Shabeg Singh v. L.N.MITTAL, J. (ORAL)

Defendant No.1 Shabeg Singh has filed the instant second appeal. Respondent No.1 plaintiff M/s. Sukhdev Singh & Company, through its proprietor Sukhdev Singh, a commission agent, filed suit against appellant-defendant No.1 and his two sons Piara Singh and Naseeb Singh, defendants No.2 and 3- proforma respondents No.2 and 3, for recovery of ` 1,58,340/- (Rupees one lac fifty eight thousand three hundred and forty only) alleging that the defendants had been selling their produce at the shop of the plaintiff and had been borrowing various amounts from the plaintiff from time to time by signing Bahi entries. Details of the amounts borrowed and also of the amounts of the crops sold by the defendants have been mentioned in the plaint. Ultimately a sum of ` 1,16,425/- (Rupees one lac sixteen thousand four hundred and twenty five) remained due from the defendants to the plaintiff. In addition to it, the plaintiff claimed interest thereon @ 18 % per annum RSA No.4650 of 2010 (O&M) -2- till filing of suit amounting to ` 41,915 (Rupees forty one thousand nine hundred and fifteen only). The plaintiff accordingly sought recover of ` 1,58,340 (Rupees one lac fifty eight thousand three hundred and forty only). Defendants denied the plaint allegations. They alleged that they had no dealing with the plaintiff. They never took any amount from the plaintiff nor signed/thumb marked any entry in account books of the plaintiff. On the contrary, the defendants used to sell their produce at the shop of M/s. Modern Trading Company of which Balbir Singh is proprietor. Plaintiff is close relative of said Balbir Singh. Some times the defendants took advance money from Balbir Singh who obtained their signatures in blank Bahi papers. However defendants stopped selling their crop at the shop of Balbir Singh three years back and possibly the plaintiff has filed this suit by making Bahi entries on the basis of said signatures. Various other pleas were also raised. Learned Civil Judge (Junior Division), Zira vide judgment and decree dated 08.02.2010 dismissed the plaintiff's suit. However, first appeal preferred by the plaintiff has been allowed by learned District Judge, Ferozepur vide judgment and decree dated 26.10.2010 and thereby plaintiff's suit has been decreed for recovery of principal amount of ` 1,16,425 (Rupees one lac sixteen thousand four hundred and twenty five only) with interest thereon @ 9% per annum since the date of last transaction till filing of the suit and pendente lite and future interest @ 6% per annum on the principal amount. Feeling aggrieved, defendant No.1 has filed the instant second appeal. I have heard learned counsel for the appellant and perused the RSA No.4650 of 2010 (O&M) case file. -3- Learned counsel for the appellant contended that self-serving statement of plaintiff coupled with Bahi entries produced by him is not sufficient to prove the case fo the plaintiff. It was contended that even the Muneem/Accountant of the plaintiff, who made the said entries, has not been examined as witness. It was further contended that entries in a account books are not sufficient to burden the defendants with liability in view of Section 34 of the Evidence Act. Reliance in support of this contention has been placed on various judgments namely Jethanand and Company Vs. M/s. Mohan and Company, 2007(4) RCR (Civil) 464; N. Satyanarayana Raju Vs. Chekuri Gopalakrishnaraju, 2004 (2) LJR 843; Naryanan Vs. Indian Handloom Traders, 1999(2) RCR (Civil) 275 and P. Sood & Co. Vs. Peerchand Misrimalji Bhansali, 2005(3) RCR (Civil) 64. I have carefully considered the aforesaid contentions but find no merit therein. The plaintiff has specifically stated that all the Bahi entries in question were made in his presence and all the transactions took place in his presence. He has also stated that the Bahi entries were signed by respective defendants while borrowing various amounts. Amounts of crops sold by the defendants have been credited in the account books. It is not a case based on mere entries in account books. Section 34 of the Evidence Act is very clear that liability cannot be fastened merely on the basis of entries in account books. However, in the instant case, the entries in the account books of the plaintiff have been signed by the defendants. Consequently the said signed entries along with testimony of the plaintiff are sufficient to prove his case. RSA No.4650 of 2010 (O&M) -4- In the aforesaid context, it has to be noticed that defendant No.1 while appearing in the witness box stated that he could not identify his signatures on the aforesaid Bahi entries produced by the plaintiff, on account of weak eye sight. Thus defendant No.1 did not dare to deny his signatures on the said Bahi entries. Consequently plaintiff's testimony that the said Bahi entries had been signed by the defendants stands rebutted. In this context, it is to be noticed with significance that even if defendant No.1 on account of weak eye sight could not identify his signatures, his sons defendants No.2 and 3 could step into the witness box and they could identify the signatures of their father-defendant No.1. They could also state about their own signatures on various Bahi entries. However, defendants No.2 and 3 have not stepped into the witness box without any explanation and therefore, very strong adverse presumption arises against the defendants. In addition to the aforesaid, it is also significant to notice that the defendants' version is that they had dealings with Balbir Singh proprietor of M/s. Modern Trading Company and said Balbir Singh used to obtain their signatures on blank Bahi papers. However, in the witness box, defendant No.1 stated that he never borrowed any amount from Balbir Singh. If it were so, there was no occasion or reason for defendant No.1 or for any other defendant to have affixed their signatures on blank Bahi papers of Balbir Singh. Consequently version of the defendants in this regard cannot be accepted. Learned counsel for the appellant contended that plaintiff admitted that defendants had dealings with M/s. Modern Trading Company, whose proprietor Iqbal Singh is maternal cousin of the RSA No.4650 of 2010 (O&M) -5- plaintiff. This contention also does not help the appellant because the plaintiff again stated that he did not know about dealings of defendants with M/s. Modern Trading Company. Plaintiff further denied suggestion about the said dealings. Moreover it was not even put to plaintiff in cross-examination as to during which period defendants had dealings with M/s. Modern Trading Company. The plaintiff's case is that defendants had dealings with him since 13.10.2000 till April, 2003. It was not even put to the plaintiff in cross-examination that during the same period defendants had dealings with M/s. Modern Trading Company. Moreover, if the defendants had been selling their produce at the shop of M/s. Modern Trading Company, the defendants could very well produce documentary evidence in this regard particularly in the shape of Form J which is issued by the Commission Agent to the farmer selling his crop. The defendants could also produce evidence from market committee in this regard. However no such evidence has been produced by the defendants giving rase to adverse inference against them and making their version unacceptable. For the reasons aforesaid, I find no merit in the instant second appeal. Lower Appellate Court which is the final Court of fact has correctly appreciated the evidence and its finding is supported by cogent reasons. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is devoid of any merit and is accordingly dismissed in limine.

03.12.2010 'raj' (L. N. MITTAL) JUDGE