Regular Second Appeal No. 3065 of 2009 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 3065 of 2009 Date of decision : April 21, 2011 Arjinder Singh ....Appellant versus M/s Virk Brothers and another ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. SK Singla, Advocate, for the appellant Mr. HPS Ghuman, Advocate, for the respondents L.N. Mittal, J. (Oral) Defendant Arjinder Singh having lost in both the courts below has filed the instant second appeal. Respondents/plaintiffs i.e. M/s Virk Brothers Commission Agents, a partnership firm and its partner Manjit Singh filed suit against the defendant-appellant for recovery of Rs 7,32,583/- alleging that the defendant who is agriculturist used to sell his crop at the shop of the plaintiffs and also used to borrow money from the plaintiffs from time to time. On 3.11.2003 and 5.11.2003 the defendant borrowed Rs three lacs Regular Second Appeal No. 3065 of 2009 -2- each and on 10.12.2003, the defendant borrowed Rs 3500/- and signed Bahi entries regarding these amounts. However, thereafter the defendant stopped selling his produce at the shop of the plaintiffs and did not return the aforesaid amount of Rs 6,03,500/-. The plaintiffs also claimed interest thereon @ 1.5% per month as prevalent in the market. The defendant admitted that he used to sell his crop at the shop of the plaintiffs. However, the defendant denied having received Rs three lacs each on 3.11.2003 and 5.11.2003 or having signed Bahi entries for the same. The defendant, however, admitted that he had borrowed Rs 3500/- from the plaintiffs on 10.12.2003 and at that time plaintiff no. 2 obtained signatures of defendant at three places in the Bahi of the plaintiffs and in this manner the plaintiffs might have obtained the signatures of defendant on entries dated 3.11.2003 and 5.11.2003 while obtaining his signatures on entry dated 10.12.2003. The defendant broadly denied the other plaint allegations and raised various other pleas. Learned Additional Civil Judge (Senior Division), Fatehgarh Sahib vide judgment and decree dated 21.5.2007 decreed the plaintiffs' suit for recovery of principal amount of Rs 6,03,500/- with interest thereon @ 6% per annum from the respective dates of advancement till recovery. First appeal preferred by the defendant has been dismissed by learned District Judge, Fatehgarh Sahib vide judgment and decree dated 18.3.2009. Feeling aggrieved, the defendant preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. Regular Second Appeal No. 3065 of 2009 -3- The plaintiffs in order to prove their case examined their Accountant Sikandarpal PW2 in addition to Manjit Singh plaintiff no. 2 as PW1. They broadly stated according to the plaint allegations and also proved relevant Bahi entries. On the other hand, the defendant himself stepped into witness box and broadly stated according to his version. The defendant by his written statement and examination-in- chief has impliedly admitted his signatures on Bahi entries dated 3.11.2003 and 5.11.2003 for advancement of Rs three lacs each in addition to express admission regarding entry dated 10.12.2003 regarding amount of Rs 3500/-. The defendant alleged that on 10.12.2003 when he took Rs 3500/- from the plaintiffs, his signatures were obtained at three places in the Bahi of the plaintiffs. This plea by the defendant clearly depicts that Bahri entries dated 3.11.2003 and 5.11.2003 bear his signatures. If it had not been so, the defendant would not have taken any such plea and would have categorically denied his signatures on the aforesaid Bahi entries. On the other hand, the defendant has pleaded and stated that his signatures on entries dated 3.11.2003 and 5.11.2003 might have been obtained when his signatures were obtained on 10.12.2003. Even otherwise if signatures of defendant were obtained on three entries on 10.12.2003, it would also mean that entries dated 3.11.2003 and 5.11.2003 have also been signed by him in addition to entry dated 10.12.2003 because except the aforesaid three entries, no entry bearing signatures of the defendant has come in picture or is in issue. There are also statements of plaintiff no. 2 and Sikandarpal PWs that these entries have been signed by the defendant after receiving Regular Second Appeal No. 3065 of 2009 -4- amount mentioned therein. Aforesaid evidence led by the plaintiffs coupled with testimony of the defendant has been analysed by the courts below and concurrent finding has been recorded by the courts below regarding advancement of loan by the plaintiffs to the defendant as pleaded by the plaintiffs. The said finding is supported by various reasons. The said finding is not shown to be perverse or illegal so as to call for interference in second appeal. Learned counsel for the appellant vehemently contended that provisions of Order 7 Rule 17 of the Code of Civil Procedure have not been complied with as Bahi in question was not produced in original at the time of filing of the plaint as required by the said provision. However, no such contention was raised before the courts below and at this stage it cannot be said that original Bahi was produced in the court at the time of filing of the suit or not. Moreover, it cannot be said that merely on non-compliance with the aforesaid provision, the plaintiff should be non-suited. Learned counsel for the appellant next contended that Ved Parkash Accountant who made entries in question has not been examined as witness. However, this contention also does not help the appellant because both witnesses of the plaintiffs have categorically stated that these entries were made in their presence and were signed by the defendant in their presence. Learned counsel for the appellant contended that it has not been stated by the plaintiffs' witnesses as to who paid the amount and whether the same was paid in their presence. The contention is misconceived because it is the case of the plaintiffs as also stated by both the witnesses that the Regular Second Appeal No. 3065 of 2009 -5- amount was given by the plaintiffs i.e. Manjit Singh who is partner of plaintiff no. 1 and is plaintiff no. 2 himself. A bare reading of the statements of both the witnesses makes this amply clear. Learned counsel for the appellant also contended that plaintiffs have not produced income tax returns and J-Forms regarding sale of agricultural produce by the defendant at the shop of the plaintiffs. However, production of J-Forms was not relevant because the same have no link with the suit amount. It was not even the case of the defendant that he had sold any produce on the dates on which the amounts were allegedly advanced to him or in the vicinity thereof. Moreover, original J-Forms are delivered to agriculturists and therefore, could have been in possession of the defendant himself and if he thought necessary, he himself could have produced the same. Non-production of income tax returns by the plaintiffs is also not sufficient to non-suit the plaintiffs because the plaintiffs produced the original Bahi at the time of leading evidence and the entries are reflected therein and income tax returns are submitted on the basis of Bahi entries. Bahi entries are the original record regarding transactions in question. Moreover, sufficiency of the evidence cannot be gone into in second appellate jurisdiction. Both the courts below have found the evidence led by the plaintiffs to be sufficient for decreeing the suit. For the reasons aforesaid, I find no merit in the instant second appeal. No question of law much less substantial question of law arises for determination in the instant second appeal. Concurrent finding recorded by the courts below in favour of the plaintiffs is not based on misreading or Regular Second Appeal No. 3065 of 2009 -6- misappreciation of evidence and therefore, the same cannot be interfered with in exercise of second appellate jurisdiction. The appeal is accordingly dismissed. ( L.N. Mittal ) April 21, 2011 Judge 'dalbir'