RSA No.3872 of 2009 (O&M) -1- ***** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3872 of 2009 (O&M) Date of decision:08.10.2010. Jagdev Singh ...Appellant Versus Gurjant Kaur and another ...Respondents CORAM: HON’B LE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. Ashok Bhardwaj, Advocate, for the appellant. ***** RAKESH KUMAR JAIN, J. (ORAL) The defendant is in second appeal against the judgment and decree of the Courts below by which suit filed by the plaintiff for recovery of `88,400/-, in which `65,000/- was principal amount and `23,400/- was interest, has been decreed. The case set up by the plaintiff is that defendant had borrowed a sum of `65,000/- in cash from him on 10.07.2002 with a stipulation to pay interest at the rate of 1.56% per month and in lieu thereof, he had executed a pronote and receipt. The said pronote and receipt have been proved in the Courts below. In the present appeal, on 19.11.2009, learned counsel for the appellant had argued as under: - “Learned cuonsel inter alia contends that though the pronote was stated to have been executed on 10.07.2002, yet the suit was filed on 21.07.2005, as is clear from the heading of the RSA No.3872 of 2009 (O&M) -2- ***** judgment of the learned Trial Court, whereas in para 18 of the judgment passed by the learned Trial Court, it was mentioned that the suit was field on 09.07.2005. Records be requisitioned for 19.01.2010.” Pursuant to the aforesaid order, records of the Courts below have been summoned. I have examined the record and the statement made by learned counsel for the appellant that the suit is beyond limitation, is found to be incorrect in view of the zimni order passed by the learned Trial Court, which reads as under: - “Present: Counsel for plaitiff Sh. K.S.Sekhon. Suit presented today, during vacation. Let notice of the suit be issued for 21.07.2005. Entrustment be also made on the date fixed. Sd/- CJ(SD)/09.07.2005.” Faced with this situation, learned counsel for the appellant submits that he had a bona fide impression about the filing of the suit on 21.07.2005 as he had gathered this impression from the heading of the judgment of the learned Trial Court. Be that as it may, the first contention of learned counsel for the appellant is not made out from record, therefore, it is rejected. Learned counsel for the appellant has further argued that the plaintiff had no money readily available with him to advance the loan, otherwise had he got the money he would not have cancelled the agreement to sell which was entered into between the parties on 15.05.2002 for the purchase of 6 Bighas of land @ `50,000/- per Bigha. He further submits that even otherwise, as per Section 269(SS) of the Income Tax Act, 1961 [for short “the Act”], no loan or deposit can be taken or advanced otherwise than by account payee cheque or account payee bank draft. However, he very fairly states that there is proviso which lays down that Section 269(SS) shall not apply to any loan or RSA No.3872 of 2009 (O&M) -3- ***** deposit where the person from whom the loan or deposit is taken or accepted and the person by whom the loan or deposit is taken or accepted are both having agricultural income and neither of them has any income chargeable to tax under this Act. In order to support his submission, learned counsel for the appellant has relied upon two decisions of the Supreme Court in the cases of M/s Chamundi Granites Pvt. Ltd. Vs. Deputy Commissioner of Income Tax, Bangalore and another, 2002 AIR (SC) 2188 and Krishna Janardhan Bhat Vs. Dattatraya G. Hegde, 2008(1) RCR(Civil) 695. The argument of learned counsel for the appellant may be attractive but he has failed to prove on record that the amount which had been advanced by the plaintiff to him was not from the agricultural income. If the defendant/appellant was taking this plea that the amount of more than `20,000/-, under Section 269(SS) of the Act, cannot be advanced in cash, he is also required to overcome the explanation clause for which the burden lies upon him. Moreover, this point was not raised before the Courts below, therefore, the defendant is not permitted to take this plea for the first time before this Court because the said plea is a mixed question of facts and law. No other point has been raised. In view of the aforesaid discussion, I do not find any merit in the present appeal and as such, the same is hereby dismissed. No costs. October 08, 2010. (RAKESH KUMAR JAIN) vinod* JUDGE