R.S.A.No.3083 of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No.3083 of 2007 Date of Decision : 07.09.2009 M/s Sumit Exports and others ...Appellants Versus Parvesh Kumar Jain ...Respondent CORAM:HON'BLE MR. JUSTICE HEMANT GUPTA 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr. P.S.Khurana, Advocate, for the appellants. Mr. P.K.Jain, Advocate, for the respondent. HEMANT GUPTA, J. (ORAL) The defendants are in second appeal aggrieved against the judgment and decree passed by the Courts below, whereby the suit for recovery of Rs.2,96,235.32 paise and interest amounting to Rs.22,217.64 paise, was decreed. It is the case of the plaintiff-respondent that the plaintiff has supplied tags, corrugated boxes, labels and other packing material to the defendants, on credit from time to time. The defendants have been making part payments and last part payment of Rs.4,27,790.50 paise was made vide cheque dated 16.1.2001. After adjusting the said sum, a sum of Rs.2,96,235.32 paise was found due from the defendants payable to the R.S.A.No.3083 of 2007 2 plaintiff. The defendants in the written statement, took up a stand that material supplied by the plaintiff was rejected by the customers of the defendants and after adjustment of the account in January, 2001, there is no balance in the account-books of the defendants towards the plaintiff. The plaintiff produced his evidence including copies of ledger Exs.P-1 to P-7 and notice Ex.P-8. However, the defendants did not lead any evidence as the evidence of the defendants was closed by an order. The learned trial Court decreed the suit holding that the aforesaid amount is due from the defendants to the plaintiff. The income- tax returns of the plaintiff Exs.PW-2/1 to PW-2/9 were taken into consideration, as the balance-sheets reflect the amount due from the defendants payable to the plaintiff. Thus, the learned trial Court granted a decree for recovery of Rs.2,96,235.32 paise and interest at the rate of 18% per annum from 31.3.2001 to 31.8.2001 as also future interest at the rate of 12% per annum from the date of filing of the suit till realization. Said decree was affirmed in appeal as well. The defendant-appellants have also challenged the order of closing of evidence dated 20.3.2006 and also an order passed on an application, declining the permission to lead additional evidence filed before the learned first Appellate Court on 30.5.2007. It has been found by the learned first Appellate Court in an application to lead additional evidence to the effect that the defendants were given six opportunities to lead evidence i.e. 21.11.2005, 6.12.2005, 22.12.2002, 1.1.2006, 13.3.2006 and 20.3.2006. However, the defendants failed to examine any of the witness. It has also been noticed R.S.A.No.3083 of 2007 3 that though one of the defendants had gone abroad from 19.3.2006 to 26.3.2006, but the defendants could examine its other partner. Having failed to lead evidence in defence, in spite of number of opportunities, the Court found no indulgence can be given to the defendants to lead evidence in first appeal. Learned counsel for the appellants has argued that though the suit was filed in the year 2001, but it was only on 21.11.2005, the case was fixed for the evidence of the defendants, for the first time. In a span of about 4 months, six opportunities are purportedly have been given to the appellants as against almost four years taken by the plaintiff to lead its evidence. Therefore, the learned trial Court has dealt with the trial in not a fair manner. The said argument raised by the learned counsel for the appellants is untenable. Mere fact that the plaintiff has taken some time to lead evidence, does not lead to inference that the defendants are also entitled to equal time to lead evidence. The defendants were granted six opportunities to lead evidence, but no evidence was examined. It is not the number of days, which are important to lead evidence, but the opportunities, which were available with the defendants, but not availed of. In view of the said fact, I do not find any patent illegality or irregularity in the order passed by the learned trial Court closing the evidence of the defendants and the order passed by the learned first Appellate Court, declining the permission to lead additional evidence. Learned counsel for the appellants then contended that a sum of Rs.1,50,126/- paid on 8.11.2000 has not been accounted in the statement R.S.A.No.3083 of 2007 4 of account Ex.P-4. However, the said argument is again not tenable. In fact, the said entry is not a credit entry, but the total of two entries of Rs.1,00,000/- dated 9.9.2000 and Rs.15,126/- on 12.10.2000 on the same page of ledger. Thus, the argument raised by the learned counsel for the appellant that an amount of Rs.1,50,126/- has not been taken into consideration is factually incorrect. Learned counsel for the appellants has further argued that future interest granted at the rate of 12% is excessive as interest at the rate of 9% is prevalent rate of interest. The grant of interest is the discretion of the Court. The rate of interest of 12% cannot be said to be onerous or penal in nature. In view of the above, I do not find any patent illegality or irregularity in the judgment and decree passed by the Courts below, which may give rise to any substantial question of law for consideration of this Court in second appeal. Dismissed. 07.09.2009 (HEMANT GUPTA) Vimal JUDGE