Kuldeep Singh & Ors. v. Madan Lal

CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present:- Mr. R.N.Lohan, Advocate, for the appellants. Mr. Amit Kumar Jain, Advocate, for the respondents. Gurdev Singh, J (oral) The appellants, as legal representatives of defendent have preferred this second appeal against the judgment and decree dated 7.5.2007 passed by District Judge, Jind, vide which he accepted the appeal filed by plaintiff/respondent – Madan Lal. The plaintiff filed suit for recovery of Rs.3 lakh; Rs.2 lakh as principal amount and Rs.1 lakh as interest thereon, on the basis of the pronote duly executed in his favour by the defendant on 25.11.1997, after receiving a sum of Rs.2 lakh as loan. According to him, the contents of the pronote and receipt were duly read over to the defendant and he put his thumb mark over them. In spite of the demand having been made, the defendant refused to repay the loan amount and also failed to pay the interest thereon, which was to be paid @Rs.2 % per month, as per the contents of the pronote and receipt. R.S.A. No.2681 of 2007 (O&M) -2- The suit of the plaintiff was contested by the defendant. In his written statement, he denied the contentions of the plaintiff. He came out with the plea that he used to sell agricultrual produce at the shop of the plaintiff, who was doing the business of a commission agent. During those transactions, the plaintiff had obtained his thumb impressions on a number of papers. He entertained suspicions regarding the accounts being maintained by the plaintiff, who did not render those accounts in spite of the repeated demands. He accompanied by Jora Singh went to the shop of the plaintiff to clear the accounts and a writting was given to him by the plaintiff that nothing was due from him. Even one forged pronote was returned to him. However, the origianl pronote was kept by the plaintiff, on the basis of which he filed the false suit. The plaintiff has no locus-standi for filing the suit. In replication filed to the written statement, the plaintiff controverted the averments made therein and reasserted his averments made in the plaint. On the pleadings of the parties, the following issues were framed by the learned trial Court:-

1. Whether the plaintiff is entitled to recover Rs.3,00,000/- from the defendant as alleged?OPP

2. Whether the plaintiff is entitled to interest. If so to what effect?OPP.

3. Whether the plaintiff has no locus standi to file the present suit?OPD

4. Whether the plaintiff has concealed the true facts from the Court?OPD R.S.A. No.2681 of 2007 (O&M) -3-

5. Whether the suit of the plaintiff is barred by limitation?OPD

6. Whether the pronote and receipt are forged and fictitious?OPD

7. Whether the suit of the plaintiff is bad for want of notice?OPD

8. Relief. To succeed in the suit, the plaintiff examined himself as PW-1, Dharambir (PW2) and Dr. Inderjeet Singh, Handwriting Expert (PW3). On the other hand the defendant entered witness box as DW-2 and examined Jora Singh (DW1). After going through the evidence so produced on the record and hearing learned counsel for the parties, the trial Court decided issues No. 1 to 5 against the plaintiff and issues No. 6 and 7 in his favour and resultantly, dismissed the suit. Against that judgement and decree, the plaintiff preferred an appeal which was accepted by the First Appellate Court, vide afore-said judgment and decree and the suit was decreed. I have heard learned counsel for both the sides. It has been submitted by learned counsel for the defendant that during the cross-examination of Dharmvir PW-2, the receipt Mark-'A' alleged to have been scribed by him was proved and he admitted the issuance of that receipt in favour of the defendant. The learned trial Court, on the basis of that receipt, recorded a correct finding in favour of the defendant that all the dues were cleared by the defendant and nothing was due from him. In fact, the plaintiff and his son had been running the business of commission agents and the defendant used to visit their shop for the sale of his agricultural produce. During the period agricultrual produce was being sold through them, the plaintiff obtained his thumb impressions R.S.A. No.2681 of 2007 (O&M) -4- on blank form of the pronote and other documents and the said pronote and receipt have been fabricated. The First Appellate Court committed an illegality while upsetting the well reasonsed finding of the trial Court that the receipt mark 'A' was duly executed by the plaintiff in which it was specifically mentioned that nothing was due from the defendant. Thus, the appeal is liable to be accepted and the suit of the plaintiff is liable to be dismissed. On the other hand, it has been submitted by learned counsel for the plaintiff that the shop of the commission agent was being run by the son of the plaintiff – Dharambir and the plaintiff had nothing to do with this business. However, he used to sit in that shop and the defendant came to him with a request for advancing a sum of Rs.2 lakh. Plaintiff advanced that amount to him regarding which the pronote and receipt were executed and which were duly proved by him. Writing mark 'A' was given by plaintiff regarding the sale of agricultral produce by the defendant at his shop. That receipt has nothing to do with the present transanction or the pronote and the correct finding was recorded by the appellate Court. In view of these submissions of learned counsel for the parties, the following substantial question of law arise in the present appeal:- "whether the finding recorded by the first appellate Court that the receipt Mark 'A' was an independent transaction different from that of pronote and receipt, is perverse?" On the basis of the evidence produced by the parties, this question is to be answered against the defendant. No such receipt was put to the plaintiff (PW1), during this cross-examination. However, it was suggested R.S.A. No.2681 of 2007 (O&M) -5- to him that after the settlement of accounts, the defendant had secured the receipt from his son and that thereafter the pronote was fabricated. That suggestion was duly denied by him. It is very much apparent from his statement and statement of his son Dharambir that the shop of the commission agent was being run by the later and the plaintiff has nothing to do with the same. The defendant also proved on record writing mark 'B'. As per that document Rs.1,56,000/- was due from him to Dharambir. Receipt Mark 'A' was regarding the clearance of the accounts of that Dharambir. It is very much clear that those transactions were independent of the present transaction of loan. The evidence produced by the plaintiff regarding the due execution of pronote Ex.P/1 and receipt Ex. P/2 by defendant, could not be assailed at the time of arguments. Even the defendent DW-2 admitted that he had put his thum impression on the pronote and receipts. When the receipt mark 'A' was an independent transaction, it cannot be said that finding recorded by the First Appellate Court to that effect is preverse. There is not merit in this appeal and the same hereby dismissed while upholding the judgment and decree passed by the First Appellat Court. September 28, 2010 tripti (Gurdev Singh) Judge