RSA No.2592 of 2010 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH RSA No.2592 of 2010 (O&M) Date of decision : 20.9.2011 ... Amrik Singh ................Appellant vs. M/s Hind Iron Store .................Respondent Coram: Hon'ble Mr. Justice K.C. Puri Present: Sh. Nakul Sharma, Advocate for the appellant. ... K.C. Puri, J. There is a delay of 218 days in filing the present appeal. The same stands condoned on the grounds mentioned in the application. Challenge in this appeal is to the judgment and decree dated 2.4.2009 passed by Sh. J.S. Chohan, Additional District Judge, Ferozepur, vide which the appeal preferred by the defendant- appellant against the judgment and decree dated 4.11.2008 passed by Sh. Jagdeep Singh Marok, PCS, Additional Civil Judge (Senior Division), Zira, was dismissed. Briefly stated, M/s Hind Iron Store filed suit for recovery of Rs.45,200/- (Rs. 38,750/- on account of principal amount and Rs.6,450/- on account of interest). It is pleaded that the plaintiff firm is the sole proprietorship concern and Sh. Chander Kant Mittal is the sole proprietor of the firm. Bill No. 1235 was issued to the defendant RSA No.2592 of 2010 -2- against the purchase of 250 bags of Gujrat Ambuja Cement from the shop of the plaintiff on credit @ Rs.155/- per bag. The receipt was acknowledged by the defendant on the letter pad in favour of the plaintiff firm. The plaintiff-firm maintained the regular account books. The amount of Rs.38,750/- was outstanding in respect of purchase of cement by the defendant. On put to notice, defendant filed the written statement taking preliminary objections regarding maintainability of the suit, that the plaintiff has not come to the Court with clean hands. It is further pleaded that it is not clear from the version of the plaintiff whether the cement was delivered to M/s Amrik Cement Store or to Amrik Singh. The said receipt dated 19.3.2004 is forged and fabricated document. Defendant never purchased any cement. Replication was filed denying the contents of the written statement and reiterating the stand taken in the plaint. From the pleadings of the parties, following issues were framed:- 1. Whether plaintiff is entitled for recovery of suit amount? OPP 2. Whether plaintiff is entitled to interest, if so at what rate? OPP 3. Whether suit is not maintainable? OPD 4. Whether plaintiff has no cause of action to file the present suit? OPD 5. Relief. The plaintiff in order to prove his case, appeared as PW-1 RSA No.2592 of 2010 -3- and also examined PW-2 Anil Kumar Gupta, Finger Print and Handwriting Expert. In rebuttal, the defendant Amrik Singh himself appeared as DW-1. Learned trial Court after appraisal of the evidence, reached to the conclusion that defendant has purchased 250 bags of cement valuing Rs.38,750/- and decreed the suit of the plaintiff for that amount alongwith interest @ 9% per annum from 19.3.2004 till the filing of the suit and @ 6% per annum from the date of institution of the suit till its realization. Feeling dissatisfied with the above said judgment, the defendant-appellant preferred the Ist appeal. The said appeal was dismissed vide judgment dated 2.4.2009. Still feeling unsatisfied with the judgment and decree dated 2.4.2009 passed by Sh. J.S. Chohan, Additional District Judge, Ferozepur, and the judgment and decree dated 4.11.2008 passed by Sh. Jagdeep Singh Marok, PCS, Additional Civil Judge (Senior Division), Zira, the present regular second appeal has been filed. The appellant in paragraph No. 5 of the grounds of appeal has mentioned that following substantial questions of law have arisen in the present appeal, for consideration:- i) Whether the learned trial Court could decide the issues jointly when both the issues have to be decided separately? ii) Whether the law required deciding each and every issue separately after discussing the same and after rendering pleadings? RSA No.2592 of 2010 -4- iii)Whether the learned courts below can reject the report of the handwriting and finger print expert, which was in favour of the appellant? iv)Whether the learned courts below are bound to discuss the evidence of both the parties while deciding issues? v) Whether the respondent is entitled for the recovery of suit, while it has been contended by the appellant that receipt does not bear signatures of appellant? Counsel for the appellant has submitted that defendant appellant is also running the business of cement, so there was no question of purchasing any cement from the plaintiff. The receipt is forged and fabricated document. The report of hand writing expert is not sufficient to fasten the liability on the defendant. Both the Courts below have wrongly accepted the report of the hand writing expert in favour of plaintiff. Both the Courts below have not properly appreciated the evidence on the file. The suit of the plaintiff has been wrongly decreed and prayer has been made for acceptance of the appeal. However, counsel for the appellant could not point that there are two reports of experts and that defendant has produced any expert in this case. So, in these circumstances he could not press point (iii) mentioned above. I have given my thoughtful consideration to the submissions made by counsel for the appellant and have also gone through the case file. The sole controversy in the present lis revolves around the receipt of 250 bags of cement by defendant-appellant and issuance of RSA No.2592 of 2010 -5- receipt by the defendant. To prove the said fact, plaintiff has appeared as his own witness and he also examined hand writing expert. The bill Exhibit P-1 alongwith entries in the accounts book Exhibits P-3 and P-4 have been placed on the file. Besides this, notice Exhibit P-5, postal receipt Exhibit P-6 and acknowledgment Exhibit P-7 have been placed on the file. In rebuttal, the defendant-appellant has suffered a self serving statement and has not led any evidence. Both the Courts below gave a concurrent finding of fact that the plaintiff has been able to prove that 250 bags of cement were supplied to the defendant under the bill Exhibit P-1, which was acknowledged vide receipt Exhibit P-2. The plaintiff has also proved the said fact by proving the account books. The legal notice was served upon the defendant, which was duly received as per acknowledgment Exhibit P-7. No reply has been sent. So, in these circumstances, the concurrent finding of fact recorded by both the Courts below regarding the execution of the receipt Exhibit P-2 and supplying the bags of cement does not call for any interference. The appellant has simply challenged the factual aspect in the regular second appeal and that cannot be allowed in view of Section 100 CPC. Both the Courts below have discussed each and every aspect of the case argued before them. There is nothing on the file that judgments of both the Courts below is a result of mis- reading and mis-interpreting of evidence on the file. In view of the above discussion, the substantial questions of law raised by the appellant stands determined against him. Consequently, the appeal is without any merit and the same stands dismissed. RSA No.2592 of 2010 -6- A copy of the judgment be sent to the trial Court for compliance. ( K.C. Puri ) 20.9.2011 Judge chugh