R.S.A.No. 4901 of 2009 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 4901 of 2009 (O&M) Date of decision: 23.12.2009 Kartar Singh ......Appellant Versus Mohan Lal .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.G.S.Nahel, Advocate for the appellant. **** SABINA, J. Plaintiff-respondent filed a suit for recovery, which was decreed by the Additional Civil Judge (Sr.Divn.), Sunam vide judgment and decree dated 16.1.2006. In appeal, the said judgment and decree were upheld by the Additional District Judge, Sangrur vide judgment and decree dated 26.2.2009. Hence, the present appeal by the defendant. Brief facts of the case, as noticed by the lower appellate Court in para Nos. 2 and 3 of its judgment, are as under:- “2. Brief facts of the case are that the plaintiff firm M/s Verma Trading Company, Dirba is a commission R.S.A.No. 4901 of 2009 (O&M) 2 agency and Mohan Lal is its Sole Proprietor and the firm is a income tax assessee. It is further averred that on 10.05.2001 the defendant took a loan of Rs. 2,50,000/- from the plaintiff firm alongwith interest @ 1.5% per month and executed the pronote and receipt in favour of the plaintiff in the presence of witnesses. The defendant appended his thumb impressions on the pronote and receipt after admitting the same to be correct. The loan amount was also entered by the plaintiff in his account books. The loan amount was to be paid on demand. It is averred that the defendant is a clever person and in order to grab the amount of pronote and interest, he filed a suit for rendition of account against the plaintiff, whereas nothing was due of defendant towards the plaintiff. The defendant was requested to make payment of the pronote amount, but he flatly refused to do so. Hence this suit has been filed. 3. In pursuance to the notice, the defendants appeared and contested the suit of the plaintiff. In his written statement the defendant took certain legal objections regarding cause of action, locus-standi, maintainability, estoppel, provisions of Order 7 Rule 17 CPC being not complied and suit being filed on wrong facts. On merits, the averments of the plaint are denied R.S.A.No. 4901 of 2009 (O&M) 3 as alleged. As a matter of fact, the defendant has already filed a suit for rendition of account against the plaintiff as he did not give account from Harri 1998 to Sauni 2000 and the plaintiff has filed present suit to put pressure upon him. The plaintiff also obtained thumb impression of defendant on blank pronote and receipt. The defendant prayed for dismissal of the suit filed by the plaintiff. On the pleadings of the parties, following issues were framed by the trial Court:- 1. Whether on 10.5.2001, defendant borrowed a sum of Rs. 2,50,000/- from plaintiff and executed a pronote and receipt in his favour?OPP 2. Whether plaintiff is entitled to recovery of loan amount and interest as prayed for?OPP 3. Whether suit is not maintainable in present from?OPD 4. Whether plaintiff has no cause of action and locus- standi to file present suit?OPD 5. Whether plaintiff is estopped to file present suit from his own act and conduct?OPD 6. Whether suit is barred U/o 7 Rule 17 CPC?OPD 7. Whether suit is not properly valued for the purpose of Court fee and jurisdiction?OPD 8. Relief. R.S.A.No. 4901 of 2009 (O&M) 4 After hearing learned counsel for the appellant, I am of the opinion that the present appeal deserves to be dismissed. The plaintiff had filed a suit for recovery on the basis of pronote and receipt dated 10.5.2001. A perusal of the pronote and receipt (copy of the same shown during the course of arguments) reveals that the same are thumb marked by the appellant. The plaintiff, in order to prove his case, appeared in the witness box as PW-1 and deposed with regard to execution of the pronote and receipt by the defendant in his favour. The plaintiff also examined the handwriting expert to substantiate his plea that the pronote and receipt were duly thumb marked by the defendant. Learned counsel for the appellant has submitted that the handwriting expert PW-2 had been dis-believed by this Court in Civil Revision No.3500 of 1999 titled Gurdev Kaur and another vs. Harbans Kaur and others as the academic qualification of the expert was only B.A. However, a perusal of the cross-examination of the handwriting expert (shown during the course of arguments) reveals that nothing was put to the witness qua his qualification. Cross-examination of PW-2, handwriting expert, reads as under:- “ It is wrong to suggest that the Hon'ble Punjab and Haryana High Court disbelieved my report. It is wrong to suggest that I have prepared a false report at the instance of plaintiff. It is wrong to suggest that I am deposing falsely.” R.S.A.No. 4901 of 2009 (O&M) 5 Thus, the handwriting expert, who was examined in the year 2003, has not been cross-examined qua his qualification. He might have improved his qualification after the decision of the Civil Revision in the year 1999. Even if no reliance is placed on the report of the handwriting expert, even then there is no material on record to suggest that the pronote and receipt in question did not bear the thumb impressions of the appellant. Moreover, the plea of the appellant is that his thumb impressions had been taken on blank pronote and receipt but the appellant had failed to substantiate the said plea. Thus, impliedly the appellant-defendant had admitted his thumb impressions on the pronote and receipt. There is also no force in the argument raised by learned counsel for the appellant that the plaintiff had failed to examine any of the attesting witnesses of the receipt as the receipt is not required by law compulsorily to be attested by witnesses. In these circumstances, the non-examination of the attesting witnesses does not lead to the inference that the pronote and receipt had not been duly executed by the appellant. Hence, the Courts below had rightly decreed the suit of the plaintiff. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE December 23, 2009 anita