The High Court dismissed an appeal against decrees in a recovery suit. The appellant failed to prove repayment despite alleging the principal was discharged against a higher written instrument. No error of law was found.
Instant appeal stands dismissed, no order as to costs.
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.
RSA No.3112 of 2013
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
RSA No.3112 of 2013 Date of Decision : 4.3.2014
Surjit Singh
.....Appellant
Vs.
Sohan Lal ......Respondent
CORAM : HON'BLE MR. JUSTICE RAMESHWAR SINGH MALIK
Present : Mr. B.D. Sharma, Advocate for the appellant.
RAMESHWAR SINGH MALIK, J
Present appeal, at the instance of defendant, is directed against the concurrent findings of facts recorded by both the learned courts below, whereby suit for recovery filed by the plaintiff-respondent, was decreed.
Briefly stated, facts of the present case are that Sohan Lal, plaintiff filed suit against Surjit Singh, defendant for recovery of Rs.2,70,000/(Rs.1,50,000/- as principal amount and Rs.1,20,000/- as interest). It was stated that in July 2002, the defendant, who was a Travel Agent met the plaintiff alongwith his wife and told that he would send the son of the plaintiff to Italy and got Rs.1,70,000/- from him. However, the defendant did not return the amount nor he sent the son of the plaintiff abroad. Then on 16.12.2003, the defendant in order to discharge the legally recoverable debt executed a pronote for Rs.1,70,000/- and the receipt in the presence of the marginal witnesses. It was further stated that the defendant agreed to pay the amount and interest @ 2% per month. It was further stated that Rs.20,000/- were returned by the
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defendant on 25.1.2006, but the remaining amount was not returned. Hence, the suit.
Upon notice, defendant appeared and contested the suit. In his written statement, the defendant raised preliminary objections that the suit is not maintainable. The plaintiff has not come to the court with clean hands and has suppressed the true and material facts from the court. It is further stated that in fact, the plaintiff has already received full and final payment of Rs.85,000/- alongwith interest from the defendant. The original pronote dated 16.12.2003, which the plaintiff took as security from the defendant was not returned to the defendant after receiving the payment with the plea that the same was misplaced. Lateron, in order to black mail and to grab the money from the defendant, the present suit has been filed against the answering defendant. Even in the compromise, the plaintiff alongwith Sachdev Atwal, who is the relation of the plaintiff admitted that the plaintiff has received full and final payment of Rs.85,000/- from the defendant but the amount of Rs.1,70,000/- was filled in the pronote as per security purpose and now nothing is due against the defendant. It is further stated that the pronote and receipt were got executed from the defendant amounting to Rs.1,70,000/- i.e. double of the amount received by the defendant. When the defendant before signing those documents inquired from the plaintiff and Sachdev Atwal, why double amount has been mentioned in these documents, then plaintiff as well as Sachdev Atwal told the defendant that it is was only a security purpose but the defendant has to return only Rs.85,000/- with interest @ 2% p.m. Thereafter, the defendant has been paying the monthly interest regularly. The entire amount has been returned and nothing was due against the defendant. The answering defendant denied the remaining averments made in the plaint and
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prayed for dismissal of the samne.
On completion of pleadings of the parties, the learned trial court framed the following issues :
With a view to substantiate their respective stands taken, both the parties led their evidence. After hearing both the parties and going through the evidence brought on record, the learned trial court came to the conclusion that the plaintiff has duly proved his case. Consequently, the suit was decreed, holding the plaintiff entitled for recovery of Rs.98,900/- with interest @ 9% p.a. from the date of loan till the filing of the suit and with future interest @ 6% p.a., vide impugned judgement and decree dated 20.9.2011. Both the parties filed their first appeals. Plaintiff was claiming higher rate of interest as agreed between the parties, whereas defendant-appellant was claiming that he was not liable to pay the amount sought to be recovered from him. However, both the appeals came to be dismissed by the learned Additional District Judge, Jalandhar, vide impugned judgement and decree dated 2.3.2012. Hence, this appeal at the hands of the defendants.
