RSA No.898 of 2011 (O & M) - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.898 of 2011 (O & M) Date of Decision: 22.02.2011 Bhupinder Singh ……Appellant Versus Urmila Devi and others …...Respondents Coram: HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Ashish Gupta, Advocate for the appellant. Mr. N. K. Manchanda, Advocate for caveator-respondent No.2. L.N. MITTAL, J (ORAL) CM NO.2458-C of 2011 Allowed as prayed for. Main appeal. Defendant-Bhupinder Singh, having lost in both the Courts below, has filed the instant second appeal. Suit was filed by Budhi Singh-plaintiff (since deceased and represented by respondents as his legal representatives) against the defendant-appellant for recovery of Rs.46000/- alleging that the defendant-appellant representing himself to be general attorney of his uncle Sukhdev Singh, agreed to sell a house belonging to Sukhdev Singh to the plaintiff for Rs.2,50,000/- and received Rs.35000/- as earnest money and executed writing for the same. However, defendant RSA No.898 of 2011 (O & M) - 2 - did not execute requisite sale deed. The plaintiff then directly purchased the said house from Sukhdev Singh by paying him total consideration of Rs.2,50,000/- as Sukhdev Singh refused to adjust the amount of Rs.35000/- which had been received by the defendant. Accordingly, the plaintiff claimed recovery of principal amount of Rs.35000/- and interest amount of Rs.11000/- on the basis of receipt dated 12.02.2004 Defendant resisted the suit and broadly denied the plaint allegations. The defendant denied having executed the alleged receipt. It was pleaded that both the parties were employed in the same Bank. The defendant sometimes used to give blank signed paper for submitting leave application on account of some emergency or urgent work. The said blank paper may have remained unused and came in the hands of the plaintiff, who prepared alleged receipt dated 12.02.2004 on the said paper. Designation of the defendant as SFO (Senior Field Officer) is also mentioned below his signature depicting that he had affixed the said signature for the purpose of some official work of the Bank. The defendant denied having received Rs.35000/- from the plaintiff. Various other pleas were also raised. Learned Civil Judge (Junior Division), Faridkot vide judgment and decree dated 20.08.2010 decreed the plaintiff's suit. First appeal preferred by defendant has been dismissed by learned Additional District Judge, Faridkot vide judgment and decree dated 06.12.2010. Feeling aggrieved, defendant has filed the instant second appeal. I have heard learned counsel for the parties and perused the case file. The defendant in his written statement itself has impliedly admitted his signature on receipt Ex.P-1 relied on by the plaintiff. RSA No.898 of 2011 (O & M) - 3 - Defendant's explanation that he had given blank signed paper for submitting his leave application is completely falsified by the defendant's own testimony. The defendant stated in cross-examination that he had given such blank signed papers 2-3 times to Sant Singh for the purpose of leave applications and every time the said papers were used for submitting his leave applications. Consequently, there was no surplus unconsumed blank signed paper which could fall in the hands of the plaintiff for preparation of receipt Ex.P-1. Secondly, even in the written statement, the defendant did not take a definite stand that any such blank signed paper had been used by the plaintiff to prepare receipt Ex.P-1. On the contrary, the defendant used the word 'may be' to plead that blank paper may have remained unused and fell in the hands of the plaintiff, who prepared the receipt Ex.P-1. Thirdly, it is not explained as to how any such unused blank signed papers came into the hands of the plaintiff. The defendant stated in the witness box that every time he gave unsigned blank paper to one Sant Singh, who submitted leave application every time on behalf of defendant. Consequently, there was no question of any surplus unconsumed blank signed paper having fallen into the hands of the plaintiff when every time the blank signed paper was actually used by Sant Singh to submit leave application on behalf of defendant. Fourthly, in view of version of the defendant that he had given the blank signed papers to Sant Singh, it was most essential for the defendant to have examined said Sant Singh as witness. However, Sant Singh has not been examined as witness and consequently, strong adverse presumption arises against the defendant. Fifthly, since defendant has admitted his signature on receipt Ex.P-1, then it was for him to prove that the said receipt was not executed by him. Defendant is not illiterate person. He is well-educated and was employed in a senior position in Bank. Consequently, the onus shifted to the defendant to prove that he had not executed receipt Ex.P-1. However, defendant has miserably failed to prove the same as there is only solitary bald and self- RSA No.898 of 2011 (O & M) - 4 - serving oral statement of the defendant in support of his version. Sixthly, the defendant has himself produced evidence that an application was moved by the plaintiff before the Police and thereupon the police recorded joint statement Ex.DW-3/A of Sant Singh and Jaswinder Singh. Both of them stated therein that the plaintiff had paid Rs.35000/- to the defendant. Consequently, this evidence led by the defendant himself proves the plaintiff's case. Moreover, in view of statement Ex.DW-3/A jointly made by Sant Singh and Jaswinder Singh before the Police as proved by the defendant himself, non-examination of Sant Singh as witness in the instant suit assumes further significance and goes against the defendant. It is thus manifest that the plaintiff's case was proved even by defendant's own pleadings, evidence and admissions, besides evidence of the plaintiff. Consequently, non-examination of attesting witness of receipt Ex.P-1 by the plaintiff pales into insignificance. Defendant received Rs.35000/- from the plaintiff as earnest money representing that defendant was attorney of his uncle Sukhdev Singh. However, in the witness box, the defendant stated that Sukhdev Singh appointed the defendant as attorney on 22.07.2004. In other words, the defendant was not attorney of his uncle Sukhdev Singh on 12.02.2004, when the defendant representing himself to be attorney of Sukhdev Singh received the amount of Rs.35000/- from the plaintiff. Consequently, defendant is liable to refund the said amount to the plaintiff with interest at reasonable rate. Here it may be added that the plaintiff subsequently purchased the suit house in the name of his son directly from Sukhdev Singh by paying the total sale consideration to Sukhdev Singh, without adjustment of Rs.35000/- earlier paid to the defendant. Learned counsel for the appellant contended that receipt Ex.P- 1 purports to be an agreement to sell, but it is unstamped and, therefore, it cannot be admitted in evidence. The contention although prima facie RSA No.898 of 2011 (O & M) - 5 - attractive is in fact devoid of merit. No objection to the admissibility of this document in evidence on the ground of being unstamped was taken, when the document was produced in evidence. Consequently, this document now cannot be called in question on the ground that it has not been duly stamped. Section 36 of the Indian Stamp Act, 1899 stipulates that where an instrument has been admitted in evidence, such instrument shall not (except as provided in Section 61 by way of revision regarding sufficiency of stamp) be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped. In view of this categorical and mandatory statutory provision, document Ex.P-1 cannot be called in question at this stage on the ground of being unstamped. Moreover, even if the document may not be used as agreement, it can be used for collateral purpose to prove payment of Rs.35000/- by the plaintiff to the defendant. There is concurrent finding recorded by both the courts below in favour of the plaintiff. The said finding is fully justified by the evidence on record and is supported by cogent reasons. The said finding is not shown to be perverse or illegal in any manner nor it is based on misreading or misappreciation of evidence. Consequently the said finding recorded by both the Courts below does not warrant interference in second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is thus found to be lacking any merit and is accordingly dismissed in limine. (L. N. MITTAL) JUDGE 22.02.2011 A.kaundal