RSA No.1661 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1661 of 2009 Date of Decision:08.07.2010 Manjit Kaur .... appellant Versus M/s Dhillon Traders & anr. .....respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG 1.Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.Arvind Kashyap,Advocate for the appellant Mr.Manpreet Singh, Advocate for the respondents **** RAKESH KUMAR GARG J. This judgment of mine shall dispose of five Regular Second Appeals i.e. RSA No.1661 of 2009, RSA No.1695 of 2009, RSA No.1698 of 2009,RSA No.1699 of 2009 and RSA No.2021 of 2009 as on similar facts, a common substantial question of law said to be arising in all these appeals has been raised. However, for convenience sake, the facts are taken from RSA No.1661 of 2009. As per the pleadings, defendant No.2 is the proprietor of firm defendant No.1. The plaintiff gave a sum of Rs.1,74,000/- to defendant No.2 as 'amanat' on 21.05.2005. Defendant No.2 executed a receipt on the letter pad of defendant No.1 after putting the seal and his own signatures on the receipt and promised to repay the aforesaid amount on demand. It is further case of the plaintiff that she required the amount and approached the defendant but the defendant put off the repayment on one RSA No.1661 of 2009 2 pretext or the other and finally refused to make the payment. The defendant was duty bound to repay the 'amanat' of the plaintiff on demand. Hence the suit. Upon notice, defendants appeared and filed written statement raising various preliminary objections. On merits, execution of receipt dated 21.05.2005 was denied and it was stated that the same was forged and fabricated document. All other averments were denied and dismissal of the suit was prayed. Plaintiff filed replication reiterating the averments made in the plaint. From the pleadings of the parties the following issues were framed: 1. Whether the plaintiff is entitled to the recovery of Rs.1,74,000/- as prayed for ?OPP 2. Whether the plaintiff is entitled to the interest? If so, at what rate?OPP 3. Whether the suit is not maintainable in the present form?OPD 4. Whether the receipt dated 21.05.2005 is a forged and fabricated document?OPD 5. Relief. In order to prove her case, plaintiff herself stepped into the witness box as PW1 and examined one Charan Singh PW2, Gurmit Singh PW3 and placed on the file receipt dated 21.05.2005 as Ex.P-1, copy of agreement Ex.P-2 and copies of receipts Ex.P-3 to P-8. On the other hand, defendant Naib Singh himself stepped into the witness box as DW1 and examined Jaspreet Singh DW2 to rebut the case of the plaintiff. After hearing learned counsel for the parties and considering the evidence on record, the trial Court held that neither the alleged receipt Ex.P-1 was a pronote or promissory note, nor there was any settlement between the parties with regard to the payment of interest RSA No.1661 of 2009 3 and the plaint was silent in this regard and claim of the appellant in this regard was misconceived. In fact, learned counsel for the appellant has not raised any argument either before the Lower Appellate or before this Court against the aforesaid findings. While dismissing the suit it was further held that defendant never executed receipt Ex.P-1. Plaintiff had failed to prove that he ever advanced the amount as alleged. Observations of trial Court are as under: “Now coming to the advancement of sum of Rs.1,74,000/-, as per version of the plaintiff, she advanced the sum of Rs.1,74,000/- on 21.05.2005 and that receipt Ex.P-1 was executed by defendant No.2 under his signatures. The said receipt has been produced on the record as Ex.P-1. First of all the said receipt Ex.P-1 does not stand proved on the record as the so called witness Charan Singh son of Bachan Singh examined as PW2 though has deposed that the plaintiff paid Rs.1,74,000/- to the defendant No.2 on 21.05.2005 in his presence, but the receipt Ex.P-1 does not find any signatures of said Charan Singh son of Bachan Singh as a witness. In addition thereto, said Charan Singh in his cross examination has admitted that he had no dealings transactions with defendant Naib Singh for the last 2 years. Though, this witness has disclosed that earlier, he used to take advance from Naib Singh and used to give him receipt, but this witness failed to divulge any detail of such receipt while deposing that he has not kept those receipts. Even, more this witness further deposed that he took Rs.1,45,000/- from the defendant one time and Rs.1,74,000/- for the second time and that when he took