R. S. A. No. 433 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 433 of 2010 (O&M) Date of Decision : February 03, 2010 Bahadur and others .... Appellants Vs. Om Parkash .... Respondent CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Radheshyam Sharma, Advocate for the appellants. * * * L. N. MITTAL, J. (Oral) : C. M. No. 1266-C of 2010 : Deficiency in court fee has already been made good. Delay in making good the same is condoned, as prayed for. Main Appeal : Defendants are in second appeal after having remained unsuccessful in both the courts below. Respondent Om Parkash, as proprietor of M/s Bhagwan Dass Mohit Kumar, Commission Agent, filed suit for recovery of Rs.2,74,767/- against the defendants alleging that defendant no.1 had a running account with the plaintiff, whereas defendants no.2 to 4 are sons of defendant no.1. Defendants used to take loan from the plaintiff and also used to sell their agricultural produce at the shop of the plaintiff. On instructions of defendant no.1, the plaintiff also used to R. S. A. No. 433 of 2010 (O&M) 2 advance money to defendants no.2 to 4. The defendants used to affix their signatures/thumb impressions on the amounts taken by them. The account was current and running account. As on 17.09.2001, a sum of Rs.1,88,779/- was due from the defendants to the plaintiff. After adding interest thereto for the pre-suit period, plaintiff filed suit for recovery of Rs.2,74,767/-. The defendants pleaded that they had cleared the entire account of plaintiff on 10.05.2001 by selling their crop. The plaintiff never gave account statement to the defendants, but gave only rough account prepared on 03.03.2001. The plaintiff wrongly debited Rs.94,620/- in the account of defendants, who had never taken the said amount. The defendants had purchased pesticides, fertilizers and seeds from the plaintiff and the amount thereof has been shown as cash advance. The pesticides sold by the plaintiff to the defendants were spurious and consequently, defendants' crop in 101 kanals land was destroyed. Defendants filed complaint in Consumer Forum, but the complaint was dismissed for want of receipt of purchase of pesticides. Thereupon, Panchayat was convened and it was agreed that the plaintiff would not claim any amount towards price of pesticides and the defendants would not claim any compensation for damage to their crops. It was also pleaded that amount of Rs.30,288/- due from Om Parkash and Rs.11,900/- due from Tek Chand had been wrongly debited in the accounts of defendants. Defendants also made counter-claim for recovery of Rs.1,13,330/- on account of destruction of their crops due to spurious pesticides supplied by the plaintiff. Learned Civil Judge (Junior Division), Fatehabad, vide judgment and decree dated 24.08.2007, partly decreed the suit of the plaintiff for Rs.1,46,651/- with interest thereon @ 8% per annum w.e.f. 01.04.2001 till date of decision by the trial court and future interest @ 6% per annum from the date of decision till actual recovery. Counter-claim of the defendants was dismissed. Defendants preferred first appeal, in which R. S. A. No. 433 of 2010 (O&M) 3 plaintiff also preferred cross-objections. Learned Additional District Judge, Fatehabad, vide judgment and decree dated 13.08.2009, dismissed the appeal preferred by the defendants as well as the cross-objections preferred by the plaintiff. Feeling aggrieved, the defendants have preferred the instant second appeal. I have heard learned counsel for the appellants and perused the case file. Both the courts below, on appreciation of evidence, have arrived at concurrent finding of fact that the amount, for which the suit has been decreed, was due from the defendants to the plaintiff. The said finding is not shown to be perverse or illegal to warrant interference in second appeal. Learned counsel for the appellants vehemently contended that two entries of Rs.30,288/- and Rs.11,900/- have been found to be false by the courts below. However, plaintiff's suit for the said amount of two entries has not been decreed by the courts below. The said entries were debited in the account of the defendants apparently on account of some clerical error and therefore, the plaintiff's claim for the said amount was not accepted even by the courts below. However, it would not lead to the inference that the entire claim of the plaintiff is false. On the other hand, the relevant entries for taking various amounts from the plaintiff were signed/thumb marked by the defendants. The defendants are disowning the amount of pesticides etc. on the plea that spurious pesticides were supplied by the plaintiff. However, the plaintiff's case is that the amount was taken in cash by the defendants. Moreover, complaint filed by the defendants before Consumer Forum, on the ground that the spurious pesticides were supplied by the plaintiff, was dismissed by the Consumer Forum. For this reason as well, the defendants cannot disown the liability for the amount in question. No cogent evidence was either led to prove the counter-claim of the defendants. The counter-claim of the defendants was thus not R. S. A. No. 433 of 2010 (O&M) 4 proved. Moreover, said claim of defendants has already been rejected by Consumer Forum and, therefore, could not be re-agitated in the instant suit by way of counter-claim. There is no perversity or illegality in the judgments of the courts below. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is bereft of any merit and is accordingly dismissed in limine. February 03, 2010 ( L. N. MITTAL ) monika JUDGE