RSA No.2818 of 2009 (O&M) -1- ****** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2818 of 2009 (O&M) Date of decision:29.10.2010. Surinder Kumar ...Appellants Versus M/s Thakur Dass Gori Shankar and another ...Respondents CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. P.S.Bhangu, Advocate, , for the appellant. Mr. Rajesh Girdhar, Advocate, for Mr. G.S.Brar, Advocate, for respondent Nos.1 and 2. ***** RAKESH KUMAR JAIN, J. Plaintiff is in second appeal against the judgment and decree of the learned First Appellate Court by which the judgment and decree of the learned Trial Court has been reversed. The plaintiff filed the suit for recovery of an amount of `3,70,360/- alleging therein that defendant No.2 is the sole proprietor of defendant No.1 who had obtained loan of `1,10,000/- on 12.05.2000, `80,000/- on 12.11.2001 and `90,000/- on 11.05.2001 from the plaintiff against hundi and receipt of the respective amounts in the presence of the attesting witnesses. Defendant No.2 agreed to repay the aforesaid loan amount along with interest @ 18% per annum, but despite the request, the amount was not paid, hence the suit was filed for recovery. In defence, the defendants had denied the receipt of loan from the plaintiff and also the execution of hundis. It was averred that the hundis were fabricated by the plaintiff in connivance with the attesting witnesses. On the pleadings of the parties, only two issues were framed by the learned Trial Court. The plaintiff examined himself as PW1, Manoj Kumar as PW2, Manohar Lal as PW3 and Vivek Bansal as PW4, who were marginal witnesses to the hundis Ex.P1, Ex.P2 and Ex.P3 respectively. He RSA No.2818 of 2009 (O&M) -2- ****** also examined Karandeep Sharma as PW5 who brought the record of account No.CC-14218 of M/s Thakur Dass Gauri Shanker (defendant No.1). He proved the copy of signature file Ex.PW4/A containing the signature of Gian Chand Goyal. The plaintiff also examined Harchand Singh as PW6 who proved the application Ex.PW5/A which was submitted to them by defendant No.1 for grant of license. On the other hand, defendant No.2 himself examined as DW2, besides he had examined Ram Aasra, Senior Assistant, Income Tax Office, Moga as DW1 who proved Income Tax returns of the plaintiff for the year 2005-06 as Ex.DW1/A and the Income Tax returns of the defendant No.1 for the years 2001 to 2004 as Ex.DW1/B to Ex.DW1/D. While reversing the finding of the learned Trial Court, the learned First Appellate Court examined the evidence of the plaintiff critically and had opined that his witnesses have failed to support his case because the plaintiff had stated in his cross-examination on 20.04.2004 that earlier he was selling cloths, but the said business was closed 5 years ago, whereas PW4 Vivek Bansal had stated that hundi Ex.P3 dated 12.05.2000 was executed by the plaintiff in his presence. In order to show the presence of PW4 Vivek Bansal at the time of execution of hundi Ex.P3, it is stated by the plaintiff that he had come to purchase cloths at his shop, but the Court had found that the plaintiff had already stated that he had closed his business of selling cloths, therefore, there is no reason for PW4 to be present in his shop at the time when the said hundi was executed. PW4 Vivek Bansal had also stated that he had gone to the shop of the plaintiff to purchase cloths, but, according to the statement of the plaintiff, the shop was already closed 5 years back. It is also found by the learned First Appellate Court that the plaintiff's witnesses have alleged that none of the hundis was scribed in their presence, rather their case was that the hundis were already scribed and defendant No.2 had put his signatures in their presence. After denial by the defendant No.2 of his signatures on the hundis, no effort was made by the plaintiff to prove his signatures although the burden was upon him. Moreover, both the parties were businessmen, but the advancement of loan was not reflected in Income Tax returns of the either parties or in the their account books. It is a matter of common knowledge that RSA No.2818 of 2009 (O&M) -3- ****** the amount of loan is to be reflected in the account books kept by the businessmen even if it is not shown to the Income Tax department, but in the present case no such evidence has been led by the plaintiff to prove that he had entered the said amount in his account books, therefore, in my view, after taking into account the preponderance of evidence, there is no error in the judgment and decree of the learned First Appellate Court. No question of law much-less substantial, as provided under Section 100 of the Code of Civil Procedure, 1908 [for short “CPC”] has been raised by learned Counsel for the appellant in this appeal. Thus, the present appeal is found to be without any merit and the same is hereby dismissed as such. No costs. October 29, 2010 (RAKESH KUMAR JAIN) vinod* JUDGE