Jasmer Singh v. Balwinder Singh

Hon'ble Mr. Justice L.N. Mittal Present : Mr. Suresh Goel, Advocate, for the appellant L.N. Mittal, J. (Oral) CM No. 7640.C of 2010 Allowed as prayed for. CM No. 7641.C of 2010 Allowed as prayed for. CM No. 9642.C of 2010 For reasons mentioned in the application which is accompanied by affidavit, delay of 178 days in refiling the appeal is condoned. RSA No. 2544 of 2010 Jasmer Singh defendant has filed instant second appeal having remained unsuccessful in both the courts below. Respondent Balwinder Singh filed suit against appellant for Regular Second Appeal No. 2544 of 2010 (O&M) -2- recovery of Rs 1,24,900/- alleging that the defendant on 13.1.2004 borrowed Rs 80,000/- from the plaintiff and agreed to repay the same with interest @ 1.56% per month and executed pronote and receipt. Defendant did not pay any amount to the plaintiff. The plaintiff accordingly filed suit for recovery of Rs 1,24,900/- i.e. Rs 80,000/- as principal amount and Rs 44,900/- as interest till filing the suit. The defendant in his written statement denied the plaint allegations. The defendant denied having received any amount from the plaintiff and having executed pronote and receipt. The defendant alleged that he is government employee being Math Master in Government Senior Secondary School. Taking advantage of cordial relations between the parties, the plaintiff might have obtained signatures of defendant on some documents purporting to be surety to be given in some government department and the plaintiff might have prepared alleged false and fictitious pronote and receipt. The plaintiff has played fraud on the defendant. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Amloh vide judgment and decree dated 30.10.2008 decreed the plaintiff's suit for recovery of Rs 80,000/- with interest thereon @ 12% per annum since

13.1.2004 the date of loan till date of decree of trial court and future interest @ 6% per annum from the date of decree till recovery. First appeal preferred by the defendant stands dismissed by learned Additional District Judge, Fatehgarh Sahib vide judgment and decree dated 24.7.2009. Feeling aggrieved, the defendant has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the Regular Second Appeal No. 2544 of 2010 (O&M) -3- case file. Learned counsel for the appellant contended that one of the two marginal witnesses of the pronote-cum-receipt was examined in chief as PW2 but was not produced for cross-examination and therefore, his statement cannot be taken into consideration and the plaintiff has failed to examine any other marginal witness of the pronote-cum-receipt. The contention although apparently attractive is devoid of any merit. The plaintiff has himself stepped into witness box and stated about the execution of pronote-cum-receipt by the defendant and advancement of Rs 80,000/- to him. The plaintiff has also examined Takhwinder Singh Virk PW3 who scribed the pronote-cum-receipt. This witness has fully corroborated the plaintiff's case by deposing that the plaintiff had paid Rs 80,000/- to the defendant as loan and the defendant executed aforesaid pronote-cum-receipt after understanding and admitting contents thereof. This witness also stated that he personally knew the defendant. In view of aforesaid testimony of this witness, he can certainly be treated as attesting witness of the pronote-cum-receipt. He personally knew the defendant. Moreover, the defendant in his own hand writing has also written on pronote-cum- receipt 'received Rs 80,000/- only'. The plaintiff has, thus, led sufficient and cogent evidence to prove his case. On the other hand, the defendant himself appeared in the witness box and supported his version but has not led any other evidence. Bald, solitary and self serving statement of defendant is not sufficient to prove alleged fraud. Moreover, the defendant is a teacher and consequently it cannot be said that his signatures might have been obtained by fraud on the pretext of making him a surety for some Regular Second Appeal No. 2544 of 2010 (O&M) -4- government department. In fact, particulars of the alleged fraud have also not been pleaded by the defendant. He has also not pleaded the purpose for which he had to stand surety for the plaintiff and for which department of the government. The defendant has also not pleaded that his signatures had been obtained on the aforesaid pretext. The defendant has rather taken very vague stand that his signatures might have been obtained on the pretext of making him surety and the said documents might have been converted into pronote-cum-receipt. The defendant being teacher would not have signed the printed form of pronote-cum-receipt taking it to be document of being surety in some government department. The defendant in the witness box not only denied his signatures on pronote-cum-receipt but also denied his signatures even on the written statement and vakaltnama. This conduct of the defendant clearly depicts that he stepped into witness box with determination of not speaking the truth. Consequently, his testimony that the plaintiff committed fraud on him cannot be accepted at all. The defendant also stated that he had given a blank cheque to the plaintiff but there is no such plea in the written statement. It is not explained why the defendant gave blank cheque to the plaintiff. Both the courts below on appreciation of evidence have arrived at concurrent finding against the defendant and in favour of the plaintiff and the said finding is not shown to be perverse or illegal in any manner. No question of law much less substantial question of law arises for determination in the instant second appeal. On the other hand, it is a pure finding of fact that the defendant had borrowed Rs 80,000/- from the Regular Second Appeal No. 2544 of 2010 (O&M) -5- plaintiff and executed pronote-cum-receipt for the same. The said finding of fact does not warrant interference in the second appeal. The appeal is without any merit and is accordingly dismissed in limine. July 14, 2010 'dalbir' ( L.N. Mittal ) Judge