R.S.A. No. 1493 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 1493 of 2009 (O&M) Date of decision: 12.05.2009 Gora Singh @ Darshan Singh ....appellant versus Amarjit Singh ....respondent CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. S.K. Sharma Budhladawale, Advocate, for the appellant. Mr. D.S. Gurna, Advocate, for the respondent-caveator. *** VINOD K. SHARMA, J. (ORAL) C.M. No. 4443-C of 2009 This is an application under Section 149 of the Code of Civil Procedure for condoning the delay of 26 days in making good the deficiency in court fee. It is averred in the application that due to bona fide mistake, less court fee was affixed, which has been made good with delay of 26 days. For the reasons stated in the application, C.M. is allowed and the delay of 26 days in making good the deficiency in court fee is condoned. R.S.A. No. 1493 of 2009 (O&M) -2- C.M. No. 4444-C of 2009 This is an application under Section 151 of the Code of Civil Procedure for condoning the delay of 59 days in refiling the appeal. For the reasons stated in the application, C.M. is allowed and the delay of 59 days in refiling the appeal is ordered to be condoned. R.S.A. No. 1493 of 2009 and C.M. No. 4442-C of 2009 This regular second appeal is directed against the judgment and decree dated 19.9.2008 passed by the learned Courts below, vide which the suit filed by the plaintiff/respondent for recovery of Rs.2,58,000/- i.e. Rs.1,50,000/- towards principal amount and Rs.1,08,000/- as interest, has been decreed to the extent that the plaintiff/respondent has been held entitled to payment of principal amount with interest @ 9% from the date of execution of pronote till the date of judgment, and thereafter interest @ 6% till the date of recovery. The plaintiff/respondent brought a suit on the pleadings that the defendant/appellant was advanced a sum of Rs.1,50,000/- by way of loan, who executed a pronote and receipt. On receipt of the loan amount, the defendant/appellant failed to pay back the interest or the principal amount, in spite of demand. Hence the suit. The defendant/appellant contested the suit by rasing a plea that the pronote and receipt were forged and fabricated documents. The defendant/appellant had no dealing with the plaintiff/respondent. The case set up by the defendant/appellant was that he had dealing with the brother of the plaintiff/respondent, who had obtained his signatures on blank pronote and receipt. The plaintiff/respondent, in connivance with his brother, had forged the pronote and receipt to raise false demand. R.S.A. No. 1493 of 2009 (O&M) -3- The learned Courts below, on appreciation of evidence, recorded a concurrent finding of fact, that the defendant/appellant borrowed a sum of Rs.1,50,000/- against the pronote and receipt, and consequently decreed the suit, but the interest granted was reduced to 9% from the date of pronoe till the passing of decree and @ 6% after the date of passing of the decree. Though number of substantial questions of law have been framed in appeal, Mr. S.K. Sharma Budhladawale, the learned counsel apearing on behalf of the appellant, contends that only following substantial question of law arises for consideration in this appeal: - "Whether in view of the facts and the evidence led, the findings recorded by the learned Courts below have to be held to be outcome of mis-reading of documentary and oral evidence, thus, perverse?" In support of the substantial question of law, the learned counsel for the appellant contends, that the learned Courts below have mis-read the evidence in coming to the conclusion that the pronote and receipt were duly executed by the defendant/appellant by ignoring the fact that the pronote and receipt were, in fact, forged in connivance with the brother of the plaintiff/respondent, with whom the defendant/appellant had the dealing. It is further the contention of the learned counsel for the appellant, that the learned Courts below failed to notice that the pronote was without consideration, as it was proved on record that the plaintiff/respondent did not have paying capacity. Sufficient evidence was led to prove that plaintiff himself was a debtor and, therefore, could not have advanced loan to the defendant/appellant. R.S.A. No. 1493 of 2009 (O&M) -4- The plea raised by the learned counsel for the appellant cannot be accepted. The learned Courts below, on appreciation of evidence, have recorded a concurrent finding of fact that the pronote and receipt were duly proved. The plea that the blank pronote and receipt were given to the defendant/appellant was disbelieved in view of the evidence led by the defendant/appellant showing that one of the duly filled pronotes executed in favour of the brother of the plaintiff/respondent was returned. The learned Courts below recorded a finding that the evidence on record clearly showed that on return of loan, the pronote was returned to the defendant/appellant, therefore, it could not be said that any blank pronote, as claimed by the defendant/appellant, was given to him. It is also the contention of the learned counsel for the appellant, that the learned Courts below have failed to notice the contradiction in the evidence of the plainitiff/respondent, which could lead to the conclusion that the case set up by the plaintiff/respondent was wrong. As already observed above, this Court cannot reapraise the evidence to come to a different conclusion, merely on the basis of one or two contradictions in the statements of witnesses which are not material. It is also the contention of the learned counsel for the appellant, that the judgment and decree passed by the learned Courts below deserves to be set aside, as proper issues arising from the pleadings were not framed in spite of application moved by him claiming additional issues, which arose out of the pleadings of the parties. R.S.A. No. 1493 of 2009 (O&M) -5- This contention of the learned counsel for the appellant has rightly been rejected by the learned lower appellate Court by recording a finding that once parties were aware of the case set up by each other and the evidence was led on the point, mere non-framing of issues cannot be a ground to set aside the decree, which was passed on the basis of evidence on record. For the reasons stated above, the substantial question of law raised is answered against the appellant. No merit. Dismissed. (Vinod K. Sharma) Judge May 12, 2009 R.S.