Regular Second Appeal No. 4826 of 2010 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 4826 of 2010 Date of decision : January 12, 2011 Sukhmander Singh ....Appellant versus M/s Sukhcharan Singh and others ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Jagjeet Singh Dod, Advocate, for the appellant L.N. Mittal, J. (Oral) Defendant no. 2 Sukhmander Singh having largely failed in both the courts below is in second appeal. Respondent no. 1 – plaintiff M/s Sukhcharan Singh Major Singh, Commission Agents filed suit against appellant and his brother Mukhtiar Singh defendant no. 1 (proforma respondent no. 2 herein) for recovery of ` 6,30,000/-. The plaintiff alleged that it is carrying on business as Commission Agent. Its account books are regularly maintained in the course of business. Defendants used to sell their agricultural produce at the shop of the plaintiff. They were having open and current account with the plaintiff. On 31.5.2000, defendant no. 2 after reconciling the account confirmed balance amount of ` 3,65,300/- payable by defendants to Regular Second Appeal No. 4826 of 2010 -2- the plaintiff and executed necessary entry in the plaintiff's account book for the same. Thereafter defendants borrowed some petty amounts in June and July, 2000 from the plaintiff. The defendants have failed to pay the outstanding amount. The plaintiff also claimed interest @ 2% per month being customary rate of interest in the market. Accordingly, the plaintiff filed suit for recovery of ` 6,30,000/- which included principal amount and interest upto filing of suit. Defendants, inter alia, pleaded that defendant no. 1 has no concern with the alleged transactions. The suit was also said to be time barred. Some other objections were also raised. On merits, it was pleaded that account books of the plaintiff are not regularly maintained. It was also denied that defendants were having open and current account with the plaintiff. Defendant no. 2 used to sell the agricultural produce at the shop of the plaintiff. The defendants never obtained any loan from the plaintiff. Account books were got signed at the time of sale of agricultural produce and many times signatures were also obtained on blank account books. Defendant no. 1 never confirmed the balance amount as alleged. Nothing is due from the defendants. Various other pleas were also raised. Learned Civil Judge (Junior Division), Malout vide judgment and decree dated 13.3.2009 decreed the plaintiff's suit for recovery of principal amount of ` 3,66,725/- along with simple interest thereon @ 9% per annum with effect from 4.7.2000 till recovery from both the defendants jointly and severally. Both the defendants preferred first appeal against judgment and decree of the trial court. Learned District Judge, Muktsar vide judgment and decree dated 15.6.2010 modified judgment and decree of Regular Second Appeal No. 4826 of 2010 -3- the trial court and dismissed the plaintiff's suit as against defendant no. 1 Mukhtiar Singh. However, decree against defendant no. 2 – appellant was maintained for principal amount of ` 3,66,725/- but interest rate was modified to 6% per annum. Feeling aggrieved, defendant no. 2 has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Learned counsel for the appellant contended that the suit is time barred because substantial principal amount of ` 3,65,300/- was allegedly confirmed by defendant no. 2 on 31.5.2000 whereas the suit was instituted on 12.6.2003 as mentioned in opening part of judgment and decree of the trial court. However, when similar plea was raised on preceding date of hearing, counsel for the appellant was confronted with observation in paragraph 20 of the judgment of the trial court that the suit had been instituted on 30.5.2003 as also mentioned in decree sheets of both the courts below against column of date of presentation of plaint. Accordingly, counsel for the appellant on the preceding date of hearing prayed for adjournment to inspect the record of the trial court to verify the date of presentation of the plaint in the trial court. Having done so, learned counsel for the appellant contended that the plaint was in fact filed on 30.5.2003 but application was moved with the plaint for granting time for payment of court fee. It is, thus, apparent that the suit was registered on 12.6.2003 after payment of court fee. However, the suit would relate back to 30.5.2003 when the plaint had actually been instituted. Consequently, the suit was well within limitation. Regular Second Appeal No. 4826 of 2010 -4- Learned counsel for the appellant contended that account books of the plaintiff are not maintained regularly as plaintiff's Accountant/Munshi Darshan Ram PW1 could not tell separately the principal amount and interest amount included in the outstanding amount of ` 3,65,300/-. The contention cannot be accepted. Merely on the basis of this circumstance, it cannot be said that account books were not being regularly maintained. On the contrary, defendant no. 2 after settling the accounts confirmed the balance amount of ` 3,65,300/-. Plaintiff's case has been found to be duly proved by both the courts below after appreciating the evidence. Said concurrent finding recorded by the courts below in favour of plaintiff-respondent no. 1 and against defendant no. 2 – appellant is supported by cogent reasons and is not shown to be perverse or illegal so as to warrant interference in second appeal. Learned counsel for the appellant also contended that admittedly defendant no. 2 had been selling his agricultural produce twice a year at the shop of the plaintiff but amount of the said crop has not been credited or adjusted against outstanding amount. This contention is also devoid of merit because there is no material on record to depict that after confirming the balance amount of ` 3,65,300/- on 31.5.2000, defendant no. 2 had sold any produce thereafter through the plaintiff. On the contrary, it appears that after confirming the said balance amount and after borrowing some petty amounts thereafter till 3.7.2000, defendants did not sell any agricultural produce at the shop of the plaintiff. On the contrary, plaintiff's Partner and Accountant who appeared as witnesses along with the account books could be cross-examined on this aspect. Regular Second Appeal No. 4826 of 2010 -5- For the reasons aforesaid, I find no merit in the instant second appeal. No question of law much less substantial question of law arises for determination in the instant second appeal. On the contrary, fate of the lis depends on the finding of fact. Lower appellate court is final court of fact. Accordingly, the appeal is dismissed in limine. ( L.N. Mittal ) January 12, 2011 Judge 'dalbir'