R. S. A. No. 1814 of 2011 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 1814 of 2011 (O&M) Date of Decision : April 26, 2011 Bhola Singh .... Appellant Vs. Darshan Kumar .... Respondent CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Harchand Singh Batth, Advocate for the appellant. * * * L. N. MITTAL, J. (Oral) : C. M. No. 5101-C of 2011 : Allowed as prayed for. Main Appeal : Respondent-plaintiff Darshan Kumar filed suit against defendant-appellant for recovery of Rs.1,51,420/- alleging that the defendant, on 25.12.2006, borrowed Rs.1,13,000/- from the plaintiff and agreed to repay the same with interest @ 2% per month and executed pronote and receipt for the same, but the defendant failed to pay the principal and interest amount. Accordingly, plaintiff claimed Rs.1,13,000/- R. S. A. No. 1814 of 2011 (O&M) 2 as principal amount and Rs.38,420/- as interest till filing of the suit. The suit was filed under Order XXXVII of the Code of Civil Procedure. Leave to defend the suit was granted to the defendant. The defendant broadly denied the plaint allegations. The defendant alleged that he is a farmer, whereas the plaintiff is a Commission Agent. The defendant used to sell his agricultural produce at the shop of the plaintiff and during that period, the plaintiff obtained thumb impressions of the defendant on many printed and plain papers on the pretext that the same were required to be produced before Sales Tax Officer. The defendant denied having borrowed any amount from the plaintiff or having executed the impugned pronote and receipt. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Talwandi Sabo, vide judgment and decree dated 04.09.2010, decreed the plaintiff's suit for recovery of Rs.1,13,000/- and interest thereon @ 12% per annum w.e.f. 25.12.2006 (the date of pronote and receipt) till filing of the suit and future interest @ 6% per annum from the date of filing of suit till recovery. First appeal preferred by the defendant has been dismissed by learned District Judge, Bathinda, vide judgment and decree dated 07.03.2011. Feeling aggrieved, the defendant has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. The plaintiff himself stepped into the witness-box as PW-2 and R. S. A. No. 1814 of 2011 (O&M) 3 examined Vineet Kumar (PW-1) – attesting witness of the pronote-cum- receipt in question. Both of them broadly stated according to the plaintiff's version. On the other hand, defendant stepped into the witness-box as DW- 1 and broadly stated according to his version. The aforesaid evidence led by the plaintiff has been found to be sufficient by the courts below. Defendant in his written statement has impliedly admitted his thumb impressions on the impugned pronote-cum- receipt. Plaintiff's version is supported by testimony of Vineet Kumar (PW- 1). Defendant has not examined any other witness in support of his version. Defendant's version that he affixed his thumb impressions on printed and plain papers at the instance of plaintiff on the pretext that the same were required for the purpose of sales tax, is inherently and intrinsically unreliable and untenable. The defendant, without borrowing any amount, would not have affixed his thumb impressions on printed and plain papers. Concurrent finding recorded by the courts below in favour of the plaintiff is justified by the pleadings and evidence on record and is supported by cogent reasons. The said finding does not warrant interference in exercise of second appellate jurisdiction as it is not shown to be illegal or perverse nor it is based on misreading or misappreciation of evidence. Learned counsel for the appellant contended that plaintiff is a money-lender, but has no money-lending license and therefore, suit by him is not maintainable. Reference in this regard has been made to pronotes- R. S. A. No. 1814 of 2011 (O&M) 4 cum-receipts (Annexures A-2 to A-7). The contention cannot be accepted. Pronotes-cum-receipts (Annexures A-2 to A-7) are for the period from 14.05.2002 till 13.08.2003, whereas the impugned pronote-cum-receipt is dated 25.12.2006. Thus, the last pronote-cum-receipt relied on by the defendant to prove that plaintiff is money lender was executed more than three years prior to the impugned pronote-cum-receipt, vide which the defendant borrowed the amount in question. During the interregnum of more than three years, no transaction of money lending by plaintiff to anybody has been brought on record. Consequently, the plaintiff cannot be said to be money lender. In addition to the aforesaid, admittedly the plaintiff is Commission Agent. During the course of his business as Commission Agent, the plaintiff has to advance amounts to agriculturists/farmers, who are his customers. The said advancement of amounts to farmers is in the course of plaintiff's business as Commission Agent and cannot be said to be part of his business of money lending. On the basis of advancing amounts to farmers, the plaintiff cannot be said to be running business of money lending. Learned counsel for the appellant also contended that plaintiff- respondent has not proved his resources to advance the amount of Rs.1,13,000/- to the defendant-appellant. The contention cannot be accepted. Admittedly the plaintiff runs business as Commission Agent. R. S. A. No. 1814 of 2011 (O&M) 5 Consequently, it cannot be said that he did not have amount of Rs.1,13,000/- for advancing it to the defendant. The said amount cannot be said to be a big amount these days. Moreover, this contention is contradictory to the contention of counsel for the defendant-appellant that plaintiff is a money lender. For the reasons aforesaid, I do not find any merit in the instant 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. April 26, 2011 ( L. N. MITTAL ) monika JUDGE