RSA No.5066 of 2010 (O & M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.5066 of 2010 (O & M) Date of Decision: 06.01.2011. Amar Singh .....Appellant Versus M/s Chiman Lal & Sons, Commission agents ……Respondent Coram:- HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr.Ajay Kumar Sharma, Advocate for the appellant. L. N. MITTAL, J (ORAL) Defendant-Amar Singh, having lost in both the Courts below, is in second appeal. Respondent-plaintiff-M/s Chiman Lal & Sons (Commission agents) filed suit for recovery of Rs.68000/- against the defendant-appellant alleging that the defendant is an agriculturalist. On his request, the plaintiff opened defendant's account in its account books. There were reciprocal demands between the parties. Defendant used to sell his agricultural produce through the plaintiff and also used to take advance amounts as loan. On 16.05.2003, the defendant after inspecting the account books of the plaintiff, confirmed outstanding balance amount of Rs.46,500/- to be due from the defendant to the plaintiff. Entry to this effect was made in account books of the plaintiff. The said entry was signed by the defendant. Thereafter defendant borrowed some more amounts from the plaintiff on different dates. Some bonus amount was RSA No.5066 of 2010 (O & M) -2- credited in his account. Accordingly, a sum of Rs.60081.90P remained due from the defendant to the plaintiff as principal amount. After 01.09.2003, the defendant did not come to the plaintiff to pay due amount or to sell agricultural produce. The plaintiff, therefore, claimed Rs.60081.90P as principal amount, Rs.7,533.10P as interest for pre suit period at the agreed rate of 24% per annum and Rs.385/- as charges of legal demand notice served on the defendant, thereby filing suit for recovery of total amount of Rs.68000/-. The defendant controverted the plaint allegations. It was denied that running current account of defendant was opened in account books of the plaintiff. The defendant, however, admitted that he used to sell his crops through the plaintiff and used to receive the price thereof. The defendant alleged that he never took any loan from the plaintiff. He also denied the entry dated 16.05.2003 regarding balance amount of Rs.46,500/- and also pleaded that the said entry is not properly stamped. Borrowing of various other amounts thereafter was also denied. The defendant brought agricultural produce to the shop of plaintiff on 03.10.2003 and went home on 04.10.2003 requiring the plaintiff's partner to look after the produce. On 05.10.2003, when defendant visited the plaintiff's shop, he found his paddy crop not lying there. Plaintiff's partner claimed it to be his own crop. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Fazilka vide judgment and decree dated 20.03.2009 decreed the plaintiff's suit for recovery of principal amount of Rs.60081.90P with interest thereon at the rate of 10% per annum with effect from 01.09.2003 till RSA No.5066 of 2010 (O & M) -3- filing of the suit and 6% per annum from the date of filing of the suit till recovery. First appeal preferred by defendant has been dismissed by learned Additional District Judge, Ferozepur vide judgment and decree dated 09.09.2010. Feeling aggrieved, defendant has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Both the Courts below have appreciated the evidence and come to concurrent finding in favour of plaintiff-respondent. The defendant in his cross-examination admitted that he had business dealings with the plaintiff and had been taking loan/advances from the plaintiff. In the written statement, defendant had pleaded that he never took any loan from the plaintiff. Thus version of the defendant pleaded in the written statement stands falsified by his own testimony. In addition to it, the defendant in cross-examination even denied his signatures on Vakalatnama given by him in favour of his counsel. It is thus manifest that the defendant was falsely denying his signatures on various documents put to him in cross-examination. Concurrent finding of fact recorded by the Courts below does not warrant interference in second appeal as the same is not shown to be perverse or illegal nor the same is based on misreading or misappreciation of evidence. Learned counsel for the appellant vehemently contended that entry dated 16.05.2003 regarding balance confirmation of Rs.46,500/- is an acknowledgment, but is unstamped and, therefore, cannot be used as evidence even for collateral purposes. Reliance in RSA No.5066 of 2010 (O & M) -4- support of this contention has been placed on judgment of this Court in the case of Haryana State Electronics Development Corporation Limited versus Mrs. Shashi Kapoor and others, 2009-4 PLR 288 and judgment of Delhi High Court in the case of Dhan Prakash Gupta versus Jai Narain Goel, 1997-1 PLR (Delhi Section) 14. According to ratio of law laid down in these judgments, document not properly stamped cannot be used even for collateral purposes. There is no dispute with the legal proposition. In the instant case, however, the disputed entry cannot be said to be acknowledgment of debt. On the other hand, it is the plaintiff's case that there was current running account of the defendant in account books of the plaintiff. Even the defendant in the witness box admitted that he had been selling his produce at the shop of the plaintiff and also had been taking advances from the plaintiff. On 16.05.2003, the defendant after settling the account confirmed the balance entry of Rs.46,500/-. The said entry cannot be said to be an acknowledgment of debt for the purpose of stamp duty within the meaning of 'acknowledgment' mentioned in Article 1 of Schedule I to the Stamp Act. However, even assuming it to be 'acknowledgment' for the said purpose, the said document could be impounded and could be admitted in evidence on payment of requisite stamp duty and penalty. However, Courts below did not find it to be acknowledgment and, therefore, it was not impounded. On the other hand, the said document could be admitted in evidence even if deemed to be acknowledgment, on payment of stamp duty and penalty. The plaintiff, therefore, cannot be non-suited on the basis of RSA No.5066 of 2010 (O & M) -5- this hypothetical and technical argument because if the Courts below had found the document to be acknowledgment, plaintiff would have paid requisite stamp duty and penalty and thereupon the document would have been admitted in evidence. The contention is otherwise also not sustainable as already noticed. 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 this second appeal. The appeal is accordingly dismissed in limine. 05.01.2011. ( L. N. MITTAL ) A. Kaundal JUDGE