40,000/- on 8.5.2001 and Rs. 1,00,000/- on 19.7.2001 vide two different cheques from her as loan and agreed to repay the same along with interest @ 12% per annum and also returned the amount against the interest accrued on the said amount, but failed to pay the outstanding amount of Rs.1,38,000/- despite request made by her. On notice the stand of the defendants was of denial as to taking Regular Second Appeal No. 1487 of 2009 2 of any loan by Achar Pal on interest from the plaintiff. After contest the learned trial court decreed the suit of the plaintiff for an amount of Rs.1,38,000/- and also awarded her interest @ 9% from the filing of the suit till realization and directed the legal representatives of Achar Pal to realize the decreetal amount by fixing their liability to the extent they inherited the property from Achar Pal. On an appeal preferred by legal representatives of Achar Pal, the learned appellate Court below, as noticed above, restricted the decreetal amount to Rs.79,400/- and accordingly modified the judgment and decree of the learned trial court, leading to the institution of the present regular second appeal. I have heard learned counsel for the appellant and have gone through the paper-book carefully. The claim of the plaintiff revolves around two cheques as against which she made the payment to Achar Pal for Rs.40,000/- and Rs.1,00,000/- respectively. The learned trial court held both the transactions proved and accordingly decreed the suit of the plaintiff. But interestingly the cheque dated 8.5.2001 for an amount of Rs.40,000/-, which allegedly was issued in favour of the firm of Achar Pal was neither produced nor proved on record by the plaintiff and thus, finding the statement of account of the plaintiff showing debit entry for an amount of Rs.40,000/-, short of any weight to burden the defendant with any liability, without there having any proof regarding credit entry of the said amount in the account of defendant, rightly held that the defendant cannot be fastened with the liability of paying any amount of Rs.40,000/- and interest thereupon. The defendant admittedly had made payment of Rs. 72,600/- to the plaintiff on different occasions and an amount of Rs.52000/- was assessed as interest on the amount of Rs.1,00,000/-, which after adjustment with the paid amount, worked out to be Rs.79,400/-, for which the suit, as referred to above, has been decreed by the learned Appellate court, after modifying the judgment and decree of the learned trial court. Even the plaintiff cannot derive any benefit by adducing the copy of said cheque dated 8.5.2001 in additional evidence, that too at this juncture, as requested by her because the very basis of the claim of the plaintiff was the cheques vide which she extended the loan to the defendant and right from the beginning the said cheque was well Regular Second Appeal No. 1487 of 2009 3 within her knowledge, but despite that she failed to prove the same at the relevant time when her evidence was going on. Thus, in absence of any plausible explanation, it cannot be said that despite exercise of due diligence the plaintiff could not prove the said document earlier in time. Thus, in the facts and circumstances of the case, it cannot be said that the approach of the learned Appellate Court below in modifying the judgment and decree of the learned trial court is either illegal or perverse. Nothing has been shown to take a contrary view. No substantial question of law, which is sine qua non for admission of appeal is made out. The appeal is wholly without merits and the same is accordingly dismissed in limine. (ARVIND KUMAR) JUDGE April 15,2009 Jiten