Regular Second Appeal No. 4969 of 2009 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 4969 of 2009 Date of decision : August 12, 2010 Sat Pal Goyal ....Appellant versus Sanjiv Bansal and others ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. V.B.Aggarwal, Advocate, for the appellant L.N. Mittal, J. (Oral) Defendant no. 1 Satpal Goyal having remained unsuccessful in both the courts below has filed the instant second appeal. Respondents no. 1 and 2 filed suit against appellant and proforma respondent no. 3 for recovery of Rs 4,29,848/- alleging that plaintiff-respondent no. 1 is sole proprietor of plaintiff-respondent no. 2 whereas defendant no. 1-appellant is sole proprietor of defendant no. 2/proforma respondent no. 3. Plaintiffs are wholesale dealers of lotteries whereas defendants are retail dealers of the lotteries. The defendants used to purchase lotteries from the plaintiffs. Ultimately on settlement of account, a sum of Rs 2,94,848/- remained due from the defendants to the plaintiffs as on 13.7.1996. The plaintiffs insisted on payment of the said Regular Second Appeal No. 4969 of 2009 -2- amount and thereupon the defendants stopped purchasing lotteries from the plaintiffs. On 18.1.1997, defendant no. 1 executed pronote and receipt for the aforesaid amount as collateral security and agreed to repay the same with interest thereon @ 1.5% per month. The plaintiffs in the suit claimed Rs 2,94,848/- as the balance due amount and Rs 1,35,000/- as interest thereon till filing of the suit. The defendants completely denied the plaint allegations and raised various other pleas. Learned Additional Civil Judge (Senior Division), Patiala vide judgment and decree dated 31.3.2006 decreed the plaintiff's suit for recovery of Rs 2,94,848/- with interest thereon @ 12% per annum from 18.1.1997 (the date of pronote-cum-receipt) till date of decree of trial court and future interest @ 06% per annum till recovery. First appeal preferred by defendant no. 1 has been dismissed by learned Additional District Judge, Patiala vide judgment and decree dated 25.4.2009. Feeling aggrieved, defendant no. 1 has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Both the courts below on appreciation of evidence have come to concurrent finding of fact that amount of Rs 2,94,848/- was due from the defendants to the plaintiffs and that defendant no. 1 acknowledged the said liability by executing pronote-cum-receipt but the defendants failed to pay the same. The said finding is based on appreciation of evidence and cannot be said to be perverse or illegal so as to warrant interference in second appeal. Regular Second Appeal No. 4969 of 2009 -3- Learned counsel for the appellant vehemently contended that since the amount was allegedly due on account of sale of lotteries by plaintiffs to defendants, the amount cannot be recovered as sale of lotteries being gambling is unlawful. Reliance in support of this contention has been placed on judgment of Hon'ble Supreme Court in M/s B..R. Enterprises versus State of U.P. and others, AIR 1999 SC 1867. The contention cannot be accepted. It is correct that according to aforesaid judgment of Hon'ble Apex Court, lottery is gambling. However, it has not been laid down that the lottery is unlawful. On the other hand, the aforesaid judgment is in the context of Inter-State trade and commerce within the purview of Article 301 of the Constitution of India. The dispute arose regarding sale of lotteries of one State in another State. It was contended that State cannot prohibit sale of lottery of another State in view of Article 301 of the Constitution of India. In this context, it was observed that sale of lottery is not trade or commerce within the purview of Article 301 of the Constitution of India. On the contrary, it was held that State has authority to run lotteries although State also has power to prohibit sale of lotteries of other States. Lotteries (Regulation) Act, 1998 permits running of lotteries by State. It is, thus, manifest that State lotteries are not unlawful. Learned counsel for the appellant vehemently contended that it is no where the case of the plaintiffs that amount pertains to sale of State lotteries. The contention although attractive on first blush cannot be accepted because the defendants in their written statement did not raise any objection that the sale of lotteries for which the amount was claimed from the plaintiffs was illegal or unlawful. If any such plea had been raised by Regular Second Appeal No. 4969 of 2009 -4- the defendants, the plaintiffs would have got opportunity to respond to the same and to plead and prove that the amount was on account of sale of State lotteries which was not lawful. In this view of the matter, the contention raised by learned counsel for the appellant cannot be accepted. Learned counsel for the appellant next contended that according to pronote and receipt, the amount was paid in cash whereas according to plaint allegations, the amount was due on account of sale of lotteries. The contention cannot be accepted. Perusal of photostat copy of the pronote and receipt shown by counsel for the appellant reveals that the appellant executed the pronote-cum-receipt in lieu of consideration of Rs 2,94,848/- received by defendant no. 1. It is no where mentioned in the pronote-cum-receipt that the amount had been paid in cash. On the other hand, the plaintiffs have led evidence not only regarding execution of pronote-cum-receipt but also regarding the aforesaid amount being due on account of sale of lotteries and settlement of account between the parties. It is, thus, apparent that pronote-cum-receipt was executed as collateral security for the due amount. For the reasons aforesaid, I find no merit in the instant second appeal. No question of law much less substantial question of law arises for determination in the instant second appeal. The appeal is accordingly dismissed in limine. ( L.N. Mittal ) August 12, 2010 Judge 'dalbir'