Dismissed

Jarnail Singh v. Sanjiv Kumar

Punjab & Haryana HC18 Aug 2010RSA/1145/2010

Case brief

AI extract

What is this about?

In this second appeal regarding a money recovery suit, the High Court held that the appeal was devoid of merit. The Court distinguished cited precedents where court fees were not paid despite multiple extensions, emphasizing that the plaintiff here fulfilled the requirement of Order 7 Rule 11 (c) CPC by making good the deficiency within the granted time.

What did the court decide?

Appeal dismissed in limine.

Jarnail Singh Vs Sanjiv Kumar — Execution and Attachment | Punjab & Haryana HC (2010)

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R. S. A. No. 1145 of 2010

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

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Case No. : R. S. A. No. 1145 of 2010

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Date of Decision : August 18, 2010

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Jarnail Singh .... Appellant Vs. Sanjiv Kumar .... Respondent

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CORAM : HON'BLE MR. JUSTICE L. N. MITTAL

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Present : Mr. D. D. Bansal, Advocate for the appellant.

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L. N. MITTAL, J. (Oral) :

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Jarnail Singh, defendant having lost in both the courts below, has filed the instant second appeal.

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Sanjiv Kumar – plaintiff-respondent filed suit against defendant-appellant for recovery of Rs.3,01,000/- alleging that the defendant on 26.03.2002 borrowed Rs.1,75,000/- from the plaintiff and executed pronote and receipt for the same and agreed to repay the same with interest thereon @ 2% per month, but the defendant failed to pay the loan amount with interest. The plaintiff accordingly claimed principal amount of Rs.1,75,000/- and interest amount of Rs.1,26,000/- till the filing of the suit.

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R. S. A. No. 1145 of 2010

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The defendant simply denied the plaint allegations. The defendant denied having borrowed any amount from the plaintiff or having executed any pronote or receipt. The defendant also raised some other objections and pleas.

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Learned Civil Judge (Junior Division), Bathinda, vide judgment and decree dated 30.01.2009, decreed the plaintiff's suit for recovery of Rs.1,75,000/- along with interest thereon @ 9% per annum w.e.f. 26.03.2002 – the date of pronote and receipt till date of decree of the trial court and @ 6% per annum from the date of decree of the trial court till recovery. First appeal preferred by the defendant has been dismissed by learned Additional District Judge, Bathinda, vide judgment and decree dated 31.07.2009. Feeling aggrieved, defendant has preferred the instant second appeal.

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I have heard learned counsel for the appellant and perused the case file.

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The plaintiff has led sufficient evidence to prove his case. The plaintiff himself appeared in the witness box and also examined both witnesses of the pronote-cum-receipt. The plaintiff also examined handwriting expert, who opined that the pronote and receipt had been signed by the defendant.

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On the other hand, defendant also appeared in the witness box and stated about his version. Similar statement was made by defendant's

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R. S. A. No. 1145 of 2010

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witness Baljit Singh. However, obviously, Baljit Singh could not depose that the defendant had not taken any loan from the plaintiff because Baljit Singh could not possibly be present all the time with the defendant. On the other hand, there is positive, sufficient and reliable evidence of the plaintiff that the defendant had taken the loan and had executed the pronote and receipt. Both the courts below have appreciated the evidence on record and have recorded concurrent finding to this effect. The said finding is not shown to be perverse or illegal in any manner and therefore, does not warrant interference in second appeal.

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Learned counsel for the appellant vehemently contended that the suit was instituted on 23.03.2005, but court fee was paid on 11.06.2005, and therefore, the plaint should have been rejected or the suit should have been dismissed as barred by limitation as court fee was paid after expiry of limitation period. In support of this contention, learned counsel for the appellant has relied on judgment of Madras High Court in the case of S. V. Arjunaraja vs. P. Vasantha reported as 2006 (1) R.C.R. (Civil) 295 and also on judgment of this Court namely Krishna Kumar Raj Dev vs. Ashwani Kumar reported as 1997 (3) P.L.R. 565 .

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I have carefully considered the aforesaid contention, but find no merit therein.

