Regular Second Appeal No. 483 of 2011 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 483 of 2011 Date of decision : February 28, 2011 Darshan Singh ....Appellant versus Darshan Singh ....Respondent Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. H.R. Bhardwaj, Advocate, for the appellant L.N. Mittal, J. (Oral) Defendant Darshan Singh having failed in both the courts below has filed the instant second appeal. Respondent-plaintiff also named as Darshan Singh filed suit against defendant-appellant for recovery of ` 86,000/- alleging that the defendant on 27.1.2004 borrowed ` 50,000/- from the plaintiff and agreed to repay the same with interest at the rate of 2% per month and executed pronote and receipt for the same. However, the plaintiff did not pay principal amount or interest. Accordingly, the plaintiff claimed ` 50,000/- as principal amount and ` 36,000/- as interest at the agreed rate and filed Regular Second Appeal No. 483 of 2011 -2- suit for recovery of ` 86,000/-. The defendant admitted having taken amount of ` 50,000/- from the plaintiff and having executed pronote and receipt. Defendant, however, alleged that on 12.12.2005, he took loan of ` 1,50,000/- from the bank and out of it paid principal amount of ` 50,000/- to the plaintiff through marginal witness Kulwant Singh in the presence of Gurnam Singh Ex-sarpanch. The plaintiff while accepting the principal amount gave up his claim of interest amount. However, plaintiff did not return pronote and receipt. The defendant reported the matter to the Panchayat where plaintiff admitted having received ` 50,000/- from the defendant but refused to issue receipt. Other plain allegations were broadly controverted. Various other pleas were also raised. Learned Civil Judge (Junior Division), Bathinda vide judgment and decree dated 5.2.2010 decreed the plaintiff's suit for recovery of principal amount of ` 50,000/- with interest @ 9% per annum from the date of execution of pronote till date of decree of the trial court and future interest @ 6% per annum from the date of decree till recovery. First appeal preferred by the defendant has been dismissed by learned District Judge, Bathinda vide judgment and decree dated 5.1.2011. Feeling aggrieved, the defendant has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file including the files of the courts below. Learned counsel for the appellant contended that the suit is Regular Second Appeal No. 483 of 2011 -3- time barred as it is based on pronote and receipt dated 27.1.2004 but has not been instituted within limitation period of three years. It was pointed out that first zimini order of the trial court is dated 29.1.2007. Attention of the Court was also drawn to paragraph 10 of the plaint wherein it is mentioned that treasury being closed on 27.1.2007 on account of Saturday, requisite court fee stamp papers could not be procured and therefore, the suit was being filed by affixing court fees of ` 1.25/- but court fee stamp papers filed in the trial court on 12.2.2007 reveal that the same had been procured on 27.1.2007 and thus, the suit is time barred. I have carefully considered the aforesaid contentions but the same are completely misconceived and meritless. Perusal of the trial court file reveals that the plaint was presented on 27.1.2007 and on the same day, learned Civil Judge (Senior Division), Bathinda vide his order of even date assigned the suit to himself and posted the case for 29.1.2007. Thereafter on 29.1.2007,, the case was adjourned to 12.2.2007 for making up the deficiency of court fee. On 12.2.2007, deficiency of court fee was made good and thereupon suit was registered and this is the reason that in the judgment of the trial court date of institution of the suit has been mentioned to be 12.2.2007 although in fact the plaint was presented on 27.1.2007. The suit instituted on 27.1.2007 was within limitation. Even if it be assumed for the sake of arguments that the limitation period expired on 26.1.2007 even then the suit instituted on 27.1.2007 was within limitation as it was holiday on 26.1.2007 on account of Republic day. Regular Second Appeal No. 483 of 2011 -4- As regards court fee stamp papers, perusal of the said stamp papers reveals that the same were purchased from a stamp-vendor. It appears that initially stamp papers were thought to be procured from the treasury but being Saturday treasury was closed and therefore, the plaint was instituted with nominal court fee. However, after instituting the plaint, it appears that the requisite court fees stamp papers became available from the stamp vendor. Be that as it may, if the plaint is instituted with deficient court fee, court is supposed to give time to the plaintiff to make up deficiency in the court fee as required by Order 7 