R.S.A.No.4222 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No.4222 of 2008 Date of Decision : October 07, 2009 Sahib Ram ...Appellant Versus Ajay Singh ...Respondent CORAM:HON'BLE MR. JUSTICE HEMANT GUPTA 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr. Mukul Aggarwal, Advocate, for the appellant. Mr. A.K.Chopra, Sr. Advocate, with Mr. Harminder Singh, Advocate, for the respondent. HEMANT GUPTA, J. (ORAL) The defendant is in second appeal aggrieved against the judgment and decree passed by the Courts below, whereby suit of the plaintiff-respondent for the recovery of Rs.5,55,316/- alongwith interest at the rate of 12% per annum from the date of filing of the suit till the date of decree and future interest at the rate of 6% per annum after passing of decree till actual realization, was granted. Such decree was affirmed in appeal as well except modifying the decree to the extent that the plaintiff was found entitled to recover interest at the rate of 12% per annum to be calculated from the dates, the cheques Exs.P-3 to P-6 were issued. The plaintiff-respondent filed the suit for recovery of the R.S.A.No.4222 of 2008 2 aforesaid amount, as the defendant approached the plaintiff to sell his crop and agreed to pay interest at the rate of 2% per month on the borrowed amount. The defendant obtained Rs.3,45,000/- from the plaintiff through 4 different cheques i.e. Rs.1 lac each vide cheques dated 17.11.1998, 18.11.1998 & 9.6.2000 and a sum of Rs.45,000/- vide cheque dated 23.11.1998. The defendant issued a cheque of Rs.4,92,666/- dated 13.2.2001 to return the amount received, but the said cheque on presentation was dishonoured for the reason of insufficient funds. Thus, the plaintiff filed the aforesaid suit for recovery of the amount, which has been decreed as mentioned above. The stand of the defendant was that the suit is not maintainable in the present form. It is beyond the period of limitation and that the plaintiff is a firm, which is not registered. The defendant denied his liability to pay anything to the plaintiff and also denied that there was agreement to pay interest at the rate of 2% per month. Before this Court, learned counsel for the appellant has raised two arguments. Firstly, that the suit is beyond the period of limitation as the same has been filed on 19.11.2001. Therefore, such suit has been presented beyond 3 years from the date, the cause of action initially arose to the plaintiff. It is also contended that one cheque dated 8.6.2000 Ex.P- 6 is issued by Ashok Kumar brother of Ajay Singh, proprietor of the plaintiff-firm Ashok Kumar is not the partner of the firm. Therefore, the plaintiff cannot recover the amount of the said cheque, which is signed by Ashok Kumar, who is not the plaintiff. On behalf of the respondent, it is contended that the suit was, in fact, presented on 12.11.2001 and, thus, the suit was presented within the R.S.A.No.4222 of 2008 3 period of limitation. It is pointed out that, in fact, the Court fee stamps for the purpose of suit were purchased on 12.11.2001 and the same are acknowledged to be received by the Court on 12.11.2001. The list of documents and power of attorney are all signed on 12.11.2001. It is only the suit was registered by the learned trial Court on 19.11.2001. Therefore, on the basis of order passed on 19.11.2001 , "that suit has been presented today" is not sufficient to return a finding that the suit has in fact been filed on the aforesaid date. It is also contended that in any case, the suit in respect of one cheque can be said to be beyond the period of limitation, whereas the suit in respect of three cheques would be within the period of limitation. In respect of issuance of cheque by Ashok Kumar, it is contended that Ajay Singh as well as Ashok Kumar are the authorized signatories on behalf of the firm M/s Chanan Mal Amit Kumar, commission Agents, Fazilka, of which Ajay Singh was the sole proprietor. The said cheques have been issued from the accounts of the firm of which the plaintiff is the sole proprietor, therefore, it is the plaintiff, who has advanced the amount to the defendant and is entitled to recovery the same from the defendant. To examine the controversy of date of presentation, the original record has been requisitioned. The stamp for presentation of the plaint records "12.11.2001" as the date of receipt of plaint. The date 12.11.2001 and the name of the lawyer, who has presented the plaint is in the same ink. The entrustment of the case to the Court and the date on which the parties are directed to appear are in the hand of the Presiding Officer. The date on which the plaintiff is directed to appear is 19.11.2001. On the basis of such date, the interim order has been passed R.S.A.No.4222 of 2008 4 by the Presiding Officer on 19.11.2001, when the suit was ordered to be registered after the Ahlmad has given his report in respect of Court fee affixed. Though, the stamp papers have been cancelled on 19.11.2001 and the date of filing endorsed as 19.11.2001, but in fact the suit is proved to be filed on 12.11.2001. In fact, the plaintiff while appearing as PW-3, deposed on oath, that the suit was presented on 12.11.2001. There is no cross-examination to the said effect. Still further, the learned trial Court has recorded a finding on issue No.2 that the suit has been filed by the plaintiff on 12.11.2001. The defendant has not disputed the date of filing of suit in lengthy grounds of appeal except to state that issue No.2 has been decided wrongly. Even before the learned first Appellate Court, no argument has been raised that the suit is barred by limitation as the plaint has been presented on 19.11.2001. It appears that in the decree prepared by the learned first Appellate Court, the date of presentation of plaint in the first Court was recorded as 19.11.2001, which gave rise to the argument that the suit was barred by limitation having presented on 19.11.2001. In fact, the date mentioned in the decree prepared by the learned first Appellate Court is incorrect, in view of the record, which shows that the plaint presented on 12.11.2001. Thus, I do not find any merit in the argument raised that the suit has been filed beyond the period of limitation. The argument that Ashok Kumar was not the partner of the firm of which the plaintiff is sole proprietor and not competent to issue cheque is again not tenable. Cheque Ex.P-6 shows that the same is signed by Ashok Kumar for and on behalf of M/s Chanan Mal Amit Kumar. There R.S.A.No.4222 of 2008 5 is no objection raised by the appellant in his written statement that such cheque was not received from the firm of which the plaintiff is the sole proprietor. No such argument has been raised before the Courts below as well. Therefore, the appellant cannot be permitted to raise an argument in respect of such cheque in the second appeal for the first time. It may be noticed that the defendant has issued cheque for Rs.4,92,666/-, which is inclusive of the said cheque of Rs.1 lac and the interest on all the cheques. In view of the above, I do not find any patent illegality or irregularity in the judgment and decree passed by the Courts below, which may give rise to any substantial question of law for consideration of this Court in second appeal. Dismissed. October 07, 2009 (HEMANT GUPTA) Vimal JUDGE