Learned counsel for the appellant submits that plaintiff has failed to prove his case. There was no sufficient evidence brought on record to establish the liability of the defendant-appellant to pay the amount sought to be recovered from him. In such a situation, the suit was liable to be dismissed. However, since the learned courts below have failed to appreciate the true facts of the case, as well as the evidence available on the record, the impugned
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judgements and decrees were not sustainable in law. He further submits that the loan amount availed by the defendant-appellant had already been repaid to the plaintiff-respondent and he has duly proved his case on issue no.1. However, since the learned courts below misdirected themselves while not appreciating the evidence in the correct perspective, the impugned judgements were not sustainable in law. He prays for setting aside the impugned judgements and decrees, by allowing the present appeal.
Having heard the learned counsel for the parties at considerable length, after careful perusal of the record of the case and giving thoughtful consideration to the contentions raised, this court is of the considered opinion that in view of the fact situation of the present case, no interference is warranted at the hands of this court, while exercising its appellate jurisdiction under Section 100 of the Code of Civil Procedure (`CPC' for short). To say so, reasons are more than one, which are being recorded hereinafter.
It is a matter of record and not in dispute that the defendantappellant was running the business of a travel agent. He admits that he availed the loan amount from the plaintiff. However, he claimed that he had already repaid the loan amount. Since defendant was claiming that he had repaid the loan amount, onus to prove issue no.1 was rightly put on the defendant. In order to discharge his onus, defendant could not lead sufficient and cogent evidence. Plaintiff Sohan Lal appeared as PW-1 and deposed before the court to prove his case as per the pleadings. He also proved the pronote and receipt Ex.P-1 and Ex.P-2. Endorsement on the back of pronote was proved as Ex.P-3. Copies of Identity Cards were proved as Exs.P-4 and P-5. On the other hand, defendant-appellant appeared as DW-1, however, except his self serving statement, there was hardly any evidence brought by defendant-appellant to
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discharge his onus on issue no.1. DW-3 Sukhchain Singh produced by the defendant-appellant did not appear for his cross-examination, for the reason best known to the defendant. Adverse inference was liable to be drawn against the defendant for not producing his witness for cross-examination. Having said that, this court feels no hesitation to conclude that the learned courts below committed no error of law, while passing the impugned judgements and decrees and the same deserve to be upheld.
While appearing as his own witness as DW-1, defendant-appellant admitted in his cross-examination that FIR No.6 dated 15.1.2004 was pending against him under Section 420 IPC. Certified copy of FIR was Ex.P-1. He also admitted that there was an allegation against him that he was a travel agent. In fact, defendant-appellant was trying to run away from his financial liability, which has been duly established against him on the record of the case. There was cogent, sufficient and well convincing evidence produced by the plaintiff, which duly proves his case. Thus, the suit was rightly decreed by the learned courts below and the impugned judgements and decrees deserve to be upheld, for this reason also.
Before arriving at a judicious conclusion, learned first appellate court recorded its own cogent findings in para 14 of the impugned judgement and the same read as under :-
“14. The defendant examined DW-1 Surjit Singh himself, who tendered into evidence his affidavit Ex.DA in which he mainly deposed the same facts as stated in the written statement. In cross-examination, he admitted that a case under Section 420 IPC, vide FIR No.6 dated 15.1.2004 is pending against him, the certified copy of which is Ex.P1.