the said money, he signed the account books and that he took RSA No.1661 of 2009 4 the loan on 21.05.2005. This witness has disclosed the same very date of borrowing of sum of Rs.1,74,000/- as has been claimed by the plaintiff to have been advanced by her to the defendant. This witness even is a grandfather of the Muneem of the defendant namely Jasbir Singh who as per version scribed the receipt Ex.P-1. This witness then has further disclosed that he is in speaking terms with his said grandson. Then the best witness plaintiff could have examined was the Muneem Jasbir singh who as per version of the plaintiff scribed the receipt, but the plaintiff instead of examining the said witness opted to examine his grandfather. Even in the opening lines of the cross examination this witness disclosed that he has been giving his land on lease for the last two years. Then, he did not disclose as to why he required the sum of Rs.1,74,000/-that he took from the defendant. Even, receipt Ex.P-1 was not executed in his presence as this witness failed to identify the receipt Ex.P-1 from this file when he was shown five similar receipts lying on the five judicial files. Even, he further disclosed that he had had not seen what was written in the receipt by his grandson and further that Manjit Kaur was not present at the time of execution of the receipt and that she had sent the money through her son. He had further disclosed that he had not counted the bundles of money and then in the very next breath he deposed that the plaintiff took out the money from her bag and handed it over to the defendant. Apparently, when plaintiff Manjit Kaur was not present at the time of execution of the receipt then how could she bring out the money from her bag? Hence, the RSA No.1661 of 2009 5 deposition of this witness is nothing but a bundle of lies. Even plaintiff Manjit Kaur while appearing as PW-1 has disclosed that she had never visited the shop of defendant No.2 and she used to sell her crop, but defendant No.2 never issued any bill or receipt regarding the sale of crop. At the same time, she further disclosed that they used to get the money from the defendant and some time they used to give the money to him. Further she deposed that she never signed the account books of the defendant. She further disclosed that she did not know the amount advanced by her to the defendant. Though, in the next breath she corrected herself while deposing that a sum of Rs.1,74,000/- was handed over to her son who paid the same to the defendant. Neither the money was given by the plaintiff to the defendant, nor the receipt was executed in her presence. So, her claim that she advanced a sum of Rs.1,74,000/- is nothing, but a total falsity. Even the plaintiff further did not disclose the source of Rs.1,74,000/-.” It is relevant to point out that while dismissing the suit, trial Court further held that the alleged receipt Ex.P-1 was not stamped and therefore was inadmissible in evidence. The relevant paragraph of the judgment reads as follows: “For the said reasons, I have no hesitation to hold that the plaintiff has failed to prove that he ever advanced a sum of Rs.1,74,000/- to the defendant and the defendant ever executed receipt Ex.P-1 as even the receipt Ex.P-1 is not stamped and therefore, is inadmissible in evidence in view of the law laid down by the Hon'ble Allahabad High Court in case “Bindesari Parsad and others vs.Ram Tapesha Singh RSA No.1661 of 2009 6 & others” reported as A.I.R. 1933, Allahabad-577. All these issues so are decided against the plaintiff and in favour of the defendants.” Before Lower Appellate Court the plaintiff-appellant raised the following arguments: 1. That the trial Court has failed to appreciate the evidence on record produced by him which has resulted into great injustice. 2. That he had a right to examine a hand writing expert in rebuttal evidence and no such opportunity was given. 3. That the trial Court could not examine the signatures of Naib Singh defendant-respondent on the receipt Ex.P-1, itself. 