R.S.A. No. 2727 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 2727 of 2010 (O&M) Date of decision : 12.1.2011 Nanak Chand Narang and others ......Appellants Versus Kuldeep Chitkara and others .......Respondents ********* CORAM: HON'BLE MRS. JUSTICE SABINA Present : Mr. N.C. Kinra, Advocate, for the appellants. **** SABINA, J. Plaintiffs-appellants filed a suit for declaration that defendant No.1 was legally bound to return the arrears of loan and discharge all liabilities which had accrued against the plaintiffs in connection with firm M/s Tawa Two, SCO No.3, Sector 11, Panchkula in terms of agreement dated 23.5.1999. The case of the plaintiffs in brief was that the plaintiffs had sought loan from defendant No.2 for running business in the name and style of M/s Tawa Two, Panchkula. Defendant No.2 advanced loan to the plaintiff for a sum of ` 2 lac. However, the plaintiffs could not run the business successfully and they entered into an agreement with defendant No.1 in the presence of witnesses Mr. Mukesh Malhotra and Mr. Rohit Sain R.S.A. No. 2727 of 2010 (O&M) 2 Sharma and thereby gave up their entire claim as well as their liability in the firm. Defendant No.1 accepted the entire claim and liability qua the firm. Defendant No.1, however, failed to clear the loan amount. Defendant No.2 had filed suit for recovery against the plaintiffs and guarantors including defendant No.1 before the Debt Recovery Tribunal, Jaipur. Defendant No.1, in his written statement, denied that he had ever stood as a security/guarantor for any loan taken by the plaintiffs from defendants No.2 and 3. It was denied that defendant No.1 had ever taken over any liability of the plaintiffs towards defendants No.2 and 3 or had ever agreed to repay any loan taken by the plaintiffs for running their business. Defendants No.2 and 3, in their written statement, admitted the factum of advancement of loan to the plaintiffs by the Bank. It was averred that defendants No.2 and 3 were not party to the alleged agreement between the plaintiffs and defendant No.1. The plaintiffs and defendant No.1 had cheated the Bank by misappropriation of goods. On the pleadings of the parties, following issues were framed by the trial Court :- 1. Whether the plaintiff and defendant No.1 had entered into an agreement dt. 23.5.95 in accordance with the terms and conditions as mentioned in para no.6 of the plaint ? OPP 2. Whether plaintiff is entitled to the relief as claimed for ? OPP 3. Whether the suit is not maintainable in the present form ? OPD 4. Whether the plaintiff has no cause of action to file the present suit ? OPD R.S.A. No. 2727 of 2010 (O&M) 3 5. Whether the plaint has not been signed and verified by the duly authorized person ? OPD 6. Whether the proper court fee has not been affixed on the plaint ? OPD 7. Whether the said agreement is not enforceable under the provisions of Specific Relief Act, 1963 ? OPD 8. Whether the suit is not liable to be stayed under Section 10 of the CPC ? OPD 9. Relief. The learned trial Court dismissed the suit of the plaintiffs vide judgment and decree dated 16.5.2009. Appeal filed by the plaintiffs was dismissed by the District Judge, Panchkula vide judgment and decree dated 10.12.2009. Hence, the present appeal by the plaintiffs. After hearing the learned counsel for the appellants, I am of the opinion that the instant appeal deserves dismissal. The plaintiffs had based their claim on agreement Ex.P-1 dated 23.5.1995 executed between them and defendant No.1. However, plaintiffs failed to prove the said document in accordance with law. The original of Ex.P-1 was not placed on record, but a photocopy of the agreement was exhibited as Ex.P-1. At the time of exhibition of the agreement, defendants had raised objection qua the said document. In rebuttal, plaintiffs moved an application seeking permission to take specimen signature of defendant No.1 so that the same could be got compared with his signature on agreement Ex.P-1 and rent agreement dated 2.11.1992. The said application was dismissed as the plaintiffs were required to prove the agreement in affirmative. It is not a case where the defendants had not raised any R.S.A. No. 2727 of 2010 (O&M) 4 objection at the time of exhibition of Ex.P-1. When the plaintiffs exhibited photocopy of the agreement as Ex.P-1 in their affirmative evidence a specific objection was raised by the defendants qua mode of proof of the said document. At that stage, it was necessary for the plaintiffs to prove the original agreement on record. The application was, thus, rightly dismissed by the trial Court seeking permission to examine an expert in rebuttal. Moreover, the terms and conditions of the agreement cannot be binding on defendants No.2 and 3. Admittedly, defendants No.2 and 3 had filed proceedings for recovery before Debt Recovery Tribunal, Jaipur. Learned counsel for the appellants, during the course of arguments, has submitted that so far as the liability of the plaintiffs qua defendants No.2 and 3 is concerned, the same has been satisfied as the amount in question has been paid to defendants No. 2 and 3 during the pendency of the suit. Now the dispute remains only between plaintiffs and defendant No.1. Since the plaintiffs had failed to prove the agreement in question in accordance with law, the Courts below had rightly dismissed the suit of the plaintiffs. No substantial question of law arises in this case which would warrant interference by this Court. Dismissed. (SABINA) JUDGE January 12, 2011 Anand