IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A. No. 35 of 2009. Reserved on: 03.12.2010. Decided on: 07.01.2011. Ajay Sharma. …Appellant. -Versus- D.K. Hastir …Respondent. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. __________________________________________________________ For the appellant. : Mr. Y.P. Sood, Advocate. For the respondent. : Mr. V.D. Khidta, Advocate. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge: This Regular Second Appeal is directed against the judgment and decree dated 15.10.2008, passed by the learned Additional District Judge, Fast track Court, Shimla in Civil Appeal No. 54-S/13 of 2007. 2. Material facts necessary for adjudication of this Regular Second Appeal are that the respondent-plaintiff (hereinafter referred to as “the plaintiff” for convenience sake) had instituted a suit for recovery of `2,35,600/-. Case of the plaintiff was the appellant-defendant (hereinafter referred to as “the defendant” for brevity sake) was known to him. Plaintiff advanced a sum of `1,60,000/- to the defendant for running business for a period of two weeks. He asked the defendant to return the aforesaid amount, but he requested for more time. 1 Whether the reporters of the local papers may be allowed to see the judgment? No. - 2 - Plaintiff executed and signed an agreement to repay the amount by 15.07.1999. He requested the defendant to make the payment. He also served a legal notice on the defendant on 19.08.2001through registered post and UPC. 3. The suit was contested by the defendants. On merits, it was averred that neither the defendant had any relations with the plaintiff nor during the 1st week of March, 1999, he bad borrowed a sum of `1,60,000/-.He has denied the execution of an agreement. According to him, the document in question had been manipulated and forged by the plaintiff. According to him, the agreement does not bear his signatures and the same appears to have been forged by the plaintiff and the signatures are different from his signatures on written statement and power of attorney. 4. Plaintiff filed the replication. The trial Court framed the issues on 01.12.2004. 5. Plaintiff has appeared as PW-5. He has led evidence by way of affidavit Ex.PW-5/A. Ex.PW-5/A corroborates the contents of the plaint. According to him, Ex. PW-4/B is the same agreement, which had been executed between the parties at Shimla and the defendant had signed agreement after admitting the contents of the same. He had proved the issuance of notice Ex. PW-5/B. He also deposed that the agreement was got examined from the expert, whose report is Ex.PW-5/E. 6. PW-1 is Shri Madan Lal. He has deposed that he has not brought the summoned record as it has been destroyed. The certificate to that effect is Ex. PW-1/A. - 3 - 7. PW-2 is Shri Poonam Bhai Yadav. He was working in the office of Sub-Registrar, Pardi, Tehsil Pardi, District Valsad, Gujrat. He brought the record and proved Ex. PW-2/A and Ex. PW-2/B, i.e., the copies of various documents bearing the signatures of the defendant. PW-3 is Shri Jitender Verma. He has also led his evidence by way of affidavit Ex. PW-3/A. He has deposed that he knew the plaintiff for the last more than 7 years. It was in the first week of March, 1999 that the plaintiff approached him and told that he was in need of `20,000/- as the money was to be given to one Shri Ajay Sharma (defendant). He requested the plaintiff to meet him on the next day after 5 P.M. near Baljees Restaurant, The Mall, Shimla. He handed over `20,000/- in cash to the plaintiff. Thereafter, the plaintiff gave `1,60,000/- in cash to the defendant in his presence. 8. PW-4 is Smt. Gargi Hastir. She has also led her evidence by way of affidavit. She has testified that the agreement dated 28.03.1999 (Ex.PW-4/B) was made in her presence, which was signed by the defendant and the plaintiff and thereafter, she had also signed the same. She also deposed that defendant was known to her since, 1997. Plaintiff has also examined Subhashish Dey as PW-6. He is the expert of Questioned Documents. He has proved the report Ex. PW-5/E. According to him, the document Ex. PW-4/B and written statement contain signatures of the defendant encircled “A, B and C”. In his cross- examination, he admitted that he has given the opinion after the comparison of the photostate copies of the document. - 4 - 9. Defendant has appeared as DW-1. He has deposed that he deals in purchase and sale of flats at Vapi alongwith his brother Sudhir Sharma. He further deposed that plaintiff was their employee as Supervisor. He worked for two-three years, but later on, he abandoned the job. He deposed that he never came to Shimla during March, 1999. He came to Shimla for the first time on receipt of summons from the Court. He denied the execution of agreement Ex. PW-4/B. He has also denied his signatures. According to him, he had never raised any loan from the plaintiff. He was confronted with documents Ex. PW-2/A and Ex.PW-2/B. However, he has admitted that plaintiff’s wife, i.e., PW-4 was known to him. 10. What emerges from the oral as well as document evidence, is that the defendant has raised the loan from the plaintiff and he has agreed to re-pay the same as per agreement Ex.PW-4/B. This agreement was witnessed by PW-4. Defendant has not filed any reply to the notice issued to him by the plaintiff. Though the defendant has denied his signatures on the agreement, however, the same were duly proved by the expert of Questioned Documents, PW-6 Subhashish Dey. PW-6 Subhashish Dey has compared the signatures of the defendant on various documents and written statement. 11. The findings recorded by both the Courts below are based on correct appreciation of evidence brought on record by the parties. There is no substantial question of law involved in this Regular Second Appeal. - 5 - 12. Accordingly, in view of the observations made hereinabove, there is no merit in this appeal and the same is dismissed. (Rajiv Sharma) Judge January 07, 2011. (bhupender) - 6 -