R.S.A. No. 2518 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 2518 of 2009 Date of Decision: 10.07.2009 1. M/s Punj Brothers Ltd., Unit II, Village Kanech, Opp. Gurdwara Attarsar, G.T. Road, Sahnewal, Ludhiana, through its Director Shri Rajinder Punj. 2. Sh. Vasudev Punj, Director, M/s Punj Brothers Ltd., Unit II, Village Kanech, Opp. Gurdwara Attarsar, G.T. Road, Sahnewal, Ludhiana. 3. Shri Lal Chand Punj, Director, M/s Punj Brothers Ltd., Unit II, Village Kanech, Opp. Gurdwara Attarsar, G.T. Road, Sahnewal, Ludhiana. ... Appellants Versus Teja Singh, Proprietor M/s Kalra Enterprises, 40 Krishna Market, Overlock Road, Ludhiana, through his General Power of Attorney Shri Joga Singh son of Sh. Gurmukh Singh. ...Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Amit Rawal, Senior Advocate, with Mr. G.S. Ahluwalia, Advocate, for the appellants. SHAM SUNDER, J. * * * * This appeal, is directed, against the judgement and decree, dated 10.06.2008, rendered by the Court of Civil Judge (Senior Division), R.S.A. No. 2518 of 2009 2 Ludhiana, vide which, it decreed the suit of the plaintiff/respondent, for recovery of Rs. 5,57,027/-, with interest @ 12 per cent per annum, on the principal amount of Rs. 4,11,027/-, from the date of filing the suit, till the realization of the amount, and the judgement and decree dated 10.02.2009, rendered by the Court of Additional District Judge, Ludhiana, vide which, it dismissed the appeal, with modification, that the plaintiff will be entitled to interest @ 12 per cent per annum, on the principal amount, from the date of filing the suit, till the decision thereof, and 6 per cent per annum, from the date of decree, till realization. 2. The facts, in brief, are that the plaintiff/respondent, is the sole proprietor of M/s Kalra Enterprises, Ludhiana. He appointed his brother Joga Singh, as his attorney, vide power of attorney dated 11.03.2005. The defendants had been purchasing non-alloy steel ingots, on credit, from the plaintiff, against the bills. They used to make part payments, after the purchase of articles. They also used to acknowledge the purchase of goods, by signing the declaration, on the reverse of the bills. As per the books of account, maintained by the plaintiff/respondent, an amount of Rs. 4,11,027/-, was due to him, against the defendants/appellants. They were many a time, asked to pay the amount, but to no avail. Ultimately, a suit for recovery, with interest @ 18 per cent per annum, was filed. 3. The defendants/appellants, put in appearance, and filed written statement, wherein, they took up various objections, and contested the suit. It was pleaded that Joga Singh, had no authority, to institute the suit, on behalf of the plaintiff/respondent, as the power of attorney executed, in his favour, was defective. It was admitted by the defendants/appellants, that they were the Directors of M/s Punj Brothers. It was denied that they had R.S.A. No. 2518 of 2009 3 been purchasing the non-alloy steel ingots, from the plaintiff/respondent. They also denied their liability, to the tune of Rs. 4,11,027/-, towards the plaintiff/respondent. It was further stated that the books of account of the plaintiff/respondent, were not correct. It was further stated that the plaintiff/respondent, had not made any entry, regarding the purchase of steel rounds worth Rs. 3,97,205/-, from the defendants/appellants, on 31.03.2003. It was further stated that, on 31.03.2003, the defendants/appellants, were liable to pay Rs. 3,86,955/-, and after adjusting the said amount, against the amount of Rs. 3,97,205/-, the plaintiff/respondent, became liable to pay a sum of Rs. 10,250/- on account of the purchase of steel rounds. It was further stated that the plaintiff/respondent, had made the payment, on 24.09.2003. The remaining averments were denied. 4. On the pleadings of the parties, the following issues were struck:- i) Whether the defendant used to purchase non-alloy steel ingots on credit from the plaintiff. Now as per account of the calculating the interest at the rate of 18% p.a., the plaintiff is entitled to recover Rs. 6,31,027/- from the defendant? OPP ii) If issue No. 1, is proved, whether the plaintiff is also entitled to interest at the rate of 18% p.a., from the date of filing the suit till its realization? OPP iii) Whether the plaintiff has no locus standi to file the present suit? OPD iv) Relief. 5. After hearing the Counsel for the parties, and, on going through the evidence and record of the case, the trial Court, decided issues No. 1, 2, and 3, in favour of the plaintiff/respondent, and against the R.S.A. No. 2518 of 2009 4 defendants/appellants. Ultimately, the suit, was decreed by the trial Court. 6. Feeling aggrieved, an appeal was preferred by the defendants/appellants, which was dismissed, with modification, by the Court of Additional District Judge, Ludhiana, vide judgement and decree dated 10.02.2009. 7. Still feeling dissatisfied, the instant Regular Second Appeal, has been filed by the defendants/appellants. 8. I have heard the Counsel for the appellants, and have gone through the record of the case, carefully. 