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He also admitted that in the case, there is allegation against him that he is a travel agent. He next stated that he has produced one receipt regarding the last payment of Rs.65,000/- made to Sohan Lal, one compromise deed with regard to a compromise effected in Police Station between him and Sohan Lal and one copy of the pronote. There is no receipt with regard to payment of Rs.85,000/- to Sohan Lal. He has issued the receipt with regard to Rs.65,000/volunteered there is no receipt regarding remaining amount of Rs.20,000/-. A suggestion was given to the defendant that the receipt has not been given by the plaintiff because the entire payment was not made by him, which was denied. He also stated that the pronote was of Rs.1,70,000/volunteered the same was filled up with regard to the double of the amount due against him. He also denied the suggestion that the signatures of Sohan Lal on Ex.D1 are forged and fabricated. He also stated that Ex.D-2 is hand written of police officials. He does not know who was that officer, who written Ex.D-2. DW-2 Parminder Singh tendered into evidence his affidavit Ex.DB. He deposed that document Ex.D-1 be also read into evidence. In the affidavit, he deposed that on 9.5.2006, the defendant paid a sum of Rs.65,000/- to the plaintiff in his presence and other marginal witnesses, namely, Tarlochan Singh and Harnam Singh. Then with this regard, a receipt of Rs.65,000/- was issued by the plaintiff in the presence of the deponent. He
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also deposed regarding the receipt. I have perused the cross examination of DW-2. There is nothing on the record to disbelieve the statement of DW-2. DW-3 Sukhchain Singh also maintly deposed the same facts as stated by the defendant. He deposed regarding the compromise Ex.D2. This witness has not appeared for cross examination. Therefore, his statement cannot be read into evidence his affidavit Ex.PA in which he mainly deposed the same facts as stated in the plaint. In cross-examination, PW 1 stated that Sachdev Atwal is his brother-in-law. He admitted that Sachdev Atwal is friendly with the defendant Surjit Singh. He also stated that the pronote was for Rs.1,70,000/- and Rs.85,000/- were given again said Rs.1,70,000/- were given. Perusal of the evidence on record shows that firstly the exception of the pronote and receipt is admitted by the defendant and this fact is also admitted by the defendant that in the pronote amount was written as Rs.1,70,000/-. Defendant states that only Rs.85,000/- were given. Therefore, the onus was upon the defendant to show that Rs.1,70,000/- were not paid but only Rs.85,000/- were given. There is no evidence on the record to prove this fact that only Rs.85,000/- were given. Mere oral statement of the plaintiff and further by pronote and receipt i.e. document to show that the pronote was for Rs.1,70,000/-. As regarding payment of Rs.20,000/- on 25.1.2006, it is admitted by the plaintiff in the plaint that is why the suit has
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been filed showing Rs.1,50,000/- as principal and Rs.1,20,000/- as interest. Further, I find that the defendant has proved the receipt Ex.D1 by bringing attesting witness and proved payment of Rs.65,000/- on 9.5.2006. In this receipt, it is no where written that whole amount has been received from the defendant. I have perused the cross examination of DW-2. There is nothing in the cross examination to disbelieve the statement. Therefore, the learned lower court has correctly held that Rs.20,000/- as admitted in the plaint and Rs.65,000/- as per receipt Ex.D1 were proved to be paid by the defendant. The compromise Ex.D2 only has been produced by the defendant by bringing the attesting witness, Sukhchain Singh to prove this compromise but he was not produced for cross examination. Therefore, this document Ex.D2 has not been proved by leading cogent evidence.”
A combined reading of the impugned judgements and decrees would show that the learned courts below proceeded on a factually correct and legally justified approach, while decreeing the suit of the plaintiff. Defendantappellant was trying to play smart with a view to deny his financial liability. He was also facing criminal trial in this regard. Overall conduct of the defendantappellant was such that he was not entitled for any kind of relief. In this view of the matter, it is unhesitatingly held that the learned courts below rightly appreciated the evidence and the impugned judgements and decrees deserve to be upheld for this reason, as well.
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During the course of hearing, learned counsel for the appellant could not point out any jurisdictional error or patent illegality apparent on the record of the case, in either of the judgements passed by the learned courts below. He also failed to put into service any substantive argument, so as to convince this court to take a different view than the one taken by the learned courts below. Further, no question of law, much less substantial question of law has been found involved in the present case, which is sine qua non for interference at the hands of this court, while exercising its jurisdiction under Section 100 CPC. Thus, the impugned judgements and decrees deserve to be upheld.
No other argument was raised.
Considering the peculiar facts and circumstances of the case noted above, coupled with the reasons aforementioned, this court is of the considered view that present appeal is misconceived, bereft of merit and without any substance, thus, it must fail. No case for interference has been made out.
Resultantly, instant appeal stands dismissed, however, with no
order as to costs.
4.3.2014 (RAMESHWAR SINGH MALIK) GS JUDGE
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3 issues framed by the court
Whether the defendant-appellant failed to discharge the burden of proving that the loan amount had been fully repaid.
Whether the impugned judgments and decrees passed by the courts below are sustainable under Section 100 of the CPC.
Whether the appellant has demonstrated a substantial question of law to warrant interference by this Court.
SURJIT SINGH
SOHAN LAL
RAMESHWAR SINGH MALIK
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
