R.S.A. No. 2254 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 2254 of 2008 Date of Decision: 22.07.2009 Jai Pal son of Sh. Abhey Ram r/o village Seenk, Tehsil and Distt. Panipat. ... Appellant Versus Sushil Kumar s/o Ram Kumar r/o Safidon Mandi, Distt. Jind. ...Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Surinder Dhull, Advocate, for the appellant. Mr. Ajay Kansal, Advocate, for the respondent. SHAM SUNDER, J. * * * * This appeal, is directed, against the judgement and decree, dated 17.11.2005, rendered by the Court of Additional Civil Judge (Senior Division), Safidon, Jind, vide which, it decreed the suit of the plaintiff/respondent, for recovery, and the judgement and decree dated 12.04.2008, rendered by the Court of Additional District Judge-I, Jind, vide which, it dismissed the appeal. R.S.A. No. 2254 of 2008 2 2. The defendant/appellant borrowed a sum of Rs. 2,20,000/-, from the plaintiff/respondent, on 05.07.2001, and executed the pronote and receipt, in his (plaintiff/respondent's) favour. It was stated that the defendant/appellant, had agreed to pay interest @ Rs. 2% per mensum. It was further stated that the defendant/appellant, had also agreed, to repay the amount, on demand. The defendant/appellant, was many a time asked, to repay the principal amount, with interest. On the final refusal of the defendant/appellant, to repay the amount, left with no alternative, a suit for recovery, was filed. 3. The defendant, put in appearance, and filed written statement, wherein, he took up various objections, and contested the suit. It was pleaded that the suit of the plaintiff, was not maintainable. It was further pleaded that, no cause of action, accrued to the plaintiff, to file the present suit. It was further pleaded that the plaintiff, had no locus-standi, to file the present suit. It was further pleaded that the suit was barred by time. It was stated that the defendant, had never borrowed, any amount, from the plaintiff, nor he had ever executed any pronote and receipt. It was further stated that the pronote and receipt, were the result of fraud and mis- representation. It was further stated that, when the defendant, had never borrowed any amount, from the plaintiff, the question of its repayment alongwith interest, did not at all arise. It was further stated that, in fact, the defendant/appellant, used to sell his agricultural produce, at the shop of the plaintiff/respondent, his brothers, father and family members namely Ram Kumar, and Rajinder Kumar, Commission Agents, Safidon, and M/s Aggarwal Trading Co., Safidon, for the last many years. It was further R.S.A. No. 2254 of 2008 3 stated that the pronote, had been procured by the plaintiff/respondent, in collusion with the scribe and a witness, after taking advantage of his (defendant/appellant's) illiteracy, at the relevant time. It was further stated that, in fact, some amount, in lieu of the agricultural produce, sold by the defendant/appellant, at the shop of the plaintiff/respondent, was still due to him. It was further stated that, thus, the defendant/appellant, reserves every right, to take legal steps, against the plaintiff/respondent, his brothers, father, and family members, as also their firms, for recovering the outstanding amount, in lieu of the agricultural produce. The remaining averments, were denied, being wrong. 4. On the pleadings of the parties, the following issues were struck:- i) Whether the plaintiff is entitled for recovery of alleged amount? OPP ii) Whether the plaintiff is also entitled for interest? OPP iii) Whether the suit is not maintainable in the present form? OPD iv) Whether the plaintiff has got no cause of action to file the present suit? OPD v) Whether the suit is time barred? OPD vi) Relief. 5. The parties led oral, as well as documentary evidence, in support of their case. 6. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, decreed the suit of the plaintiff/respondent, for recovery. R.S.A. No. 2254 of 2008 4 7. Feeling aggrieved, an appeal was preferred, by the defendant/appellant, which was dismissed, by the Court of District Judge-I, Jind, vide judgement and decree dated 12.04.2008. 8. Still feeling dissatisfied, the instant Regular Second Appeal, has been filed by the defendant/appellant. 9. I have heard the Counsel for the parties, and have gone through the evidence and record of the case. 10. The following substantial question of law arises, in this appeal:- Whether the rate at which the interest, was awarded by the Courts below is excessive? 