R.S.A. No. 943 of 2010 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH R.S.A. No. 943 of 2010 (O&M) Date of decision : 26.8.2010 ... Mela Singh ................Appellant vs. Kirpal Singh .................Respondent Coram: Hon'ble Mr. Justice K.C. Puri Present: Sh. R.S. Dhaliwal, Advocate for the appellant ... K.C. Puri, J. CM No. 2690 C of 2010 There is a delay of 778 days in re-filing the present appeal. The same stands condoned on the grounds mentioned in the application. CM No. 2692 C of 2010 There is a delay of 35 days in filing the present appeal. The same stands condoned on the grounds mentioned in the application. CM No. 2691 C of 2010 The is an application for making good the deficiency in Court fee. The application stands allowed on the grounds mentioned in the application. ` RSA No. 943 of 2010 This is a regular second appeal directed by the defendant- appellant against the judgment dated 17.7.2007 passed by Sh. Bhupinder Singh, Additional District Judge, Patiala, vide which the R.S.A. No. 943 of 2010 -2- appeal preferred by the defendant-appellant against the judgment dated 9.1.2006 passed by Sh. Karnail Singh, PCS, Civil Judge (Senior Division), Samana, was dismissed. Plaintiff-Kirpal Singh filed a suit for recovery of Rs.3,42,000/- alleging that on 15.5.2002, defendant borrowed a sum of Rs.3,00,000/- as loan in cash from the plaintiff and in lieu thereof, he executed a pronote and receipt in favour of the plaintiff. The pronote and receipt was got scribed from Naresh Kumar s/o Madan Lal and witnessed by said deed writer as scriber as well as Gian Chand. The contents of the pronote and receipt were read over and explained to the defendant and after receiving the payment, defendant also put his thumb impression on the pronote as well as receipt. The defendant also agreed and undertook to pay interest on the said borrowed amount @ 2% per month and further agreed to pay loan amount alongwith interest on demand of plaintiff. After borrowing the amount, the defendant failed to pay the said amount either towards principal or interest thereon, despite repeated demands and requests made by the plaintiff to the defendant. Now, a sum of Rs.3,00,000/- as principal amount and Rs.42,000/- as interest from 15.5.2002 to 20.12.2002 i.e. total Rs.3,42,000/- is due to the plaintiff from the defendant. The plaintiff further is entitled to future interest on the same rate i.e. 2% per month. Despite repeated requests and demand, the defendant has failed to repay the said loan amount to the plaintiff. Hence the suit. Upon notice, defendant filed the written statement denying the story as contained in the plaint by the plaintiff. He categorically R.S.A. No. 943 of 2010 -3- denied the borrowing of Rs.3,00,000/- from the plaintiff and also denied that any pronote and receipt was ever executed by him in favour of the plaintiff. Rather it was alleged that the pronote and receipt was got scribed by the plaintiff in connivance with Deed Writer and witness Gian Chand. It was further alleged that defendant is having dispute with him being Commission Agent of Patran and said Commission Agent must have prepared the alleged pronote and receipt in the name of plaintiff being in connivance with him as the Commission Agent who belongs to the family of Suresh Kumar son of Partap Ram of village of defendant and used to obtain thumb impression on blank paper during the course of dealing of the defendant with the Commission Agent on number of blank papers including printed forms of pronote and receipt. The suit is totally false and frivolous and the alleged pronote and receipt are also false and frivolous. The suit is without merits and prayed for dismissal of the same. Replication was filed controverting the averments made in the written statement and reiterating the pleas taken in the plaint. From the pleadings of the parties, following issues were framed:- 1. Whether the defendant had borrowed an amount of Rs.3,00,000/- and had executed pronote and receipt in favour of the plaintiff on 15.5.2002? OPP. 2. Whether the plaintiff is entitled to the recovery of Rs.3,42,000/- alongwith interest as claimed? OPP. 3. Relief. R.S.A. No. 943 of 2010 -4- In order to prove his case, Kirpal Singh – plaintiff himself appeared as PW-1 and also examined PW-2 Naresh Kumar, scriber of pronote and receipt, PW-3 Gian Chand, marginal witness, PW-4 Navdeep Gupta, handwriting and finger print expert and closed the evidence after tendering certain documents. In rebuttal, defendant Mela Singh appeared as DW-1 and also examined DW-2 Tehal Singh and closed the evidence. Learned trial Court after appraisal of the evidence on the file, returned the finding on both the issues No. 1 and 2 in favour of the plaintiff and against the defendant. Consequently, suit of the plaintiff for recovery was decreed, vide judgment dated 9.1.2006 passed by Sh. Karnail Singh, PCS, Civil Judge (Senior Division), Samana. Feeling dissatisfied with the above said judgment, the defendant-appellant filed the Ist appeal and the same was dismissed vide judgment dated 17.7.2007 passed by Sh. Bhupinder Singh, Additional District Judge, Patiala, Still feeling dissatisfied with the judgments dated 17.7.2007 and 9.1.2006, referred to above, the defendant-appellant has preferred the present regular second appeal. The defendant-appellant in paragraph No. 10 of the grounds of appeal has mentioned that following substantial questions of law are involved in the present appeal:- i) Whether in the absence of proper issues, the findings of the Ld. Courts below can be upheld? ii)Whether the plaintiff was in a capacity to advance a huge R.S.A. No. 943 of 2010 -5- amount? iii)Whether a huge amount can be advanced in the absence of a security i.e. Landed Property etc.? iv)Whether sound relationship between the parties are required while advancing a loan by way of pronote? v) Whether the learned Trial Courts are liable to consider seriously with regard to the money transactions in the growing economy of the country? Learned counsel for the appellant has submitted that plaintiff has failed to prove the execution of pronote and receipt and passing of the consideration. The Ist Appellate Court has misread the evidence on the file. The thumb impression on the receipt was found to be that of defendant, whereas, the other thumb impression on the pronote was found to be blurred by the expert. So, the Ist Appellate Court has misread the evidence and both the Courts below have misinterpreted the evidence. I have carefully considered the submissions made by counsel for the appellant, but do not find any force in that submission. It is not only the report of the expert but the other evidence of the marginal witnesses, which have weighed in the mind of both the Courts below in arriving at the conclusion that plaintiff has been able to prove the execution of pronote and receipt and passing of the consideration through the said pronote and receipt. There is nothing on the file that both the Courts below have misread and misinterpreted the evidence on the file. No doubt, the Appellate Court has observed that thumb impression on the receipt tallied with the R.S.A. No. 943 of 2010 -6- thumb impression of the defendant, but that itself does not disprove the execution of the pronote and receipt. Both the Courts below have returned a finding of fact that plaintiff has been able to prove the execution of pronote and receipt and passing of the consideration. That being a finding of fact, does not call for any interference. So, I have no hesitation in holding that no substantial question of law has arisen in the present appeal. Consequently, the appeal is without any merit and the same stands dismissed. All the miscellaneous applications also stand disposed of. ( K.C. Puri ) 26.8.2010 Judge chugh