R.S.A. No. 2361 of 2009 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH R.S.A. No. 2361 of 2009 (O&M) Date of decision : 7.9.2010 ... Boota Singh and others ................Appellants vs. Sameer Kansal and another .................Respondents Coram: Hon'ble Mr. Justice K.C. Puri Present: Sh. Suresh Goel, Advocate for the appellants Sh. K.K. Garg, Advocate for respondent No.1. ... K.C. Puri, J. This is a regular second appeal directed by defendant No. 2 to 4 against the judgment dated 7.2.2009 passed by Ms. Archana Puri, Additional District Judge, Barnala, vide which the appeal preferred by the plaintiff against the judgment dated 1.8.2008 passed by Ms. Manjot Kaur, PCS. Additional Civil Judge (Senior Division), Barnala, was accepted and suit of the plaintiff for recovery of Rs.1,70,000/- with proportionate costs alongwith interest @ 9% per annum from the date of execution of the mortgage deed till realization, was decreed. Briefly stated, plaintiff-Sameer Kansal filed a suit for recovery of Rs.3,46,800/- against the defendants with the allegation that Gulwant Singh defendant No.1 has taken a loan of Rs.1,70,000/- from him on 29.5.2002 repayable alongwith interest @ 2% per R.S.A. No. 2361 of 2009 -2- month. Defendant No. 1 executed mortgage deed in respect of 48 kanals 19 marlas of land in favour of the plaintiff. Defendant No.1 failed to repay the loan amount. Legal notice dated 5.9.2006 was issued to defendant No.1. Thereafter on 9.9.2006 plaintiff was making preparation for filing of present suit and he later on came to know that sale deed has been executed by defendant No. 1 in favour of defendants No. 2 to 4 on 13.9.2004. Registered notice dated 16.9.2006 in this regard was issued to defendant No.1. The amount of Rs.1,70,000/- has not been paid. Hence the suit. Defendants filed the written statement, taking preliminary objections of maintainability, locus standi etc. On merits, defendants admitted the fact that defendant No.1 has availed a loan amounting to Rs.1,70,000/- from the plaintiff and also admitted the factum of execution of mortgage deed by defendant No.1 in favour of the plaintiff. It is pleaded that defendant No.1 used to sell his produce through Jawahar Lal, commission agent, who is father of the plaintiff. Defendant No.1 had taken loan of Rs.1,70,000/- from Jawahar Lal, and he executed mortgaged deed in favour of the plaintiff. The said land under mortgage was given to defendant No.1 for cultivation and defendant No.1 was to give his share of the produce to the plaintiff towards the satisfaction of interest. Accordingly, defendant No.1 had been giving the share of produce to the plaintiff and after the sale of the land by defendant No.1 to defendants No. 2 to 4, defendants No. 2 to 4 had been giving their share of produce to the plaintiff. It is further pleaded that on 7.6.2006, defendants No. 2 to 4 in the presence of Jit Singh, son of Hardit Singh, had paid a sum of R.S.A. No. 2361 of 2009 -3- Rs.1,70,000/- to Jawahar Lal, father of the plaintiff. Jawahar Lal on receipt of the said amount refused to hand over the mortgage deed to the defendants on the pretext that the same was in possession of his son Sameer Kansal, who was not available at that time and agreed to return the same on the next day. But the mortgage deed was not returned. In the replication, averments made in the written statement were denied and that of plaint were reiterated. From the pleadings of the parties, following issues were framed:- 1. Whether defendant took cash loan of Rs.1,70,000/- from the plaintiff @ Rs.2% per month interest? OPP. 2. Whether plaintiff is entitled to recover suit amount from the defendant, if so, at what rate of interest? OPP. 3. Whether suit is not maintainable in the present form? OPD 4. Whether the suit is barred due to non-joinder of necessary parties? OPD 5. Relief. Plaintiff, in order to prove his case appeared himself as PW-1 and closed the evidence. In rebuttal, defendant examined DW-1 Jit Singh and Boota Singh-defendant himself appeared as DW- 2 and closed the evidence. Learned trial Court has returned the finding on issues No. 1 and 2 against the plaintiff. Issue No. 3 was also decided in favour of defendants and against the plaintiff. However, issue No. 4 was decided against the defendants and in favour of the plaintiff. In view R.S.A. No. 2361 of 2009 -4- of the findings on issues No. 1 to 3, the suit of the plaintiff was dismissed vide judgment dated 1.8.2008 passed by Ms. Manjot Kaur, PCS. Additional Civil Judge (Senior Division), Barnala. Feeling dissatisfied with the above said judgment, the plaintiff filed the Ist appeal. Mrs. Archana Puri, Additional District Judge, Barnala, vide judgment dated 7.2.2009, accepted the appeal by reversing the judgment of the