11. The Counsel for the defendant/appellant, submitted that, it was not proved, that the defendant/appellant, borrowed a sum of Rs. 2,20,000/-, on 05.07.2001, from the plaintiff/respondent, and executed the pronote and receipt, in his favour of the even date. He further submitted that the scribe of the pronote and receipt, was Rajinder, who is the cousin of the plaintiff/respondent. He further submitted that, on the stated thumb impression of the defendant/appellant, on the pronote, his name was not written. He further submitted that Sunhera Singh, attesting witness of the receipt, was not examined. He further submitted that, even the addresses of the scribe and the witness, were not mentioned, on the pronote and receipt. He further submitted that the Courts below, were wrong, in coming to the conclusion, that the defendant/appellant, borrowed a sum of Rs. 2,20,000/-, on 05.07.2001, and executed, the pronote and receipt, in favour of the plaintiff/respondent. He further submitted that the interest awarded by the R.S.A. No. 2254 of 2008 5 Courts below was excessive. He further submitted that the judgements and decrees of the Courts below, being illegal, were liable to be set aside. 12. On the other hand, the Counsel for the respondent, submitted that, sufficient evidence, was produced, to prove the execution of pronote and receipt, by the defendant/appellant, in favour of the plaintiff/respondent, after borrowing a sum of Rs. 2,20,000/-, on 05.07.2001. He further submitted that the mere fact that the scribe of the pronote is the cousin of the plaintiff/respondent, did not mean that, the document, was of doubtful authenticity. He further submitted that the judgements and decrees of the Courts below, being legal and valid, were liable to be upheld. 13. After giving my thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, in my considered opinion, the appeal deserves to be dismissed, with modification for the reasons to be recorded, hereinafter. In Madvan Nair Vs. Bhaskar Pillai (2005) 10, SCC, 533, Harjeet Singh Vs. Amrik Singh (2005) 12, SCC, 270, H.P. Pyarejan Vs. Dasappa, JT 2006(2), SC, 228, and Gurdev Kaur and others Vs. Kaki and others (JT 2006 (5) SC, 72, while interpreting the scope of Section 100 of the Code of Civil Procedure, the principle of law, laid down, was that the High Court, has no jurisdiction to interfere with the findings of fact, arrived at by the trial Court, and first Appellate Court, even if the same are grossly erroneous as the legislative intention was very clear that the legislature never wanted second appeal to become a “third trial on facts” or “one more dice in the gamble.” It was further held that the jurisdiction of the High Court in interfering with the judgements of the Courts below, is confined only to the hearing of substantial questions of R.S.A. No. 2254 of 2008 6 law. Rajinder Kumar, scribe of the pronote and receipt, appeared as PW2, and stated that Jaipal, defendant/appellant, had borrowed a sum of Rs. 2,20,000/-, from the plaintiff/respondent, and executed the pronote P1 and receipt P2, in his favour, on 05.07.2001. He further stated that Jaipal, defendant/appellant, thumb-marked the pronote. Sushil Kumar, PW1, plaintiff/respondent, also made a statement, in line with the statement of Rajinder Kumar, PW2. Nothing could be brought out, during the course of their cross-examination, that the pronote and receipt, were the result of fraud and forgery. The mere fact that the addresses of the witness and the scribe were not written or that the pronote and receipt, were scribed by the cousin of the plaintiff/respondent, did not make the same to be doubtful. The transaction between the parties was not commercial. In my opinion, the interest awarded by the Courts below is on the higher side. The respondent is held entitled to interest @ 12% per annum from the date of suit upto the date of decree and @ 6% per annum from the date of decree till realization on the principal amount. The judgements and decrees need modification to this extent. The concurrent findings, recorded by the Courts below, that Jaipal, defendant/appellant, borrowed a sum of Rs. 2,20,000/-, from the plaintiff/respondent, and executed the legal and valid pronote P1 and receipt P2, on 05.07.2001, in his favour; that the pronote and receipt, were not the result of fraud; and that the pronote was for valuable consideration, being based, on the correct appreciation of evidence, and law, on the point, suffer from no illegality, or perversity, and warrant no interference except the modification referred to above. The judgements and decrees of the Courts below, are liable to be upheld with the modification referred to above. The R.S.A. No. 2254 of 2008 7 substantial question of law, is answered in the manner referred to above. 14. For the reasons recorded above, the instant Regular Second Appeal, is dismissed with the modification that the respondent shall be entitled to interest @ 12% per annum, from the date of suit, till the date of decree, rendered by the trial Court, and @ 6% per annum from the date of decree till realization, on the principal amount. 22.07.2009 (SHAM SUNDER) Amodh JUDGE