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Order 7 Rule 11 (c) of the Code of Civil Procedure (in short – CPC) stipulates that the plaint shall be rejected where the plaint is written

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R. S. A. No. 1145 of 2010

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on insufficiently stamped paper, and the plaintiff, on being required by the Court to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so. This provision makes it clear that whenever the plaint is not properly stamped, the Court shall give one opportunity to the plaintiff to supply the requisite stamp paper and the plaint can be rejected only if the plaintiff fails to do so. In the instant case, however, the plaintiff even moved application with the plaint for seeking time to pay the court fee and the trial court passed order requiring the plaintiff to make good the court fee on the next date fixed and the plaintiff accordingly complied with the order and paid the court fee. Consequently Order 7 Rule 11 (c) CPC was duly complied with and therefore, there was no occasion for rejecting the plaint or for dismissing the suit as time barred. Judgments cited by learned counsel for the appellant are completely inapplicable. In the case of S. V. Arjunaraja (supra) , suit on the basis of pronote dated 30.12.1999 was filed on 26.12.2002 with deficiency in court fee. The plaint was returned on 30.12.2002 with endorsement - “deficit Court Fees to be paid. Returned. Time one month”. However, the plaintiff, without complying with the direction of the Court, represented the plaint on 27.01.2003, but it was again returned on 28.01.2003 with endorsement - “previous direction not complied with. Hence, returned. Time one month.”. The plaintiff represented the plaint on 26.02.2003, 26.03.2003, 25.04.2003 and 02.06.2003 without making good the deficiency in court fee and each time,

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R. S. A. No. 1145 of 2010

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the plaint was returned. It was thereafter that deficit court fee was paid and the plaint was represented on 13.06.2003. Thus, in that case, court fee was not paid within one month of the first order dated 30.12.2002, as per requirement of Order 7 Rule 11 (c) CPC. Proviso to Order 7 Rule 11 (c) CPC prohibits granting of extension of time to pay the deficient court fee except on the ground of cause of exceptional nature. However, in the case of S. V. Arjunaraja (supra) , deficit court fee was not paid despite many extensions. In these circumstances, the plaint was held liable to rejection and suit was held liable to be time barred. In the instant case, however, the plaintiff made good the deficiency in court fee within the time granted by the trial court on the first date of hearing and thus, the plaintiff duly complied with the provision of Order 7 Rule 11 (c) CPC, and therefore, there was no occasion for rejecting the plaint and for dismissing the suit as time barred.

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Judgment in the case of Krishna Kumar Raj Dev (supra) is

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also completely distinguishable on facts. In that case, the suit was instituted on 31.07.1990 and it was adjourned to 08.08.1990 for payment of court fee. However, till 04.04.1991, in spite of many adjournments, court fee was not paid. Thereupon, defendant filed application for rejection of the plaint. In these circumstances, the plaint was held liable to be rejected for want of proper court fee. Thus, in that case also, the court fee was not paid in spite of several adjournments, although not more than one adjournment could be

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granted for payment of deficit court fee. No case of exceptional nature was even pleaded by the plaintiff for not paying the court fee pursuant to first order and there were many extensions without any cause. However, in view of proviso to Order 7 Rule 11 (c) CPC, no such extension could be granted, unless cause of exceptional nature was made out. It is thus apparent that the facts in the case of Krishna Kumar Raj Dev (supra) were also completely different and distinguishable from the facts of the instant case.

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Even plain language of Order 7 Rule 11 (c) CPC does not admit of two interpretations. A bare reading of the said provision makes it amply clear that one opportunity is to be granted by the Court to the plaintiff to make good the deficiency in court fee and only if the plaintiff fails to comply with the order, that the plaint can be rejected. In the instant case, however, the plaintiff complied with the order and thus fulfilled the condition of Order 7 Rule 11 (c) CPC. Consequently, contention raised by counsel for the appellant cannot be accepted.

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The appeal is thus found to be devoid of any merit. 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.

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( L. N. MITTAL ) JUDGE

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August 18, 2010

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monika

Jarnail Singh v. Sanjiv Kumar

Case brief

What is this about?

What did the court decide?

Jarnail Singh v. Sanjiv Kumar

Case brief

What is this about?

What did the court decide?

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