R.S.A.No. 2147 of 2010 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 2147 of 2010 Date of decision: 4.1.2011 Pawan Kumar ......Appellant Versus Ranjeet Singh .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. Saurav Kaushik, Advocate, for the appellant. **** SABINA, J. Plaintiff-respondent had filed a suit for recovery, which was decreed by the Civil Judge (Jr.Divn.), Nabha vide judgment and decree dated 18.5.2009. In appeal, the said judgment and decree were upheld by the Additional District Judge, Patiala vide judgment and decree dated 7.12.2009. Hence, the present appeal by the defendant-appellant. Brief facts of the case, as noticed by the lower appellate R.S.A.No. 2147 of 2010 2 Court in para Nos. 2 and 3 of its judgment, are as under:- “2. Brief facts are that the respondent/plaintiff filed a suit for recovery of Rs.1,69,275/- (Rs.1,11,000/- as principal amount and Rs.58,275/- as interested @ 1.50% per month w.e.f. 1.10.2000 to 31.8.2003), with averment that the defendant firm is running the business of commission agent at New Grain Market, Nabha. Suresh Kumar and Pawan Kumar sons of Jagan Nath are its partners. Both the partners are equally liable for the liability of the firm on 1.10.2000 the defendant took cash loan of Rs.1,11,000/- from the plaintiff and in discharge of the liability, the defendant Suresh Kumar on behalf of the firm issued post dated cheque bearing No.867196 dated 15.10.2000 for a sum of Rs.1,11,000/- from his account No.60068 drawn on State Bank of India, Extension Counter, New Grain Market, Nabha. On presentation of the cheque, the same was returned with the memo dated 6.3.2001 with the endorsement “insufficient funds” to the banker of the plaintiff. Legal notice dated 20.3.2001 U/s. 138 of the Negotiable Instrument Act was served on the appellant/defendant to which he did not file reply and a complaint U/s. 138 of the Negotiable Instruments Act in the Court of learned SDJM, Nabha was filed on 19.4.2001. The respondent/plaintiff is entitled to recover R.S.A.No. 2147 of 2010 3 Rs.1,69,275/- from the appellant/defendant along with future interest as the appellant/defendant is using the amount of the plaintiff. Prior to institution of the suit, the respondent/plaintiff asked the appellant/defendant many a times to make payment of the said amount with interest till date but the appellant/defendant refused to pay even a single pie out of the loan amount. Hence this suit. 3. On being put to notice, the appellant/defendant filed written statement admitting that the defendant firm was carrying on business of commission agent. However, it was denied that Suresh Kumar and Pawan Kumar are still partners to the firm. They had retired from the commission agent business along ago and it was denied that the appellant/defendant borrowed or took any cash loan from the respondent/plaintiff as alleged. It was stated that the respondent/plaintiff cheated them as he had presented the cheque when firm was dissolved, so, proceedings against him under the law be taken as he has cheated the firm and its partners knowing well that the firm has been dissolved. It was further stated that it is concocted story and there is no cause of action. Prayer for dismissal of the suit was thus made. R.S.A.No. 2147 of 2010 4 On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the defendant took cash loan of Rs.1,11,000/- from the plaintiff ? OPP 2. Whether in order to discharge the liability of the firm defendant Suresh Kumar issued post dated cheque dated 15.10.2000 ? OPP 3. Whether cheque dated 15.10.2000 was dishonoured with the remarks “insufficient funds”? OPP 4. Whether the plaintiff is entitled to recover Rs.1,11,000/- ? OPP 5. Whether the suit is not maintainable ? OPD 6. Whether the suit is within time ? OPP 7. Whether the suit of the plaintiff is false, frivolous and defendant is entitled for special costs ? OPD 8. Relief. After hearing learned counsel for the appellant, I am of the opinion that the present appeal is devoid of any merit and deserves dismissal. Plaintiff had filed a suit for recovery alleging that the R.S.A.No. 2147 of 2010 5 defendant-firm was being run by its partners Suresh Kumar and Pawan Kumar. A loan of ` 1,11,000/- was taken by the firm from the plaintiff on 1.10.2000. In discharge of the said liability, Suresh Kumar issued a cheque bearing No.867196 dated 15.10.2000 for a sum of ` 1,11,000/- in favour of the plaintiff. However, when the cheque was presented for encashment it was received back unpaid with the report “Insufficient Funds”. In the written statement filed by the defendant, the fact that the appellant was running the firm along with his brother Suresh Kumar, was not denied. However, it was denied that any loan had been taken by the defendant from the plaintiff. It was further averred that the cheque in question had been issued by Suresh Kumar in his individual capacity. It was also averred in the written statement that Suresh Kumar and Pawan Kumar had retired from the business long ago. Both the Courts below, after appreciating the evidence on record, have given a finding of fact that the cheque in question was issued by Suresh Kumar being partner of the firm. It has further been held by the Courts below that there was nothing on record which suggests that the partnership firm was no longer in existence or the fact that the appellant had retired from the firm. Admittedly, Suresh Kumar, who is the brother of the appellant has since died. Although the appellant has been acquitted in the criminal case but the judgment of the criminal Court is not binding on the Civil Court. From the evidence led by the plaintiff, it was duly proved that the cheque in question had R.S.A.No. 2147 of 2010 6 been issued by Suresh Kumar on behalf of the firm and since the appellant had failed to establish that the firm was no longer in existence, the Courts below had rightly decreed the suit filed by the plaintiff. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE January 04, 2011 anita