Regular Second Appeal No. 168 of 2008 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 1. Regular Second Appeal No. 168 of 2008 Date of Decision: July 23, 2009 Sat Pal ......... Appellant versus Raj Kumar and others .......... Respondents Present: Shri S.S. Narula, Advocate for the appellant. Shri S.K. Sharma Budhladawale, Advocate for respondent No.1 Shri Jaspal Giri, Advocate, for Shri Baljit Puri, Advocate for respondents No.7 and 8 2. Regular Second Appeal No. 3871 of 2007 Baba Surinder Kumar ......... Appellant versus Raj Kumar and others .......... Respondents Present: Shri S.S. Duhan, Advocate for the appellant. Shri S.K. Sharma Budhladawale, Advocate for respondent No.1 Shri S.S. Narula, Advocate for respondents No. 2 and 11 Shri Jaspal Giri, Advocate, for Shri Baljit Puri, Advocate for respondents No.8 to 10 3. Regular Second Appeal No. 1748 of 2008 Raj Kumar ......... Appellant versus Satpal and others .......... Respondents Regular Second Appeal No. 168 of 2008 [2] Present: Shri S.K. Sharma Budhladawale, Advocate for appellant. Shri S.S. Narula, Advocate for respondents No. 2 and 10 Shri S.S. Duhan, Advocate for respondent No. 9 Shri Jaspal Giri, Advocate, for Shri Baljit Puri, Advocate for respondents No.6 to 8 1.Whether Reporters of local papers may be allowed to see the judgment ? 2. Whether to be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? HEMANT GUPTA, J. This judgment shall dispose of Regular Second Appeal No. 3871 of 2007 filed by defendant No.5; Regular Second Appeal No.168 of 2008 filed by defendant No.1; and Regular Second Appeal No.1748 of 2008 filed by the plaintiff, as all these appeals arise out of common judgment and decree passed by the learned Courts below. Defendants No.1 and 5 are in second appeal aggrieved against the judgment and decree passed by the learned Courts below granting decree for recovery of Rs.7,25,000/- along with interest at the rate of 1.1/2% per month from 15.06.1994 until the realization thereof. The brief facts out of which the present appeals arise are that Mann Singh and Jittu, defendants No.8 and 9, are the owners of agricultural land situated in village Bhatoli, Tehsil Jagadhari, District Yamuna Nagar. On 24.02.1992, defendants No.8 and 9 entered into agreement to sell their land in favour of the plaintiff. Such agreements are Exhibits P2 and P4 Regular Second Appeal No. 168 of 2008 [3] whereas receipt of payment of Earnest Money is Exhibits P-3 and P-5. The plaintiff has paid Rs.4 lacs in pursuance of the agreement to sell Exhibit P-2 which was acknowledged by receipt Exhibit P-3 and sum of Rs.3,25,000/- in pursuance of the agreement Exhibit P-4 evidenced by receipt Exhibit P-5. On the receipts Exhibits P3 and P5, Satpal, defendant No.1, is the witness of payment to Jittu and Mann Singh. Satpal, a property dealer, entered into a settlement with the plaintiff on 15.06.1994, Exhibit P-1, undertaking to pay Rs.7,25.000/- along with interest at the rate of 1.1/2% per month, as the said amount was paid by the plaintiff to defendants No.8 and 9. The said settlement was arrived at in view of the fact that Satpal was instrumental in execution of agreement to sell in favour of the plaintiff and was also beneficiary of gift deeds executed by defendants No. 8 and 9 in favour of defendants No.1 to 4. Defendants No.2 to 4 are the close relatives of defendant No.1. Since the amount was not paid by defendant No.1, the plaintiff filed the present suit for recovery of the aforesaid amount along with interest thereon. The said suit was decreed by the learned trial court against defendants No.1 to 4, the beneficiaries of gift deeds executed by defendants No.8 and 9. It was also ordered that in case the amount is not realized from defendants No. 1 to 4 then the same be realized from defendants No. 5 to 7 and 9. However, in appeal, the decree was modified and the decree passed against defendants No.2, 3 and 4 were set aside. Aggrieved against the modification of the decree against defendants No.2 to 4, the plaintiff has filed Regular Second Appeal No. 1748 of 2008, whereas Regular Second Appeal No. 168 of 2008 and Regular Second Appeal No. 3871 of 2007 have been preferred by defendants No.1 and 5 respectively against the Regular Second Appeal No. 168 of 2008 [4] decree passed by the learned First Appellate Court refusing to set aside the decree passed against them by the learned trial Court. The learned First Appellate Court has examined the entire evidence. It has been found that Satpal has admitted the signatures on document Exhibit P-1 but has alleged that his signatures appears to be transplanted. The learned First Appellate Court found that there is no reason or circumstance from which it can be inferred that the signatures have been transplanted. Independent of Exhibit P-1, learned First Appellate Court has found that numerous other circumstances and documents are sufficient to prove that it was Satpal who is liable to make the payment. It was found that receipts Exhibit P-3 and P-5 are