RSA No.5155 of 2010 (O & M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.5155 of 2010 (O & M) Date of Decision: 17.01.2011. Moda Singh alias Modha Singh .....Appellant Versus Karan Kumar Singal ……Respondent Coram:- HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. J. S. Brar, Advocate for the appellant. L. N. MITTAL, J (ORAL) CM No.15185-C of 2010 This is application for condonation of delay of 429 days in refiling the appeal. Heard. File perused. Condonation of long delay of more than 14 months is sought on the ground pleaded in paragraph 2 of the application which is reproduced hereunder:- “That appellant being a poor agriculturist due to water logging could not arrange amount of Court fee. Now applicant has arranged amount of Rs.14,475/- to affix it as Court fee. Due to this delay of 429 days in re- filing the appeal has been caused which is not intentional and the applicant has not gained anything by this delay.” RSA No.5155 of 2010 (O & M) -2- Bare perusal of the aforesaid averment reveals that the same is not sufficient to condone the long delay of 14 months in refiling the appeal. The appellant could not have taken more than 14 months in arranging the amount of Court fee. If such long delay is condoned on such vague, general and specious ground, the very purpose of prescribing limitation period would be frustrated. The application is devoid of any merit . No ground much less sufficient ground for condoning the long delay of 429 days in refiling the appeal is made out. The application is, therefore, dismissed. CM No.15186-C of 2010 Since deficiency in Court fee has been made good, the application is allowed, subject to all just exceptions. Main Appeal. Since application for condonation of delay in refiling the appeal has been dismissed, the appeal is liable to be dismissed on this ground. However,even on merits, the appellant cannot succeed. Defendant-Moda Singh alias Modha Singh, having failed in both the Courts below, is in second appeal. Respondent-plaintiff-Karan Kumar Singal filed suit against the defendant-appellant for recovery of Rs.4,77,000/- alleging that the plaintiff is sole proprietor of M/s Karan Kumar Singal and Company carrying on business as commission agent. On 23.04.2004, defendant borrowed Rs.4,50,000/- from the plaintiff and agreed to repay the same with interest at the rate of 2% per month. Defendant executed necessary pronote-cum-receipt for the same. However, the defendant has not paid any amount either towards RSA No.5155 of 2010 (O & M) -3- principal or towards interest. Accordingly, the plaintiff sought recovery of Rs.4,77,000/- which includes Rs.4,50,000/- as principal amount and Rs.27,000/- as interest till filing of the suit. The defendant broadly denied the plaint averments and inter alia pleaded that impugned pronote and receipt are forged and fabricated. The defendant had received some additional compensation amount of his acquired land, which he deposited with the plaintiff along with his brother and father. The defendant had been selling his produce through the plaintiff. Defendant sold Narma Cotton crop at the shop of plaintiff on 17.10.2003 and 04.12.2003, but the plaintiff did not pay the price thereof to the defendant. Accordingly defendant convened panchayat which also impressed on the plaintiff to pay the amount of the crop to the defendant. However, the plaintiff did not pay the same and took ill of it. On account of it, the plaintiff has filed the instant suit on the basis of forged and fictitious document. When the defendant used to sell his crop through the plaintiff, the plaintiff used to obtain signatures of defendant on printed and plain papers on the pretext of submitting the same in Income Tax Department and Market Committee. The same has been converted into disputed pronote and receipt. The defendant never borrowed any amount from the plaintiff. Learned Additional Civil Judge (Senior Division), Gidderbaha vide judgment and decree dated 28.05.2008 decreed the plaintiff’s suit for recovery of principal amount of Rs.4,50,000/- with interest thereon at the rate of 12% per annum since the date of advancement till date of decree of the trial Court and future interest RSA No.5155 of 2010 (O & M) -4- at the rate of 6% per annum till recovery. First appeal preferred by the defendant has been dismissed by learned Additional District Judge, Muktsar vide judgement and decree dated 08.06.2009 except modification in rate of interest from 12% per annum to 9% per annum, maintaining the future rate of interest at 6% per annum. Feeling aggrieved, defendant has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Learned counsel for the appellant vehemently contended that the defendant had not taken any loan from the plaintiff and the suit is based on forged and fictitious pronote-cum-receipt. The contention cannot be accepted. The plaintiff has examined attesting witness of pronote-cum-receipt Gurdeep Singh PW-2, besides himself appearing in witness-box as PW-1. Both of them stated according to plaintiff’s version. The plaintiff has also examined finger print expert Navdeep Gupta PW-3, who has deposed that disputed thumb impressions of defendant on pronote-cum-receipt tally with his standard/admitted thumb impressions. On the other hand, defendant himself appeared as DW-3 and examined Major Singh DW-4. Both of them stated according to defendant’s version. The defendant also examined Clerk from the Municipal Committee and also Civil Ahlmad and also examined the plaintiff himself as DW-2. Thumb impressions of the defendant on the pronote-cum- receipt stand fully proved by the plaintiff’s evidence including statements of plaintiff himself and one attesting witness and also RSA No.5155 of 2010 (O & M) -5- statement of finger print expert. Even the defendant has impliedly admitted his thumb impressions on the pronote-cum-receipt. Plaintiff’s evidence also proved due execution of the impugned pronote-cum-receipt by the defendant and advancement of loan amount of Rs.4,50,000/- by the plaintiff to the defendant. Defendant could not lead any evidence regarding sale of Narma Cotton Crop by him on 17.10.2003, although defendant has led evidence regarding sale of crop on 04.12.2003. However, he received amount thereof on the same date. Moreover, defendant has not filed suit for recovery of his alleged outstanding amount nor made any counter- claim for the same in the instant suit. It is also worth mentioning that Gurdeep Singh PW-2 examined by the plaintiff is Lambardar of Village Gurusar which is also the village of the defendant himself. The defendant admitted that he has no enmity with Gurdeep Singh. In these circumstances, testimony of Gurdeep Singh, who is also Lambardar, assumes significance. There is no reason why he would depose falsely against his co-villager defendant and in favour of the plaintiff. There is practically no evidence on record to hold that the impugned pronote-cum-receipt has been forged and fabricated. On the other hand, execution of pronote-cum-receipt and advancement of loan is fully proved and there is also presumption under Section 118 of the Negotiable Instruments Act regarding payment of consideration for the pronote. Thus suit of plaintiff has been rightly decreed by the Courts below. There is concurrent finding by both the Courts below in favour of the plaintiff-respondent. The said finding is based on proper appreciation of evidence and is supported by cogent RSA No.5155 of 2010 (O & M) -6- reasons and is not shown to be perverse or illegal so as to warrant interference in second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is devoid of any merit and is, therefore, dismissed in limine. 17.01.2011. ( L. N. MITTAL ) A. Kaundal JUDGE