RSA No.2168 of 2009 -: 1 :- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2168 of 2009 (O&M) Date of decision: January 14, 2010. Som Nath ...Appellant(s) v. Gurmail Singh ...Respondent(s) CORAM:HON'BLE MR. JUSTICE RAKESH KUMAR GARG Present: Shri Deepak Aggarwal, Advocate, for the appellant(s). Rakesh Kumar Garg, J. (Oral): CM No.6467-C of 2009 After hearing learned counsel for the appellant, delay of 87 days in re-filing this appeal is condoned. RSA No.2168 of 2009 This is plaintiff's second appeal challenging the judgment and decree of the lower appellate court whereby the appeal filed by the defendant-respondent has been accepted and the suit of the plaintiff- appellant for recovery on the basis of the pronote and receipt, has been dismissed with costs. As per the averments made in the suit, on 31.12.2001, defendant-respondent borrowed a sum of Rs.2,90,000/- from the appellant and agreed to return the same along with interest @ 2% per month on demand. In consideration of the borrowed amount, the defendant- RSA No.2168 of 2009 -: 2 :- respondent executed pronote and after receiving the amount, executed a receipt. Despite demand, the defendant-respondent did not return the borrowed amount with agreed interest, thus, a suit for recovery of Rs.4,98,800/- (i.e., Rs.2,90,000/- as principal amount and Rs.2,08,800/- as interest) was filed. The defendant-respondent contested the suit by filing written statement submitting therein that the plaintiff was running a commission agency and the defendant was selling his agricultural produce at his shop. The plaintiff was also selling gur, tea, fertilizer etc. from the aforesaid shop to the agriculturists in cash or credit. Defendant had taken the gur, fertilizer, tea etc. from his shop and had settled the amount with him. It was further submitted that the defendant and his brother Sadhu Singh sold land measuring 15 kanal 11 marlas on 20.5.2002 to the plaintiff and his brother Bhim Sen and nothing was due towards the defendant. The defendant had not borrowed any amount from the plaintiff on interest and the plaintiff in connivance with witnesses forged the pronote and receipt taking advantage of the thumb impressions of the defendant taken during selling crop on his shop. The remaining averments were denied and dismissal of the suit was prayed for. The plaintiff filed replication submitting that there was no business of the plaintiff of selling gur, fertilizer, tea etc. and he never sold these goods on credit to anybody. Defendant never executed any sale deed in favour of the plaintiff and his brother. Defendant had borrowed the sum of Rs.2,90,000/- from the plaintiff on 31.12.2001 and executed pronote and receipt and after admitting the same to be correct, put his thumb impressions. RSA No.2168 of 2009 -: 3 :- From the pleadings of the parties, the following issues were framed:- 1. Whether the defendant has borrowed the amount from the plaintiff and in lieu thereof executed the pronote and receipt relied upon by the plaintiff? OPP 2. Whether the documents relied upon by the plaintiff are forged, fabricated and without consideration? OPD 3. Whether the suit filed by the plaintiff is maintainable? OPP 4. Whether the plaintiff is entitled to recover the amount along with interest as prayed for? OPP 5. Relief.” To prove his case, the plaintiff stepped into witness box as PW1 and produced Bhim Sen (who is brother of the plaintiff-respondent) as PW2 and closed his evidence. Defendant stepped into the witness box as DW2 and also produced hand-writing and finger expert Anil Kumar Gupta as DW1 and closed his evidence. On appreciation of evidence, trial court decreed the suit. While decreeing the suit, the trial court observed as under:- “It is in the pleadings and evidence of the plaintiff that defendant has borrowed Rs.2,90,000/- from the plaintiff and executed pronote Ex.P1 and receipt Ex.P2 dated 31.12.2001. It is in the pleadings and evidence of plaintiff that defendant has agreed to pay interest @ 2% per month. It is in the pleadings and evidence of plaintiff that despite repeated demands and requests, defendant has failed to return the borrowed amount Rs.2,90,000/- with interest. It RSA No.2168 of 2009 -: 4 :- is in the pleadings and evidence of DW2 Gurmail Singh (defendant) that he has never borrowed Rs.2,90,000/- from plaintiff and never executed pronote Ex.P1 and receipt Ex.P2. It is in the pleadings and evidence of DW2 Gurmail Singh that he was selling his agriculture produce at Aarth shop of plaintiff. It is in the pleadings and evidence of DW2 Gurmail Singh that he was taking gur, tea, fertilizer, etc. from the shop of plaintiff and they have sold land 15 kanals 11 marlas to defendant and his brother and settled their account. In the evidence, defendant proved copy of sale deed dated 20.5.2002 Ex.D1. DW1 Anil Kumar Gupta proved his affidavit Ex.DW1/A and report Ex.DW1/1 and negatives and photographs. It is in the evidence of DW1 Anil Kumar Gupta, there is clear cut addition of digit “1” on two places at Mark Q1 to A6 in pronote and receipt to make the writing from 3.2.2001 to 31.12.2001. Portion Mark D1 to D4 have been written later on by the same writer with different pen and ink as compared to the remaining body writing of the pronote and receipt. Disputed writing Mark A to C, E, P are similar in their writing characteristics with the specimen writings of Bhim Sen, Mark S1, S1/A and have been written by one and the same person. Mark D is similar in their writing, characteristics with the specimen writing of Som Nath Mark S2, S2/A, S2/B and have been written by one and the same person. DW1 Anil Kumar Gupta in cross RSA No.2168 of 2009 -: 5 :- examination deposed that science of hand-writing examination is not perfect science, but it is fairly accurate. PW1 Som Nath (plaintiff) proved his affidavit EX.PW1/A. PW2 Bhim Sen proved his affidavit PW2/A. Both P.W.s deposed