RSA No.541 of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.541 of 2007 Date of decision: 25.5.2009 M/s Structo Mech. ......Appellant Versus Satnam Singh and others ......Respondents CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG Present: Mr. G.L. Bajaj, Advocate for the appellant. Mr. Ashok Jindal, Advocate for the respondents. * * * Rakesh Kumar Garg, J. This is plaintiff's second appeal challenging the judgment and decree of the Lower Appellate Court whereby appeal filed by the defendant-respondents was accepted and the suit of the plaintiff-appellant was dismissed. As per the averments made in the plaint, the appellant filed a suit for mandatory injunction for directing the defendant-respondents to hand over the machinery/equipments taken on hire basis on the ground that they have failed to abide by the norms as agreed upon by the parties at the time of execution of Hire Purchase Agreement. The suit was contested by the defendant-respondents denying the averments made in the suit. It was further stated that there was a writing between the parties dated 25.8.2001 and in view of this writing, the plaintiff-appellant was estopped from claiming anything. On the basis of these averments, the following issues were framed by the trial Court: “1. Whether the plaintiff is entitled to mandatory injunction as prayed for?OPP 2. Whether the suit is not maintainable in the present RSA No.541 of 2007 2 form?OPD 3. Whether the suit is bad for mis-joinder of parties?OPD 4. Whether the plaintiff has no locus standi and cause of action to file the present suit? OPD 5. Whether insufficient court fee is affixed on the plaint? OPD 6. Relief.” After conclusion of evidence by the parties and hearing arguments, the trial Court decreed the suit of the plaintiff-appellant vide judgment and decree dated 27.4.2006. Feeling aggrieved against the impugned judgment and decree, the defendants filed an appeal which was allowed vide impugned judgment and decree dated 17.8.2006. While allowing the aforesaid appeal, the Lower Appellate Court observed as under: “After going through Exh.D-8 it is obvious as if appellants along with witness of account opening form, Mr. Ashok Gupta, respondent Kehar Singh and others arrived at agreement vide which they ratified all the transactions arrived at by Kehar Singh as proprietor of M/s Acme Refrigeration Company. In view of this Bank chose note to file any complaint, even though the accounts were closed. Thus, in view of settlement Exh.D-9 matter closed by Delhi police. It was after closure of the matter by police that parties arrived at compromise through writing Exh.D-1 in presence of DW-2 in his office. So statement of independent witness, namely, DW-2 establishes as if settlement RSA No.541 of 2007 3 Exh.D-1 was arrived at not at the police station, but in the office of State Bank of Patiala, Pritampura Branch, New Delhi. If that be the position, then PW-1 telling lie regarding obtaining of his signatures on Exh.D-1, when it was blank. DW-2 claims that it is will of the parties to arrived at compromise or not and as such that shows that in fact Exh.D-1 was arrived at between the parties of this appeal in office of DW-2 with their free will for settling the dispute of all types. So Exh.D-1 has to be given effect to. As Exh.D-1 depicts the last of the transactions between the parties aiming at settlement of disputes, regarding return of the machinery of Kehar Singh or of the liabilities of Kehar Singh towards appellants Joginder Singh and Satnam Singh and as such this final settlement Exh.D-1 has to be given effect to. Through Exh.D-1 respondent Kehar Singh agreed to pay Rs.50,000/- to Satnam Singh and further Rs.50,000/- more to Joginder Singh and only on such payment respondent Kehar Singh undertoook to seek return of the machinery and other articles belonging to him. No rent to be charged for use of the machinery as per terms of Exh.D-1. Thus, it is obvious that in fact respondent undertook in writing to seek return of the machinery on payment of aforesaid amount of Rs.50,000/- each to Satnam Singh and Joginder Singh. That amount not claimed by PW-1 to have been paid and testimony of DW-2 or of other witnesses do not show about such RSA No.541 of 2007 4 payment and as such it is obvious that respondent not entitled to return of machinery as per Exh.D-1 till payment of Rs.50,000/- to Satnam Singh and Joginder Singh each made.” Feeling not satisfied against the judgment and decree of the Lower Appellate Court, the plaintiff has filed the instant appeal. Learned counsel for the appellant has vehemently argued that as per the writing dated 25.8.2001 Ex.D1, the appellant was entitled to get back its machinery as the payment was not made to the defendant- respondents which has been proved from the evidence on record and in fact, the Lower Appellate Court has erred at law while returning a finding contrary to the evidence on record. On the basis of the aforesaid arguments, the learned counsel for appellant has argued that the following substantial question of law arises in this appeal: “Whether the findings of the Lower Appellate Court are perverse?” On the other hand, learned counsel appearing on behalf of the respondents has supported the findings of the Lower Appellate Court and has prayed for dismissal of the appeal. I have heard learned counsel for the parties. While allowing the appeal, the Lower Appellate Court has found that Ex.D1 depicts that the defendant-respondents have agreed to return the equipments only on payment of Rs.50,000/- by the appellant. However, the aforesaid amount of Rs.50,000/- has not been proved to have been paid and, therefore, the appellant was entitled to return the machinery till the payment of Rs.50,000/- was made to the defendant- respondents. As to whether the payment was made by the appellant to the respondents in view of Ex.D1, is a question of fact and a finding has been RSA No.541 of 2007 5 returned by the Lower Appellate Court on appreciation of evidence. I find no fault with the aforesaid finding. No substantial question of law arises. Dismissed. May 25, 2009 (RAKESH KUMAR GARG) ps JUDGE