This second appeal regarding a suit for money recovery was dismissed. The High Court held that the lower courts' findings were based on cogent evidence and attesting witnesses and did not warrant interference as no question of law arose.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
REGULAR SECOND APPEAL No.4379 OF 2009
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
RSA No.4379 of 2009 DATE OF DECISION: 11th MARCH, 2011
Ran Singh
.... Appellant
Versus
Lilawati
.... Respondent
CORAM :- HON'BLE MR. JUSTICE L. N. MITTAL.
PRESENT: Mr. Bhag Singh, Advocate for the appellant.
L.N. MITTAL, J. (ORAL)
Defendant Ran Singh having lost in both the courts below has filed the instant second appeal.
Respondent-plaintiff Lilawati filed suit against defendantappellant for recovery of Rs.81,700/- alleging that the defendant on 24.08.2002 borrowed Rs.47,500/- from the plaintiff and executed pronote and receipt for the same and agreed to repay it with interest @ 2 % per annum. However, the defendant failed to pay the loan amount or the interest amount inspite of demands including demand by legal notice. Accordingly, plaintiff claimed Rs.47,500/- as principal amount and Rs.34,200/- as interest amount.
The defendant inter alia pleaded that he had in fact borrowed Rs.1,50,000/- from the plaintiff and in lieu thereof, the plaintiff obtained thumb impressions and signatures of the defendant on blank stamp papers and blank pronote-cum-receipt. The defendant pleaded that he has repaid the said amount but the blank thumb marked and signed stamp papers and pronotecum-receipt were not returned by the plaintiff and her husband. They have misused the same. The plaintiff converted the blank pronote and receipt into
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REGULAR SECOND APPEAL No.4379 OF 2009
impugned pronote and receipt and has filed the instant suit whereas plaintiff's husband has filed suit for specific performance of agreement by converting the blank stamp papers into agreement. Various other pleas were also raised.
Learned Civil Judge (Junior Division), Kurukshetra vide judgment and decree dated 10.12.2007 decreed the plaintiff's suit. First appeal preferred by the defendant has been dismissed by learned Additional District Judge, Kurukshetra vide judgment and decree dated 01.05.2009. Feeling aggrieved, defendant has preferred the instant second appeal.
I have heard learned counsel for the appellant and perused the
case file.
Learned counsel for the appellant vehemently contended that the plaintiff herein while appearing as witness in the other suit filed by plaintiff's husband against the defendant for specific performance of the agreement stated that she was not present at the time of the agreement. It was pointed out that the agreement and the impugned pronote-cum-receipt were executed on the same date, allegedly scribed by the same deed writer and it would depict that plaintiff was not present at the time of execution of the impugned pronotecum-receipt. The contention cannot be accepted. The plaintiff might not have been present when the agreement in question was allegedly executed but the plaintiff has nowhere stated that she was not present even when the impugned pronote-cum-receipt was executed. Consequently, statement made by the plaintiff in the other suit is of no help to the appellant in the instant case.
Learned counsel for the appellant vehemently contended that on the same day, the defendant allegedly agreed to sell his land measuring 10 Kanals 15 Marlas to plaintiff's husband at the rate of Rs.3,00,000/- per acre and received Rs.1,50,000/- as earnest money and, therefore, there was no
REGULAR SECOND APPEAL No.4379 OF 2009
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occasion for the defendant to have also borrowed Rs.47,500/- from the plaintiff on the same day while the defendant was also to receive more than Rs.2,00,000/- as balance sale price for the land. The contention cannot be accepted. Perusal of the agreement in question, as shown by the counsel for the appellant, reveals that sale deed was to be executed upto 23.08.2003 i.e. after one year. Plaintiff's husband (prospective vendee of the land) paid Rs.1,50,000/- as earnest money and he was to pay the remaining sale price at the time of sale deed and not at the time of agreement. Consequently if the defendant also needed further amount of Rs.47,500/- and the plaintiff advanced the same to the defendant, it cannot be said to be unnatural or improbable.
The plaintiff has examined two attesting witnesses of the pronotecum-receipt i.e. Rattan Lal, Member Panchyat and Som Nath, Lambardar. Both of them have stated according to plaintiff's version. The plaintiff herself also stepped into the witness box and deposed about her case. The said evidence practically stands unrebutted. Self-serving statement of defendant is not sufficient to rebut the aforesaid cogent evidence led by the plaintiff. On the contrary, the defendant by his pleading in the written statement impliedly admitted his thumb impressions as well as signatures on the impugned pronote-cum-receipt. Both attesting witnesses of pronote-cum-receipt examined by the plaintiff belong to the village of the parties. They are Lambardar and Member Panchayat respectively. Consequently, there is no reason to doubt their statements. Their testimony could not be impeached in cross-examination. They have fully supported the plaintiff's case.
Learned counsel for the appellant contended that names of Som Nath and Rattan Lal witnesses were not typed on the agreement although the
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REGULAR SECOND APPEAL No.4379 OF 2009
agreement was typed and names of two other witnesses Nathi Ram and Ravi Parkash were typed. However, this circumstance has no bearing on the instant case relating to pronote-cum-receipt. I am not making any further comment on the aforesaid contention lest it may prejudice either side in the other suit relating to specific performance of the agreement in question.
Learned counsel for the appellant also submitted that Ravi Parkash and Lachman Dass who are also witnesses of the impugned pronotecum-receipt as well as the agreement are relatives of the plaintiff as admitted by her. However, the plaintiff has not examined the said witnesses as her witnesses in the instant case in support of her version. On the contrary, the plaintiff has examined two other attesting witnesses of the pronote-cumreceipt i.e. Som Nath, Lambardar and Rattan Lal, Member Panchayat. Both of them are independent witnesses and also belong to the village of the parties. They are, therefore, natural and reliable witnesses.
There is concurrent finding recorded by both the courts below in favour of plaintiff-respondent. The said finding is based on proper appreciation of evidence and is supported by cogent reasons recorded by the courts below. The said finding does not warrant interference in instant second appeal because it is not shown to be perverse or illegal nor it is based on misreading or mis-appreciation of evidence. 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.
(L. N. MITTAL) JUDGE
11th March, 2011 'raj'
1 issue framed by the court
Whether the concurrent findings of fact recorded by courts below favoring the plaintiff, based on cogent evidence and attesting witnesses, warrant interference in this second appeal.
Ran Singh
Lilawati
L. N. Mittal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