4. Proper issues were not framed by the trial Court. The appeal was defended by the respondents stating that no fault can be found with the findings on all the issues. The receipt set up by the appellant was a forged and fabricated document and the same does not fall neither within the definition of promissory note nor receipt. Appeal filed by the appellant challenging the judgment and decree of the trial Court was also dismissed by the Lower Appellate Court vide impugned judgment and decree dated 05.12.2008. While dismissing the appeal, the Lower Appellate Court observed as under: “The case set up by the appellant-plaintiff is that she advanced a sum of Rs.1,74,000/- to the respondents- defendants on 21.05.2005 and in lieu of that receipt Ex.P-1 was issued by respondent-defendant No.2. The appellant- plaintiff examined Charan Singh PW2 who has deposed that Rs.1,74,000/- were paid in his presence by the appellant- plaintiff to respondent-defendant No.2. However, a perusal of the receipt Ex.P-1 reveals that the same does not bear RSA No.1661 of 2009 7 the signatures of Charan Singh PW2. Even this witness has admitted in cross-examination that he had no dealings or transactions with respondent Naib Singh. It is claimed by the appellant-plaintiff that receipt Ex.P-1 was scribed by Jasbir Singh, Muneem of respondent-defendant, but for the reasons best known the appellant-plaintiff, said Jasbir Singh was not examined. The appellant-plaintiff even failed to mention in the plaint as to by whom receipt Ex.P-1 is signed. Even as rightly discussed by the learned trial court, the deposition of appellant-plaintiff is not inspiring confidence and the learned trial Court has rightly concluded that advancement of Rs.1,74,000 by the appellant-plaintiff to the defendant is not proved on record. Further the alleged receipt Ex.P-1 does not fall within the definition of promissory note as enshrined in Section 4 and negotiable Instrument as per Section 13 of the Negotiable Instruments Act, 1881. Further it also does not fall within the definition of 'receipt' as given in section 23 of the Indian Stamp Act, 1899 as it is not properly stamped as per schedule 1-A attached to the Indian Stamp Act, 1899 according to which a stamp duty of Rs. 50/- was required to be affixed. Similarly, no fault can be found in the approach adopted by the learned trial court in the comparison of signatures of Naib Singh on receipt Ex. P-1 with those appearing on photo copy of sale deed dated 29.12.05. No document expert was examined by the respondents-defendants in this case and as such the authorities referred to by the learned counsel for the appellant-plaintiff are not applicable to the facts of the present case. On the other hand, the learned trial Court has RSA No.1661 of 2009 8 rightly relied upon the view taken by the Hon'ble Allahabad in AIR 1933, Allahabad, 577, Bindersari Prasad and others Vs. Rama Tapesha Singh and another. Therefore, keeping in view the above discussed facts and circumstances of the case, I do not find any ground to interfere in the findings recorded by the learned trial court on these issues and the same are upheld.” Feeling aggrieved from the aforesaid judgment and decrees of the courts below, the plaintiff has approached this Court by way of this appeal. In the present appeal, the appellant has submitted that following substantial questions of law arise for consideration of this Court: 1. Whether the plaintiff has a right to lead evidence in rebuttal on an issue where onus of proof is on defendant as it was in the present case on issue No.4? 2. Whether the courts below have misread evidence regarding the signatures on the receipt which were admitted to be similar by defendant's witness? 3. Whether the courts below misread the evidence in holding the receipt not genuine, when no cogent evidence of expert was led to prove it as forged? 4. Whether the document Ex.P1, a receipt even if not stamped was admissible in evidence in view of Section 35 of the Indian Stamp Act and the court below acted contrary to law in not accepting it? In support of this appeal, learned counsel for the appellant has vehemently argued that in spite of the fact that onus to prove issue No.4 was upon the defendant-respondent, the trial Court failed to grant an opportunity to the appellant to lead evidence in rebuttal, and, it resulted into miscarriage of justice to the appellant. Learned counsel has submitted RSA No.1661 of 2009 9 that in this case, the respondents closed their evidence on 23.11.2006 and the arguments were heard on 27.11.2006 and the decree was passed on 29.11.2006 and, thus, the appellant was not afforded any opportunity to challenge the aforesaid order of the trial Court dated 23.11.2006 fixing the case for arguments without granting any opportunity to her for leading rebuttal evidence. In support of his contention, learned counsel for the appellant has relied upon judgments of this Court in Ranjit Singh vs.Mehfil Restaurant CXLIX-(2008-1)PLR 674 and Gurbaksh Singh vs.Jagat Singh & others.1991 Civil