Regular Second Appeal No. 1413 of 2010 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 1413 of 2010 Date of decision : April 01, 2010 Darshan Singh ....Appellant versus Amar Nath ....Respondent Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. A.S. Manaise, Advocate, for the appellant L.N. Mittal, J. (Oral) Darshan Singh defendant after having remained unsuccessful in both the courts below has preferred the instant second appeal. Respondent Amar Nath filed suit against the defendant- appellant for recovery of Rs 47,300/- alleging that the defendant borrowed Rs 27,500/- from the plaintiff on 15.8.1998 and executed pronote and receipt for the same and agreed to repay the same with interest thereon @ 2% per month, but did not repay any amount. Accordingly, principal amount of Rs 27,500/- and interest amount of Rs 19,800/- at the aforesaid rate i.e. Rs 47,300/- was due from the defendant. The defendant, however, pleaded that his father had dealing with the plaintiff who is a Commission Agent. Defendant's father owed Rs Regular Second Appeal No. 1413 of 2010 -2- 1,02,430/- and some interest amount thereon to the plaintiff. After death of defendant's father, the aforesaid liability was shared by four sons i.e. by the defendant and his three brothers and accordingly liability of the share of defendant was Rs 27,500/- for which signatures were obtained by the plaintiff in his Bahi. The defendant, however, denied having borrowed any amount from the plaintiff and having executed pronote and receipt. The defendant also pleaded that he paid Rs 21,000/- in cash to the plaintiff and also sold Narma cotton crop at the shop of the plaintiff and thereby cleared the outstanding amount. Learned Civil Judge (Junior Division), Fazilka vide judgment and decree dated 24.4.2008 partly decreed the suit of the plaintiff for recovery of Rs 27,500/- (principal amount) along with interest thereon at the rate of 9% per annum with effect from 15.8.1998, the date of pronote and receipt till filing of the suit and at the rate of 6% per annum from the date of filing of suit till recovery. First appeal preferred by the defendant stands dismissed by learned District Judge, Ferozepur vide judgment and decree dated 15.12.2009. Feeling aggrieved, the defendant has preferred the instant appeal. I have heard learned counsel for the appellant and perused the case file. The plaintiff proved his case by himself stepping into witness box as PW1 and by examining Ravi Sharma PW2 attesting witness of pronote-cum-receipt. On the other hand, the defendant appeared as DW1 and tendered his affidavit of examination-in-chief but thereafter did not appear Regular Second Appeal No. 1413 of 2010 -3- for cross-examination and therefore, examination-in-chief of the defendant was excluded from consideration. The defendant has admitted his liability to pay Rs 27,500/- to the plaintiff although on different count. The defendant alleged that he had discharged the said liability by paying Rs 21,000/- to the plaintiff and by selling some crop on his shop. There is, however, no evidence to substantiate this plea raised by the defendant. As noticed hereinabove, the defendant himself made statement in examination-in-chief but did not appear for his cross-examination. Learned counsel for the appellant contended that execution of the pronote and receipt by the defendant is not proved. The contention cannot be accepted because the plaintiff himself has proved the same and also one attesting witness of the pronote-cum-receipt has been examined by the plaintiff to prove it. Learned counsel for the appellant contended that the plaintiff stated that the defendant had signed the pronote-cum-receipt in Gurmukhi script but pronote-cum-receipt purports to bear signatures of defendant in English language. The plaintiff's whole case could not be discarded or thrown away merely on this solitary discrepancy because suit itself was filed three years after the execution of pronote-cum-receipt and the plaintiff stepped into witness box on 4.10.2005 as stated by learned counsel for the appellant. Thus, the plaintiff stepped into witness box more than seven years after the execution of pronote and receipt. So, the aforesaid discrepancy cannot be attached undue significance. Moreover, both the courts below have appreciated the evidence and arrived at concurrent finding that the execution of pronote and receipt stands proved. Regular Second Appeal No. 1413 of 2010 -4- Learned counsel for the appellant also contended that the defendant was on duty as Home Guard on 15.8.1998 the date of execution of pronote and receipt but additional evidence sought to be produced to prove the same has not been allowed by the lower appellate court. This contention also does not help the appellant because no such plea has even been raised in the written statement and therefore, evidence to this effect could not be allowed to be led and that too by way of additional evidence in appeal. In addition to the aforesaid, the defendant himself has admitted his liability to pay Rs 27,500/- to the plaintiff and therefore, the aforesaid contentions further pale into insignificance because the liability to pay disputed amount stands admitted by the defendant in the written statement. As noticed hereinabove, both the courts have appreciated the evidence and arrived at concurrent finding. The said finding is not shown to be perverse or illegal in any manner so as to warrant interference in second appeal. No question of law much less substantial question of law arises for determination in the instant second appeal. The appeal is completely devoid of any substance and is accordingly dismissed in limine. ( L.N. Mittal ) April 01, 2010 Judge 'tiwana'