9. The Counsel for the defendants/appellants submitted that, the plaintiff/respondent, himself did not appear, in the witness box, to prove his case. He further submitted that only Joga Singh, his (plaintiff/respondent's) attorney, put in appearance, on his behalf. He further submitted that Joga Singh, was not having personal knowledge of the facts of the case, and, as such, he could not depose, on behalf of the principal. He further submitted that such evidence of Joga Singh, could not be taken into consideration, but the Courts below, were wrong, in placing reliance thereon. He further submitted that no goods were purchased by the defendants from the plaintiff. He further submitted that the Courts below, were wrong, in coming to the conclusion, that the plaintiff/respondent, did not purchase steel rounds, worth Rs. 3,97,205/-, from the defendants/appellants. He further submitted that, no customs or usage was proved by the plaintiff/respondent, with regard to the payment of interest, on such like transactions, and, as such, the Courts below, were wrong, in awarding interest. He further submitted that the judgements and decrees of the Courts below, being illegal, and perverse, were liable to be set aside. R.S.A. No. 2518 of 2009 5 10. After giving my thoughtful consideration to the contentions, raised by the Counsel for the appellants, in my considered opinion, the appeal is liable to be dismissed, for the reasons to be recorded, hereinafter. No doubt, the defendants/appellants, denied the purchase of goods, from the plaintiff/respondent, yet when Joga Singh, attorney of the plaintiff/respondent, appeared as PW1, he proved the bill dated 12.06.2001, for a sum of Rs. 2,03,902/-, exhibit P2, bill dated 25.06.2001, for a sum of Rs. 1,90,824/-, exhibit P3, bill dated 25.08.2001, for a sum of Rs. 2,12,160/-, exhibit P4, bill dated 26.11.2001, for a sum of Rs. 1,07,027/-, exhibit P5, bill dated 25.10.2001, for a sum of Rs. 1,94,870/-, exhibit P6, and bill dated 02.08.2002, for a sum of Rs. 2,23,200/-, exhibit P7. Even the original books of account, which were being maintained, in the regular course of business, by the plaintiff, were produced, and the copies thereof, P14 to P19, relating to the account of the defendants/appellants, were produced, wherein, the entries regarding the sale of goods to the defendants by the plaintiff and the amount due to him were mentioned. Not only this, D1 to D5, the copies of ledger/bahi, maintained by the defendants/appellants, were also produced by them wherein, the entries, with regard to the bills P2 to P7, were duly made. Even, as per the entries, in D3, the statement of account from 01.04.2002 to 31.03.2003, the defendants/appellants, admitted their liability, to the tune of Rs. 4,11,028/-, towards the plaintiff/respondent. Not only this, the bills, regarding the sale of steel rounds, worth Rs. 3,97,205/-, by the defendants/appellants, to the plaintiff/respondent, were not produced. They also did not produce, any evidence, as to, in which manner, the consignment of steel rounds, was delivered to the plaintiff/respondent. Rajinder Kumar, R.S.A. No. 2518 of 2009 6 DW1, appeared. His examination-in-chief, was recorded. His cross- examination, was deferred, with a direction, to bring the original challan book, showing the delivery of the goods, to the plaintiff/respondent, but thereafter, he did not step into the witness box. Accordingly, in my opinion, the Courts below, rightly ignored his examination-in-chief, the same, being not admissible into evidence. The Courts below, were, thus, right in holding, that the plaintiff/respondent, was entitled to a sum of Rs. 4,11,027/-, with interest. 11. Coming to the statement of Joga Singh, attorney of the plaintiff/respondent, it may be stated here, that the same was admissible. Joga Singh, when appeared as PW1, proved the power of attorney P1, executed in his favour, by the plaintiff/respondent. He was well conversant with the facts of the case. The case of the plaintiff/respondent, was proved, on the basis of the bills, referred to above, and the copies of the books of account, maintained by him and the defendants/appellants. It was not such a case, in which, the examination of the principal, was necessary, so as to prove the facts, which were in personal knowledge. Had the case been not based on the documentary evidence, the matter would have been different. Under these circumstances, the evidence of Joga Singh, was admissible. He, on the basis of power of attorney P1, appeared and deposed, on behalf of the principal, as the case was solely based on the documentary evidence. No help, therefore, can be drawn, by the Counsel for the defendants/appellants, from Janki Vashdeo Bhojwani and another Vs. Indusind Bank Ltd. and others (2005) 2 (SCC) 217, as the facts thereof, are clearly distinguishable, from the facts of the instant case. The submission of the Counsel for the defendants/appellants, thus, being without merit, must fail, and the same R.S.A. No. 2518 of 2009 7 stands rejected. 12. The amount due to the plaintiff/respondent, was illegally, and improperly withheld, by the defendants/appellants, for a sufficient longer period. The transactions between the parties, were of commercial nature. Had the amount been paid to the plaintiff/respondent, by the defendants/appellants, which was due to him, against them, in time, he would have certainly invested the same, in business, and had earned, huge interest thereon. For illegally and improperly withholding the amount, which was due to the plaintiff/respondent, against the defendants/appellants, for a sufficient longer period, the Courts below, were right, in awarding interest to him. In this view of the matter, the submission of the Counsel for the defendants/appellants, being without merit, must fail, and the same stands rejected. 13. The concurrent findings of fact, recorded by the Courts below, that the amount, in question, was due to the plaintiff/respondent, against the defendants/appellants; and that he was entitled to the same with interest, being based, on the correct appreciation of evidence, and law, on the point, do not suffer from any illegality or perversity, and warrant no interference. The Courts below, thus, rightly decreed the suit of the plaintiff/respondent. 14. No question of law, much less substantial arises, in this appeal, for the determination of this Court. 15. For the reasons recorded above, the Regular Second Appeal, being devoid of merit, must fail, and the same, is dismissed. 10.07.2009 (SHAM SUNDER) Amodh JUDGE