regarding execution of the pronote Ex.P1 and receipt Ex.P2 and borrowed amount by defendant and agreed to pay interest. Copy of sale deed Ex.D1 is dated 20.5.2002, which is subsequent to pronote P1 and receipt Ex.P2 dated 31.12.2001. Report Ex.DW1/1 of Anil Kumar Gupta, hand-writing and finger prints expert is not sufficient to rebut the presumption attached with pronote Ex.P1 as the science of hand-writing is not perfect science. Although PW2 Bhim Sen in cross examination deposed that he is retaining gur, fertilizer, etc. for agriculturists in his shop. But it has no effect on merit of case. So in view of the above discussion, it is established that defendant has borrowed Rs.2,90,000/- from the plaintiff and executed pronote Ex.P1 and receipt Ex.P2 dated 31.12.2001. despite demands and request, defendant has failed to return the amount Rs.2,90,000/- with interest to the plaintiff. So plaintiff is entitled to recover Rs.2,90,000/- from the defendant with reasonable interest. In the circumstances of the case, reasonable interest is 9% per annum on the borrowed amount. Plaintiff is also entitled to recover future interest. So plaintiff is entitled to recover Rs.2,90,000/- of pronote Ex.P1 and receipt Ex.P2 dated RSA No.2168 of 2009 -: 6 :- 31.12.2001 from defendant with interest @ 9% p.a. From the date of pronote and receipt till filing suit and from the date of filing suit till decree and @ 6% p.a. From the date of decree till realization on principal amount.” Feeling aggrieved from the aforesaid judgment and decree, the defendant-respondent filed an appeal. The lower appellate court found that to prove the execution of the alleged pronote and receipt, the independent witness, namely, Darshan Singh was not examined and was given up and plaintiff-appellant examined Bhim Sen, the other marginal witness of the pronote in question, who was his real brother. The lower appellate court also found that the plaintiff had clearly conceded that he and his brothers were having joint shop earlier and the brother of the plaintiff was also to take some amount from the defendant. It was also found by the lower appellate court that the sale of the land on 20.5.2002 after execution of alleged pronote was also proved on record and no amount was paid before the Tehsildar and it was alleged that the amount of the sale deed was paid before the scribe Major Singh, who was not examined. The lower appellate court also found that the dates and figures in the alleged pronote and receipt were altered. Thus, keeping in view the unreliability of the marginal witness of the pronote, unrebutted evidence of the expert witness with regard to alterations in the pronote and the factum of sale of land after execution of the alleged pronote, the defendant was able to bring on record by preponderance of probabilities the circumstances upon which he had relied and therefore, the onus shifted on the plaintiff to rebut the aforesaid circumstances and in the absence of any rebuttal, the plaintiff's suit was liable to fail and, thus, it was held that suit of the plaintiff was liable to be RSA No.2168 of 2009 -: 7 :- dismissed. Not satisfied with the aforesaid findings of the lower appellate court, the plaintiff has filed the instant appeal challenging the judgment and decree of the lower appellate court submitting that the judgment of the trial court cannot be set aside merely on the ground that marginal witness of the alleged pronote and receipt being brother of the appellant, his statement cannot be relied upon and hence, judgment and decree of the lower appellate court is liable to be set aside and the suit of the plaintiff is liable to be decreed. On the basis of the aforesaid, learned counsel for the appellant has argued that the following substantial questions of law arise for consideration of this court:- 1. Whether the defendant-respondent has borrowed the amount of suit from the plaintiff-appellant and has executed the pronote and receipt? 2. Whether the appellant is entitled to recover the amount along with interest?” I have heard learned counsel for the appellant and perused the judgment and decrees of the courts below. The argument raised by learned counsel for the appellant is without any merit. There is enough evidence on the record to show that there was a fiduciary relationship inter se the parties. Separation between the plaintiff-appellant and his brother, though alleged, was not proved on record. In the pleadings, the appellant-plaintiff had denied the execution of sale deed by the defendant selling land measuring 15 kanal 11 marla in their favour but the same was admitted by the appellant in his statement that they had purchased land measuring 15 kanal 11 marla from the defendant- RSA No.2168 of 2009 -: 8 :- respondent after the execution of the alleged pronote and nothing was paid before the Tehsildar and the amount of the aforesaid sale deed was paid by them before the scribe Major Singh but the aforesaid Major Singh was not examined. Thus, adverse interference had to be drawn against the plaintiff- appellant. The appellant could also not explain with regard to the alterations in the alleged pronote as proved by the expert Anil Kumar Gupta. The execution of the sale deed, which has been admitted by the plaintiff, has rendered the case of the appellant to be totally improbable and unbelievable. The defendant-respondent has been able to bring on record by preponderance of probabilities the circumstances upon which he relied and, thereafter, the onus shifted upon the plaintiff to rebut the same but there is nothing on the record on the basis of which the suit of the plaintiff could succeed. Thus, no fault can be found with the findings recorded by the lower appellate court. No substantial question of law, much less as argued by learned counsel for the appellant, arises in this appeal. Dismissed. January 14, 2010. [ Rakesh Kumar Garg ] kadyan Judge