R. S. A. No. 4831 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 4831 of 2009 Date of Decision : March 10, 2011 Iqbal Singh .... Appellant Vs. M/s Gian Chand Mangat Rai Commission Agents and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Raj Kumar Kakkar, Advocate for the appellant. * * * L. N. MITTAL, J. (Oral) : Iqbal Singh – defendant no.1, who was partly successful in the trial court, but has been unsuccessful in the lower appellate court, has filed the instant second appeal. Respondent no.1-plaintiff M/s Gian Chand Mangat Rai filed suit against defendant no.1-appellant and proforma respondents no.2 to 5 as defendants no.2 to 5 for recovery of Rs.6,52,225/-, alleging that the plaintiff is Commission Agent. Defendant no.1 had dealings with the plaintiff and had opened mutual current open account with the plaintiff. Between R. S. A. No. 4831 of 2009 2 05.04.1999 and 11.12.2000, defendant no.1 himself and also through defendants no.2 to 5 borrowed various amounts detailed in Annexure A-1 with the plaint. Some amount was deposited by defendant no.1 on different dates between 17.06.1999 and 08.06.2001 by sale of agricultural produce. Ultimately, a sum of Rs.4,28,372.50 paise as principal amount remained due from defendant no.1 to the plaintiff. The plaintiff also claimed Rs.2,22,752.50 as interest thereon at the rate of 2% per month as per prevalent market rate. Defendants no.1 and 3 only contested the suit. They broadly denied the plaint allegations. It was pleaded that they never borrowed any amount from the plaintiff nor opened any account with the plaintiff. It was alleged that defendant no.1 had been taking the amounts of the crops sold by him through the plaintiff. Various other pleas were also raised. Learned Civil Judge (Junior Division), Fazilka, vide judgment and decree dated 21.08.2008, partly decreed the plaintiff's suit for recovery of Rs.1,12,361.40 paise against defendant no.1 only along with interest at the rate of 9% per annum from the date of last transaction i.e. 11.12.2000 till filing of the suit and interest at the rate of 6% per annum from the date of filing of suit till recovery, holding the suit for the remaining principal amount to be time barred. Only plaintiff preferred first appeal against judgment and decree of the trial court, whereas defendant no.1 did not prefer any appeal against judgment and decree of the trial court. R. S. A. No. 4831 of 2009 3 Learned Additional District Judge, Ferozepur, vide judgment and decree dated 13.03.2009, allowed the plaintiff's appeal and decreed the plaintiff's suit for total principal amount of Rs.4,28,372.50 paise along with interest at the rates awarded by the trial court. Feeling aggrieved, defendant no.1 only has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. At the outset, it may be noticed that defendant no.1 did not challenge the judgment and decree of the trial court by filing any first appeal. Consequently, finding of the trial court against defendant no.1 attained finality. The trial court found the entire principal suit amount to be due from defendant no.1 to the plaintiff, but dismissed the plaintiff's suit for part of the said amount being time barred. Plaintiff's partner Hari Om appeared in the witness-box as PW- 2 and plaintiff's Accountant Surinder Kumar appeared as PW-1. Both of them stated according to the plaintiff's version. They brought account books of the plaintiff-firm and proved relevant entries thereof. On the other hand, defendant no.1 himself stepped into the witness-box and broadly stated according to his own version. Defendant no.1 stated in cross-examination that he did not know what had been mentioned in his affidavit of examination-in-chief. Consequently, it may be said that there is practically no evidence led on R. S. A. No. 4831 of 2009 4 behalf of the defendants. In other words, plaintiff's evidence stands unrebutted. Both witnesses of the plaintiff have stated in detail about all the transactions pleaded in the plaint. They have stated about amounts borrowed by defendant no.1 on different dates and also the amounts credited in his account by sale of produce etc. They brought the account books of the plaintiff and proved all the relevant entries, which had been signed by the defendants. Said evidence has been found to be cogent and reliable by both the courts below. As regards limitation, learned counsel for the appellant contended that suit regarding amounts advanced between 05.04.1999 and 18.12.1999 had been rightly held to be time barred by the trial court because acknowledgement Ex.P-31 was not proved as both witnesses of the plaintiff did not state about the said acknowledgement. The contention is completely misconceived. Learned counsel for the appellant has shown affidavits of examination-in-chief of both the witnesses of the plaintiff. They have specifically stated in the said affidavits about all the transactions and relevant entries relating thereto. They have specifically stated about the transaction dated 15.07.2000, for which entry Ex.P-31 was made in the account books of the plaintiff. The said entry is a composite entry relating to certain amounts advanced on that date to defendant no.1 and also relating to acknowledgement of the balance amount of Rs.4,25,000/-, as admitted by defendant no.1 in his own handwriting and under his own signatures. The R. S. A. No. 4831 of 2009 5 said composite entry has been specifically proved by both the witnesses of the plaintiff. Consequently, it cannot be said that the said entry has not been proved or that the plaintiff's witnesses have not referred to the same. Computed from the date of said acknowledgement, the suit filed on 16.07.2003 was well within limitation as Civil Courts remained closed from 16.06.2003 till 15.07.2003 for summer vacation. Even otherwise, there was mutual current open running account of defendant no.1 with the plaintiff. Last transaction in the said account took place on 08.06.2001. Computed from the said date, the suit was filed well within limitation as it was filed on 16.07.2003. The lower appellate court has, therefore, rightly held the suit to be within limitation. 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. Accordingly, the appeal is dismissed in limine. March 10, 2011 ( L. N. MITTAL ) monika JUDGE