R. S. A. No. 1084 of 2011 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 1084 of 2011 (O&M) Date of Decision : May 10, 2011 Jarnail Singh .... Appellant Vs. M/s K. Sandhu and sons .... Respondent CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Rajinder Singh Aulakh, Advocate for the appellant. * * * L. N. MITTAL, J. (Oral) : C. M. No. 3007-C of 2011 : Allowed as prayed for. C. M. No. 3008-C of 2011 : For reasons mentioned in the application, which is accompanied by affidavit, delay of 12 days in re-filing the appeal is condoned. C. M. No. 3009-C of 2011 : Allowed as prayed for. C. M. No. 3010-C of 2011 : R. S. A. No. 1084 of 2011 (O&M) 2 Allowed as prayed for. Main Appeal : Defendant Jarnail Singh, who has been partly unsuccessful in both the courts below, has filed the instant second appeal. Respondent-plaintiff M/s K. Sandhu and sons through Proprietor Kabal Singh filed suit against defendant-appellant for recovery of Rs. 2,49,748/- i.e. Rs. 2,01,410/- as principal amount and Rs. 48,338/- as interest @ 12% per annum . Plaintiff's case is that plaintiff is running business as Commission Agent, whereas defendant is agriculturist and use to sell his produce at the shop of plaintiff. Defendant had been taking various advances on different dates, as detailed in the plaint and amounts of crop sold by the defendant were credited in his account. Ultimately, a sum of Rs.2,01,410/- remained due as principal amount from the defendant at the end of the year 2002. The defendant failed to pay the same. Accordingly, the instant suit was filed by the plaintiff. The defendant broadly denied the plaint allegations. It was also pleaded that some of the entries in account books of the plaintiff do not bear signatures or thumb impressions of the defendant. Plaint averments were broadly controverted. Some other pleas were also raised. Learned Civil Judge (Junior Division), Zira, vide judgment and decree dated 14.12.2009, partly decreed the plaintiff's suit for recovery of Rs.1,23,778/- with interest thereon @ 6% per annum from the date of filing R. S. A. No. 1084 of 2011 (O&M) 3 of suit till recovery. First appeal preferred by the plaintiff has been dismissed by learned Additional District Judge, Ferozepur, vide judgment and decree dated 20.07.2010. Feeling aggrieved, defendant has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. The instant suit was filed on 15.10.2004. Entries Exs. P-1 to P-11 for advancement of various amounts exceeded the period of three years preceding the filing of the suit, and therefore, amounts of the said entries have been disallowed to the plaintiff, although crop amount of Rs.55,568/- sold during the said period was held adjusted against part of the said amounts. Even out of the balance amount, which was within limitation, some more amount has been disallowed to the plaintiff as one entry was not signed/thumb marked by the defendant. This is how the suit has been decreed for the balance principal amount of Rs.1,23,778/- only. Plaintiff has proved his case by himself appearing in the witness box and also by examining his Munim/Accountant. In addition to it, the plaintiff has proved that the plaintiff paid Rs.1,48,000/- vide cheque dated 24.11.2001 (Ex.P-16) and Rs.50,000/- by cheque dated 04.05.2001 (Ex.P-17) to the defendant. Suit has been decreed for lesser amount than even the cheque amounts. Payment of the cheque amounts has been established beyond doubt. The plaintiff has adjusted the amount of crops R. S. A. No. 1084 of 2011 (O&M) 4 sold by the defendant. In the aforesaid circumstances, no fault can be found with the concurrent finding recorded by the courts below for partly decreeing the plaintiff's suit. Learned counsel for the appellant vehemently contended that plaintiff's Accountant stated that they are maintaining two sets of bahis i.e. one set of katcha bahis and another set of pacca bahis and only pacca bahis are checked by the Income Tax Department. It is also pointed out that plaintiff's Proprietor stated that bahis in question have not been checked by Income Tax authorities. On the basis of these statements, it was contended that bahi entries are not reliable. The contention cannot be accepted. Even plaintiff's Proprietor stated that their bahis are checked by the Income Tax authorities, but by the time, he appeared in the witness-box, the bahis in question had not been checked by the Income Tax Authorities. There is thus no contradiction in the statements of the aforesaid two witnesses. At the risk of repetition, it may be highlighted that payment of Rs.1,98,000/- was made to the defendant by way of cheques, whereas the suit has been decreed for much lesser amount of Rs.1,23,778/- only. In addition to it, courts below have also not awarded interest for pre-suit period to the plaintiff. For the reasons aforesaid, I find no merit in the instant second appeal. Concurrent finding recorded by the courts below thereby partly R. S. A. No. 1084 of 2011 (O&M) 5 decreeing the plaintiff's suit does not warrant interference in second appeal at the instance of defendant-appellant, as the said finding is not shown to be perverse or illegal nor it is based on misreading or misappreciation of evidence. No question of law, much less substantial question of law, arises for determination in the instant second appeal. Fate of the lis depends upon finding of fact. Lower appellate court is the final court of fact. Accordingly, the appeal is found to be lacking any merit and is, therefore, dismissed in limine. May 10, 2011 ( L. N. MITTAL ) monika JUDGE