Court Cases 47(P & H). The argument raised by the learned counsel for the appellant is without any substance. He has failed to show any prejudice caused to him on this account. In fact, respondents have not lead any document expert in support of their case on this issue. In view of the fact that appellant has failed to prove the execution of Ex.P-1 and alleged receipt issued by the respondents, nothing remained to be proved by the respondents and they rightly did not produce any evidence. The aforesaid argument could have been available to the appellant if he had discharged his initial burden by proving the advancement of loan to the defendant- respondents under issues No.1 and 2. In these circumstances, the right to produce rebuttal evidence could not have been available to the appellant as the respondents had not lead any evidence in the affirmative on issue No.4 and had merely denied the execution in their testimony. The next contention of the learned counsel for the appellant is that the courts below have erred at law while holding the receipt Ex.P1, inadmissible into evidence. According to him no objection was taken by the respondents regarding its admissibility when the same was tendered into evidence and moreover, as per the provisions of Section 35 of the RSA No.1661 of 2009 10 Indian Stamp Act, 1899 such an unstamped receipt could be admitted in evidence on payment of a penalty by the person tendering it and, thus, the advancement of loan stood proved. The argument of the appellant has no force. May be, while dismissing the suit, the trial Court observed that the receipt was unstamped and was inadmissible in evidence. However, this was not the only reason for discarding the receipt Ex.P-1 but a perusal of the impugned judgments would show that execution of the aforesaid receipt Ex.P-1 was not proved. As per the pleadings, the aforesaid receipt was executed by respondent No.2 on the pad of respondent No.1 under his own signatures. However, as per the evidence led by the appellant, the receipt was written by the Muneem of the respondents and was signed by respondent No.2. The appellants have not produced the aforesaid Muneem who wrote the receipt Ex.P-1. Not only this, Jaspreet Singh who executed the aforesaid receipt Ex.P-1 was produced by the defendants-respondents as DW2 and he denied the execution of the receipt by him and Naib Singh, respondent No.2. Thus, even if admissibility of the document Ex.P-1 cannot be questioned, the mode of proof of this document was not dispensed with. As aforesaid the appellant has failed to prove the execution of Ex.P-1, the receipt which was the very basis of the her suit. Faced with this situation, learned counsel for the appellant has lastly contended that there was enough evidence on record to hold that appellant had advanced the amount to respondents and findings to the contrary recorded by the Courts below are perverse and are liable to be set aside. In support of this argument, learned counsel for the appellant has stated that signatures of respondent No.2 upon the receipt in question were similar to the signatures on the sale deed and affidavit produced on record and which was admitted by Jaspreet Singh, DW2. Learned counsel has referred to the cross-examination of the aforesaid witness which reads as RSA No.1661 of 2009 11 follows: “Attention of the witness is drawn towards Photostat copy of sale deed dated 29.12.05 on the file, where witness admits that in English Naib Singh is written in the receipt Ex.P1 also bears the word Naib Singh, witness was asked to compare the writing of both the documents, witness stated that the writings are dissimilar. The witness was asked to point out dissimilarity in writing on the sale deed 29.12.05 and Ex.P1, he think for about 2/3 minutes, but unable to point out any dissimilarity in both the writings.” Even the aforesaid argument raised by the learned counsel for the appellant is without any merit. While answering the next question, the aforesaid witness despite admitting the signatures on Ex.P-1 and on the sale deed dated 29.12.2005 has stated that signatures of Naib Singh are there but he may be someone else. Thus, simply on the basis of the aforesaid cross examination of DW2, it cannot be argued that findings of the Courts below are perverse especially in view of the fact that the appellant has failed to prove the contents of receipt Ex.P-1. In this view of the matter, I find no merit in these appeals. No substantial question of law arises. Dismissed. (RAKESH KUMAR GARG) JUDGE 08.07.2010 neenu