Held that no substantial question of law arose as Courts below concurred in findings that the debt was admitted, execution of documents proved, and excessive interest reduced to 6%.
The regular second appeal is dismissed in limine and the judgments and decrees of the Courts below are upheld.
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.
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RSA No. 2620 of 2011 (O & M)
THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
RSA No. 2620 of 2011 (O & M) DATE OF DECISION: March 05, 2012
Rawat Singh
.........APPELLANT(S)
VERSUS
Ghisa Ram
......RESPONDENT(S)
CORAM:HON'BLE MR. JUSTICE G.S. SANDHAWALIA
Present: Mr. Sandeep Kumar Yadav, Advocate, for the applicant-appellant.
G.S. SANDHAWALIA, J.
C.M. No. 7191-C of 2011
Application filed under Section 151 CPC seeking exemption from filing certified copy of judgment and decree dated 02.09.2005 passed by the trial Court is allowed, in view of the averments made in the application, which are duly supported by an affidavit.
C.M. No. 7192-C of 2011 in/and RSA No. 2620 of 2011
RSA No. 2620 of 2011 (O & M)
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explained to the defendant, who after considering the same to be correct, had appended his thumb impression on the bahi of the plaintiff. The rate of interest was agreed to be 2 per hundred per month and it was agreed that the loan amount shall be paid upto 15.05.1999. On non-payment of the loan amount, the cause of action arose to the plaintiff and thus the suit was filed for recovery of 75,000 alongwith interest pendente lite and future interest @ `2 per hundred per month.
15,000. The plaintiff had taken the thumb impression of the defendant in the absence of the son of the defendant and after 25 days, the plaintiff had got transferred the buffalow in question to his relative in lieu of 15,500 and the plaintiff had charged 300 as interest on the amount of 15,000 and gave 200 to the defendant. It was alleged that the plaintiff in collusion with Badlu had prepared the bahi writing on the basis of fraud and misrepresentation. The defendant further averred that his thumb impression was taken when his son was not present at the house and on his return, he had narrated this fact to his son. The plaintiff was asked about the thumb impression but the plaintiff did not show the bahi writing. It was further pleaded that the son of the defendant had taken 25,000 from the plaintiff and executed a pronote in the year 1996 but the plaintiff had taken two separate pronotes on 20.05.1999 and the son of the defendant had borrowed 60,000 from Bhikha Ram and had returned the loan amount. He also paid 28 quintals of wheat seeds and gave the same to the plaintiff on 24.05.1999 @ 600 per quintal. In the village Panchayat convened in July 1999, the plaintiff did not attend the same and was called again and was asked toRSA No. 2620 of 2011 (O & M)
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make in the writing about the repayment of loan made by Ram Narain, the son of the defendant, but he refused to do so. Accordingly, it was pleaded that the suit was based on forged documents and nothing was due towards the defendant.
2. Whether the writing dated 15.05.1998 is wrong against law and facts? OPD.
3. Whether the plaintiff has no locus standi to file the present suit? OPD.
4. Whether the present suit is not maintainable
5. Whether the suit is time barred? OPD
6. Relief.”
RSA No. 2620 of 2011 (O & M)
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thumb impression fixed on the written statement and taken on 01.03.2003 was similar to the one on the bahi and 27 points had been matched in specimen thumb impression and disputed thumb impression. Accordingly, the trial Court held that the execution of the bahi was proved and the defendant himself had admitted that he had put thumb impression on some blank papers and, therefore, the fact that the Bahi did not bear the signatures of the Scribe Badlu did not make any difference. The defendant had failed to examine any handwriting expert to disprove the fact that Exs. P-1 and P-2 had not been written by Badlu and merely because PW-2 Magan Singh, one of the attesting witnesses, was not completely supporting the case of the plaintiff, the Court was not powerless to declare the execution of the document as valid. The contents of the Bahi were perused to hold that the defendant had borrowed 38,400 in cash from the plaintiff on interest @ 2 per month. It was noted that interest of 9,216 had been added from 15.05.1996 to 15.05.1997 and on this, further interest to the tune of 11,427.84 had been added from 15.05.1997 to 15.05.1998 and relaxation of 43.84 had been given and 59,000 was shown to be due towards the defendant. The acknowledgement of the defendant on 15.05.1998 on Ex. P- 2 was noticed and that the money was borrowed for payment of bank loan and for household expenses. The defendant had aggreed to pay this amount after one year i.e. on 15.05.1999 and this writing had been scribed in the presence of Jeet Ram and M.S. Tanwar and the thumb impression of the defendant was there and it was acknowledgment of a previous debt. The case of the defendant was also taken into consideration that the son of the defendant had borrowed 25,000 from the plaintiff for which a pronote was reduced in writing and the defendant's case that he has paid 60,000 and 28
RSA No. 2620 of 2011 (O & M)
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quintal wheat seeds in lieu of payment of money and that the defendant had taken a buffalow from the plaintiff in lieu of 15,500 which was given to the relative in lieu of 15,500 and the defendant had received 300 as interest for one month and no other transaction had taken place. The Court noticed that this fact was not corroborated and in execution, the defendant did not know the day, month and year in which he returned the buffalow and no other evidence had been led to corroborate this fact and the mere statement was not sufficient to prove that there was any such transaction. Accordingly, the defence put up by the defendant was rejected on the ground that no person would repay 77,000 for a loan raised by his son on 15.05.1994 which was taken for 25,000 and repaid after 2 years. On the issue of rate of interest, it was held that the rate of interest at 2 per month was highly excessive and would create great hardship to the defendant and, therefore, the plaintiff was entitled to interest pendente lite and future interest @ 6% per annum and accordingly the suit was decreed vide judgment and decree dated 02.09.2005.
RSA No. 2620 of 2011 (O & M)
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attesting witnesses have proved the bahi writing and the scribe has also been examined apart from the statement of the plaintiff himself. The Courts below have both concurrently examined that the amount of 38,400 had been borrowed and the interest element was being mentioned and added on yearly basis and the amount had been borrowed for payment of bank loan and household expenses. The allegations of fraud, which were raised in defence, have not been accepted as the onus was upon the defendant and it has been held that he has failed to establish the same beyond reasonable doubt and the act and conduct of the defendant of putting his thumb impressions was highly improbable. The defence taken that the amount taken by his son Ram Narain had been repaid by taking the amount from Bhikha Ram DW-2 was disbelieved as Bhikha Ram was his relative and it has been found unbelievable that a person would pay 77,000 for a loan of 25,000. The amount was calculated on the basis of 60,000 and 17,000 for 28 quintals of wheat. The said findings are findings of fact which have been recorded by the Courts below and in the facts and circumstances as summarized above, no substantial question of law arises for consideration of this Court. The trial Court has also granted 6% interest per annum from the date of filing of the suit and for future against the claim of 2 per month. Thus, in view of the concurrent findings of the Courts below, no fault can be found with the well reasoned judgments and the present regular second appeal is dismissed in limine and the judgments and decrees of the Courts below are hereby upheld.
(G.S. SANDHAWALIA) JUDGE
05.03.2012 shivani
Rawat Singh
Ghisa Ram
G.S. SANDHAWALIA
As recorded by the court registry
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