trial Court and suit of the plaintiff for recovery of Rs.1,70,000/- with proportionate costs alongwith interest @ 9% per annum from the date of execution of the mortgage deed till realization of the decretal amount, was decreed against all the defendants. Feeling dissatisfied with the judgments dated 7.2.2009, referred to above, defendants No. 2 to 4 have preferred the present regular second appeal. The appellants in para No. 9 of the grounds of appeal have mentioned that following substantial questions of law have arisen from the pleadings of the case:- I) Whether the suit for recovery beyond the period of limitation of 3 years is maintainable especially when the suit of the plaintiff is not based on the mortgage of the property and the remedy to file suit under Order 34 of the CPC? II)Whether wrong appreciation of facts and law, are sustainable in the eyes of law? III)Whether the suit of the plaintiff can be decreed on the basis of assumptions and presumption and beyond the R.S.A. No. 2361 of 2009 -5- pleadings? Learned counsel for the appellants has submitted that amount was advanced by the plaintiff to defendant No.1 on 29.5.2002. The suit for recovery could be filed within three years, as mortgage suit has not been filed, the suit of the plaintiff in not within limitation as the same was filed on 29.9.2006. It is further contended that plaintiff could file a suit for foreclosure of the mortgage and the present suit is not maintainable. It is further submitted that the Ist Appellate Court has not appreciated the facts and the law properly. The suit of the plaintiff has been decreed on the basis of presumptions and assumptions and on the basis of non-existing pleadings. The amount of Rs.1,70,000/- was advanced to Jawahar Lal, father of the plaintiff. The said amount was returned to him. The plaintiff is not entitled to any amount from the defendant-appellants as there is no privity of contract. So, prayer has been made for acceptance of appeal. Counsel for the plaintiff- respondent No.1 has supported the judgment of the Ist Appellate Court. I have given my thoughtful consideration to the rival submissions made by counsel for both the sides and have also gone through the record of the case. So far as the admitted case of the parties is concerned, plaintiff had advanced an amount of Rs.1,70,000/- to defendant No.1 and defendant No.1 executed a mortgage deed to secure the loan. It is also not disputed that defendant No.1 without making payment of the loan amount, executed the sale deed in respect of the suit property in R.S.A. No. 2361 of 2009 -6- favour of defendants No. 2 to 4, who are the appellants before this Court. It is also not disputed that in the sale deed in favour of defendants No. 2 to 4, it is specifically mentioned that amount of Rs.1,70,000/- has been kept for payment to the plaintiff as the land has been mortgaged. The point for divergence starts when the defendant- appellants have taken a stand that an amount of Rs.1,70,000/- has been paid to Jawahar Lal, father of the plaintiff. The Ist Appellate Court, after appraisal of the evidence, returned a finding that defendants No. 2 to 4 (now appellants), have failed to prove that the amount of Rs.1,70,000/- has been paid by defendants No. 2 to 4 (now appellants), to Jawahar Lal, father of plaintiff. That being a finding of fact, cannot be interfered in the regular second appeal. Otherwise also, in the mortgage deed, there is a recital that any amount without receipt by the plaintiff shall not be adjusted. So far as challenge of the appellants on the ground of limitation is concerned, that challenge is meritless. In case the loan amount is secured by mortgaging the immovable property, the limitation for filing the suit is 12 years from the date of execution of mortgage deed. The present suit is well within limitation on that account. Otherwise also, the contesting defendants have purchased the property from defendant No.1 on 13.9.2004 and there is a recital in that sale deed acknowledging the debt of Rs.1,70,000/- payable to the plaintiff and on that account also, the suit is within limitation. There is nothing on the file to show that the Ist Appellate court has made R.S.A. No. 2361 of 2009 -7- wrong appreciation of the facts and law. There is nothing on the file that suit of the plaintiff has been decreed on the basis of assumptions and presumptions and on the basis of non-existing pleadings. So, in view of the above discussion, all the substantial questions of law raised in the present appeal, stand answered against the appellants. Consequently, the appeal is without any merit and the same stands dismissed with costs. Decree sheet be prepared. All the miscellaneous applications also stand disposed of. ( K.C. Puri ) 7.9.2010 Judge chugh