RSA No. 4738 of 2009 (O&M) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.4738 of 2009 (O&M) Date of decision: 28.11.2011 Chander Mohan ……Appellant Versus Rajesh Kumar Dawar …….Respondent CORAM : HON’BLE MR. JUSTICE A.N. JINDAL Present: Mr. Sandeep Punchhi, Advocate, for the appellant. ***** A.N. Jindal, J. CM No. 13182-C of 2011 In view of the averments mentioned in the application, same is allowed. Regular Second Appeal No.4738 of 2009 (O&M) Rajesh Kumar Dawar-plaintiff-respondent (hereinafter referred as ‘the plaintiff) had preferred a suit for recovery of ` 3,20,000/- against the defendant-appellant (hereinafter referred as ‘the defendant’) and M/s Chander Mohan Sampuran Singh Commission Agents, which was partly decreed by the Civil Judge (Junior Division), Abohar, on 06.08.2008 for a sum of ` 2,50,400/- with interest at the rate of 8% per annum from the date of last transaction i.e. w.e.f. 31.03.2001 till filing of the suit and at the rate of 6% per annum from the date of filing of the suit till actual realization of the decretal amount. The appeal preferred by the defendant was dismissed by the Additional District Judge, Ferozepur, vide judgment dated 21.02.2009. As such, he is in regular second appeal. 1 RSA No. 4738 of 2009 (O&M) Factual background of the case is that defendant No.1-Chander Mohan is the sole proprietor of defendant No.2-M/s Chander Mohan Sampuran Singh Commission Agents, Gandhi Chowk, Abohar and he is running the business of commission agents in grain market at Abohar under the aforesaid name and style of the firm. Defendant No.1 had been inviting the deposits from the public at attractive rate of interest. As such, the plaintiff, at the instigation of defendant No.1, deposited ` 1,00,000/- on 03.09.1996 with defendant No.2 firm through cheque No.631089 dated 03.09.1996. He again deposited a further sum of ` 1,00,000/- with the said firm through cheque No.631094. The defendant got both the said cheques encashed from State Bank of Bikenar and Jaipur, Abohar respectively on the same date of issuance. Defendant No.1 had promised to pay interest at the rate of 18% per annum. As per the statement of account, furnished by the defendants on 30.07.2001 for the year 2000-01, a sum of ` 2,50,400/- were due against defendant No.2-firm. In the said statement of account, interest for the year 2000-01 was not included by defendant No.2. It was also averred that defendant No.2 had maintained its account books regularly in the ordinary course of business. As such, the plaintiff claimed a sum of ` 2,50,400/- on account of principal and ` 69,600/- towards interest i.e. a total sum of ` 3,20,000/- towards the defendants. Upon notice, the defendants put in appearance and contested the cause by filing written statement, wherein they raised various pleas, inter alia, that the suit is hopelessly time barred; plaintiff is a money lender and running his business without any licence under the Punjab Regulation of Money Lending Act and has not obtained the forms ‘B’ and ‘D’. Hence, the suit of the plaintiff, in the absence of forms ‘B’ and ‘D’, is liable to be dismissed. It has been further averred that he has not complied with the 2 RSA No. 4738 of 2009 (O&M) provisions of Punjab Regulation of Money Lending Act, as no notice under the said Act was served upon the defendants. The documents were stated to be forged and fabricated. From the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether a sum of ` 2,50,400/- is due to the plaintiff against the defendant as alleged? OPP 2. Whether suit is within limitation? OPP 3. Whether plaintiff is the money lender without licence, if so, to what effect? OPD 4. Whether suit is bad for non-joinder of Sampuran Singh and other partners of the firm? OPD 5. Whether suit is liable to be dismissed under Order 7 Rule 17 CPC? OPD 6. Whether plaintiff is entitled for interest over thebalance amount, if so, to what rate? OPP 7. Relief.” Both the parties led evidence. The trial Court partly decreed the suit of the plaintiff in the aforesaid terms and the first Appellate Court dismissed the appeal. Arguments heard. Records perused. It has been proved on record from the bank accounts that cheque (Ex.P1) bearing No.631089 dated 03.09.1996 was issued by the plaintiff in the account of Chander Mohan Sampuran Singh, which was credited in the account of Rajesh Kumar. Rajesh Kumar (PW-2) has further proved that the cheque bearing No.631094 issued by him in favour of M/s Chander Mohan Sethi & Sons, was credited in the account of defendant No.2 firm i.e. M/s Chander Mohan Sampuran Singh. Both the Courts below have, thus, rightly held that the cheques have been credited/encashed in the account of defendant-firm. It is also established on the record that Chander Mohan is the sole proprietor of both the firms i.e. M/s Chander Mohan 3 RSA No. 4738 of 2009 (O&M) Sampuran Singh and M/s Chander Mohan Sethi & Sons. It is also established that both the cheques were deposited in the account of M/s Chander Mohan Sampuran Singh. Thus, the firm M/s Chander Mohan Sethi & Sons was not impleaded as party for two reasons; one is that Chander Mohan is the sole proprietor of both the firms and amounts of both the cheques were deposited in the account of M/s Chander Mohan Sampuran Singh with Allahabad Bank. It is also established on the record that defendant had already acknowledged the debt due towards him, vide documents Ex.P5 to Ex.P8. These documents have been admitted by defendant-Chander Mohan during his cross-examination. The documents Ex.P6 to Ex.P8 indicate that the alleged debt has been carried forward. The last statement of account (Ex.P7) dated 28.08.2000 and statement of account (Ex.P8) bears the date as 30.07.2001, whereas the suit was filed on 11.11.2002. Thus, the suit cannot be said to be time barred. Both the Courts below have consistently returned the findings of fact that the defendant- Chander Mohan had received the amount, while inducing the plaintiff that he would be paid lucrative rate of interest. Therefore, such findings of fact cannot be interfered with at this stage. No substantial question of law arises for determination by this Court. Resultantly, finding no merit in the appeal, the same is hereby dismissed. (A.N.Jindal) November 28, 2011 Judge ajp 4