Rule 11 of the Code of Civil Procedure and only if within the requisite period the plaintiff fails to supply the requisite stamp papers, the court is supposed to reject the plaint. In the instant case, the plaintiff supplied the requisite stamp papers for court fees within the period stipulated by the trial court and therefore, there was no occasion for rejecting the plaint and the suit is deemed to have been instituted on 27.1.2007, the date when the plaint was actually presented in the trial court, notwithstanding that requisite court fee stamp papers were supplied later on 12.2.2007. Consequently, it cannot be said that the suit was not instituted within limitation period. On merits, the defendant-appellant has no case. The defendant admitted in the written statement having borrowed ` 50,000/- from the plaintiff and having executed the pronote and receipt in question. Consequently, onus was on the defendant-appellant to prove the repayment of principal amount of ` 50,000/- and to prove that the plaintiff had given Regular Second Appeal No. 483 of 2011 -5- up the interest amount, as pleaded by the defendant. However, the defendant has miserably failed to substantiate his aforesaid version. The defendant himself has not appeared in the witness box and therefore, adverse inference arises against the defendant. Defendant's son Kulwant Singh has appeared as DW1. However, his sole, bald and oral statement regarding alleged payment of ` 50,000/- to the plaintiff is not sufficient to establish this fact. In this context it is highly significant to notice that the alleged payment was made in the presence of one Gurnam Singh Ex- sarpanch but the defendant has not even examined Gurnam Singh as witness and for this added reason also adverse inference arises against the defendant. In addition to it, the defendant's version regarding alleged repayment is intrinsically and inherently unreliable altogether. The defendant had executed pronote and receipt while borrowing the amount. However, he allegedly repaid the principal amount without any receipt or other writing and even without taking back pronote and receipt. This version sounds completely improbable on the face of it. The defendant would not have repaid the amount at least without taking back the pronote and receipt which had been executed by him or without getting any receipt for the repayment of the amount. There is also no reason why the amount allegedly repaid after 23 months would be accepted by the plaintiff without interest. The defendant has examined some witnesses to depict that in Panchayat, the plaintiff admitted having received back the principal amount from the defendant. However, the alleged writing executed by the Regular Second Appeal No. 483 of 2011 -6- Panchayat was not signed or thumb marked by the plaintiff and consequently on the basis of this evidence repayment of the principal amount by the defendant to plaintiff is not proved at all. The defendant also alleged that he had raised loan of ` 1,50,000/- from Bank of Punjab on 12.12.2005 and repaid the principal amount of ` 50,000/- out of the said loan amount to the plaintiff. However, bank account statement Ex. D1 produced by the defendant does not substantiate this version of the defendant. No such withdrawal of any amount from the bank is depicted in the said account statement. In fact the said account statement does not even pertain to the relevant period of December, 2005 and rather pertains to the period of January, 2008 to September, 2008. During that period no amount was withdrawn from the bank. On the contrary interest amount was debited to the account of the defendant. Defendant has intentionally withheld the statement of his bank account for the relevant period of December, 2005. The defendant has also not examined any official from the bank to depict that the defendant had withdrawn amount of ` 50,000/- on 12.12.2005. For this reason also, adverse inference arises against the defendant. From the aforesaid discussion, it is manifest that there is no merit in the instant second appeal. Concurrent finding recorded by the courts below against the defendant-appellant and in favour of plaintiff- respondent is fully justified by the evidence on record and is supported by cogent reasons. The defendant has miserably failed to substantiate his Regular Second Appeal No. 483 of 2011 -7- version. Finding recorded by the courts below does not suffer from any perversity or illegality nor it is based on misreading or misappreication of evidence so as to call for interference in the second appeal. No question of law much less substantial question of law arises for determination in the instant second appeal. Accordingly, the appeal is dismissed in limine. ( L.N. Mittal ) February 28, 2011 Judge 'dalbir'