attested by Satpal. They are of the same date when Exhibit P-2 and P-4 were executed in favour of Raj Kumar. The beneficiaries of the gift deed, are close relatives of Satpal. It was also found that power of attorneys were executed by Mann Singh and Jittu in favour of Surinder Kumar on 24.2.1992 the date the agreement was executed by the aforesaid defendant with the plaintiff. Such power of attorney was registered on 25.2.1992. It was found that gift deeds appear to have been managed by Satpal to involve more persons to shift the liability. In view of the said fact, decree of the learned trial Court was maintained with modifications as mentioned above. I have heard learned counsel for the parties and do not find that any substantial question of law arises for consideration in Regular Second Appeal No. 168 of 2008 and Regular Second Appeal No. 1748 of 2008. Learned counsel for defendant No.1-appellant has vehemently argued that the entire basis of the decree against the appellant is Exhibit P-1 dated 15-06-1994 but the said agreement is not proved in as much as the original Regular Second Appeal No. 168 of 2008 [5] has not been produced. In the absence of proof of the original agreement, no decree could be passed against the appellant-defendant No.1. The learned Courts have taken into consideration the statement of the appellant, the surrounding circumstances including the execution of receipt, the power of attorney and the gift deeds to return a finding that, in fact, Satpal is the beneficiary and he has tried to rope in many persons. In view of the said finding of fact, I do not find any illegality or material irregularity in the finding of the learned Courts below in respect of the liability of Satpal to pay the aforesaid amount of Rs.7,25,000/-. It is a finding of fact based upon proper appreciation of evidence and, therefore, does not call for any interference in second appeal. Learned counsel for defendant No.1 argued that the decree has been passed with interest at the rate of 1.1/2% per month though plaintiff has specifically claimed interest at the rate of 1.1/2% per annum on the amount of Rs.7,25,000/- . However, the said argument is again not tenable. It appears that the assertion of 1.1/2 % per annum is only a typographical mistake inasmuch as plaintiff has claimed total sum of Rs.16,05,000/- i.e., Rs.7,25,000/- as principal amount and Rs.8,80,000/- as interest amount. Interest of Rs.8,80,000/- can be due only if interest is claimed at the rate of 1.1/2% per month and not at 1.1/2% per annum. In view of the typographical mistake the future interest at the rate of 1.1/2% per annum cannot be granted against the appellant. Rate of interest at 1.1/2% per month is adequate and is adequate compensation for the delay in payment. Therefore, the rate of interest at 1.1/2 % per month is only the plausible rate which the parties agreed in terms of agreement dated 15.06.1994. Therefore, I do not find any merit in the present appeal filed by defendant No.1. Regular Second Appeal No. 168 of 2008 [6] In the appeal filed by the plaintiff i.e. RSA No. 1748 of 2008, the appellant has claimed decree against defendants No.2 to 4. However, there is no agreement with the aforesaid defendants to pay the amount. The plaintiff has not sought cancellation of the gift deeds. The claim of the plaintiff is based upon writing dated 15-06-1994 allegedly executed by Satpal-defendant No.1. The decree has been passed against aforesaid Satpal. In view of the above, I do not find that any substantial question of law arises for consideration in RSA No. 1748 of 2008. In reference to Regular Second Appeal No. 3871 of 2007 filed by defendant No.5, it is argued that defendant No.5 is neither beneficiary nor in any other way liable for payment of the amount to the plaintiff. He is made liable to pay the amount in the event, the same is not paid by defendant No.1 to 4. Therefore, the following substantial question of law which arises:- “Whether defendant No.5-appellant can be made liable for the amount when there is no allegation of any liability either joint or several against the said defendant” Learned counsel for the appellant in RSA No. 3871 of 2007 has argued that defendant No.5 has been made liable only in the event decretal amount is not realized from defendants No.1 to 4. It could not be pointed out that defendant No.5 is either guarantor of defendant No.1 to 4 or in any way otherwise liable to indemnify defendants No. 1 to 4. In the absence of any such liability, defendant No.5 cannot be made liable for recovery of Rs.7,25,000/- in respect of which decree has been passed against defendants No.1. Thus, the substantial question of law is answered in favour of the appellant-defendant No.5. Regular Second Appeal No. 3871 Regular Second Appeal No. 168 of 2008 [7] of 2007 stands allowed accordingly. Consequently, Regular Second Appeal Nos. 168 and 1748 of 2008 are dismissed whereas Regular Second Appeal No. 3871 of 2007 is allowed. July 23, 2009 ( HEMANT GUPTA ) ks JUDGE