RSA No.2540 of 2008 (O&M) 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH RSA No.2540 of 2008 (O&M) Date of Decision: 09.07.2010 Piara Singh ...Appellant Versus Zimidara Commission Agents through LRs .....Respondents 1.Whether Reporter of local papers may be allowed to see the judgment- Yes/No 2.To be referred to the Reporters or not- Yes/No 3. Whether judgment should be reported in the digest-Yes/No CORAM: HON'BLE MR. JUSTICE L.N. MITTAL Present: Mr. Shiv Kumar, Advocate for Mr. N.K. Manchanda, Advocate for the appellant. Mr. Premjit Kalia, Advocate for the respondents. …... L.N. Mittal, J. (Oral) This is the second appeal by defendant Piara Singh who has been unsuccessful in both the Courts below. Respondent Zimidara Commission Agents through its proprietor Sampuran Singh (since deceased and represented by his widow and son as his legal representatives) filed suit against the appellant for rendition of accounts alleging that the defendant- appellant was working as Munim (accountant) on the plaintiff’s shop, plaintiff’s business being as Commission Agent. The defendant withdrew an amount of Rs.55,000/- from the plaintiff’s account in Punjab National Bank, Talwandi Rai Dadu from 4.10.1991 to 8.11.1991. All books of accounts of the plaintiff were being maintained RSA No.2540 of 2008 (O&M) 2 by the defendant and were in his custody. The defendant left the job of the plaintiff, but has not referred accounts to the plaintiff. Accordingly the plaintiff filed suit for rendition of accounts. The defendant inter alia pleaded that he was employed as Panchayat Secretary and thus being Government employee, he could not have worked at the shop of the plaintiff as accountant and never worked as such. The defendant and his five brothers and father-in-law and had been selling crops at the shop of the plaintiff and an amount of Rs.70,000/- was still due to then from the plaintiff out of price of agricultural produce and the plaintiff filed this false suit. The defendant denied having withdrawn any amount from Bank account of plaintiff and also denied other allegations of the plaintiff. Learned Additional Civil Judge (Senior Division.), Ajnala vide judgment and decree dated 16.03.2005 decreed the plaintiff’s suit and passed preliminary decree directing the defendant to refer accounts to the plaintiff and also for recovery of amount, which may be found due on rendition of accounts. First appeal preferred by the defendant has been dismissed by learned Additional District Judge, Amritsar vide judgment and decree dated 04.03.2008. Feeling aggrieved, defendant has preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. Learned counsel for the appellant vehemently contended that there is no document on record to depict that the defendant was working as accountant at the shop of the plaintiff. The contention cannot be accepted. There is evidence of Bank official that the defendant had withdrawn the amount of Rs.55,000/- through various cheques from 4.10.1991 to 8.11.1991 from plaintiff’s Bank account as pleaded by the plaintiff. Learned counsel for the appellant contended that the said amount was paid to the defendant as price of agricultural RSA No.2540 of 2008 (O&M) 3 produce sold by the defendant and his brothers and father-in-law. The contention cannot be accepted because the defendant in the written statement denied having withdrawn any such amount from the Bank account of the plaintiff. The defendant did not plead that the said amount had been paid to him by the plaintiff towards price of agricultural produce as now sought to be contended. The contention is thus completely beyond the pleadings and rather contrary to the pleadings. The contention is also not substantiated by any cogent material on record. If the defendant and his brothers and father-in-law had sold agricultural produce at the shop of the plaintiff, the defendant could very well produce requisite documents to depict the same. The Commission Agent issues J form to the former regarding sale of agricultural produce. However, no such J form has been produced by the defendant in support of his contention. No record of Market Committee has either been produced by the defendant to substantiate his aforesaid plea. It thus becomes manifest that the defendant had withdrawn the aforesaid amount from plaintiff’s Bank account being accountant of the plaintiff. Learned counsel for the appellant also contended that the defendant-appellant was working as Panchayat Secretary and therefore, could not work as accountant at the shop of the plaintiff. This contention cannot be accepted because legally the defendant may not have been entitled to work as accountant at a private shop, but factually he still might be working as accountant at the shop of the plaintiff. There is concurrent finding of fact by both the Courts below on appreciation of evidence that the defendant was working as accountant at the shop of the plaintiff. The said finding cannot be said to perverse or illegal in any manner and does not warrant any interference in second appeal. No substantial question of law arises for determination in the instant second appeal. RSA No.2540 of 2008 (O&M) 4 The appeal is devoid of merit and is accordingly dismissed. (L.N. MITTAL) JUDGE 09.07.2010 sharmila