Regular Second Appeal No. 2045 of 2009 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 2045 of 2009 Date of decision : July 29, 2010 Amarjit Singh ....Appellant versus Kaptan Singh ....Respondent Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Amit Jhanji, Advocate, for the appellant Mr. Gurcharan Dass, Advocate, for the respondent L.N. Mittal, J. (Oral) Defendant Amarjit Singh has filed the instant second appeal. Kaptan Singh respondent filed suit against the appellant for recovery of Rs 62,524/- alleging that the defendant on 15.11.2002 borrowed Rs 40,600/- from the plaintiff and agreed to repay the same with interest @ 2% per month and executed pronote and receipt for the same but the defendant did not pay any amount in spite of service of notice. The plaintiff in the suit claimed interest @ 1.50% per month only. Accordingly, the plaintiff filed suit for recovery of Rs 40,600/- as principal amount and Rs 21,924/- as interest amount till filing of the suit i.e. for total amount of Rs 62,524/-. The defendant denied the plaint allegations. The defendant Regular Second Appeal No. 2045 of 2009 -2- denied having borrowed any amount from the plaintiff or having executed any pronote or receipt. Various other pleas were also raised. Learned Civil Judge (Junior Division), Jagraon vide judgment and decree dated 1.10.2007 dismissed the plaintiff's suit. However, first appeal preferred by the plaintiff has been allowed by learned Additional District Judge, Ludhiana vide judgment and decree dated 14.11.2008 and thereby plaintiff's suit for recovery of Rs 62,524/- has been decreed with costs alongwith interest @ 6% per annum on the principal amount from the date of filing of the suit till recovery. Feeling aggrieved, the defendant has preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. On the preceding date of hearing, learned counsel for the plaintiff-respondent raised preliminary objection that the instant second appeal is not maintainable as the appellant has not complied with provision of Order 41 Rule 1(3) of the Code of Civil Procedure (in short, CPC) requiring the appellant filing appeal against decree for payment of money to deposit the amount disputed in the appeal or to furnish security in respect thereof. However, on the basis of non-compliance with the aforesaid provision, the appeal itself cannot be dismissed and rather stay of execution of the decree appealed against may be declined. It has been so held by Hon'ble Supreme Court in Kayamuddin Shamsuddin Khan versus State Bank of India, 1998 (8) Supreme Court Cases 676, Malwa Strips Private Limited versus Jyoti Limited, 2009(2) Supreme Court Cases 426 and Nahar Industrial Enterprises Limited versus Hong Kong and Regular Second Appeal No. 2045 of 2009 -3- Shanghai Banking Corporation, 2009(8) Supreme Court Cases 646. Consequently, the preliminary objection raised by counsel for the respondent is over-ruled. On merits, learned counsel for the appellant contended that both attesting witnesses of pronote-cum-receipt were shaken in cross- examination when they denied having attested any receipt and rather stated that defendant had not executed any receipt. The contention cannot be accepted as also rightly repelled by the lower appellate court. The plaintiff besides himself entering into witness box has examined both attesting witnesses of pronote-cum-receipt and both of them stated according to plaintiff's version that defendant had borrowed Rs 40,600/- from the plaintiff and executed pronote and receipt. The statements made by the attesting witnesses in cross-examination that receipt was not executed may appear to support the aforesaid contention of counsel for the appellant but in fact not much weight can be attached to the so called discrepancy in the statements of the attesting witnesses. They are rural rustic villagers. In common parlance pronote-cum-receipt which is a single document is always referred to as pronote. Even most of the advocates refer to pronote-cum- receipt as pronote. Consequently, if the attesting witnesses stated in the cross-examination that only pronote was executed and receipt was not executed, it does not make their statements unreliable in any manner. On the other hand, both the said attesting witnesses Maghar Singh PW1 and Sukhwinder Singh PW2 categorically deposed that the defendant had borrowed Rs 40,600/- from the plaintiff and executed pronote-cum-receipt which was attested by both these witnesses. Pronote-cum-receipt is single Regular Second Appeal No. 2045 of 2009 -4- document and its execution has been deposed to by both the witnesses. Consequently, it cannot be said that their statements have been shaken or impeached in any manner in cross-examination. It may be added that the trial court non-suited the plaintiff on entirely erroneous and untenable basis. It was observed by the trial court that there was no pleading regarding execution of pronote and receipt and on this false premise, ignored the statements of both the attesting witnesses of the document being beyond pleadings. However, there is specific pleading in the plaint that pronote and receipt had been executed by the defendant. Consequently, statements of both these witnesses could not be excluded from consideration. Plaintiff's evidence is cogent and reliable. Finding of lower appellate court is supported by cogent reasons. Lower appellate court is final court of fact. It cannot be said that the finding arrived at by the lower appellate court could not be arrived at by any reasonably prudent man on the basis of the material on record. The said finding is not shown to be perverse or illegal warranting interference in the second appeal. No question of law much less substantial question of law arises for determination in the instant second appeal. For the reasons recorded hereinabove, I find no merit in the instant second appeal which is accordingly dismissed. ( L.N. Mittal ) July 29, 2010 Judge 'dalbir'