Sukhdev Singh Vs. Darshan Singh - Court Judgment

-1- RSA No.2276 of 2013 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2276 of 2013 (O&M) Date of decision:

11. 02.2014 Sukhdev Singh ....Appellant Versus Darshan Singh ....Respondent CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH1 Whether Reporters of the local papers may be allowed to see the judgment ?. 2) To be referred to the Reporters or not ?. 3) Whether the judgment should be reported in the Digest ?. Present: - Mr. Preetwinder Singh Dhaliwal, Advocate, for the appellant. ***** PARAMJEET SINGH, J.

CM No.6212-C of 2013 Allowed. Appellant is allowed to make good the deficiency in court fee. CM No.6213-C of 2013 For the reasons mentioned in the application, CM is allowed. Delay of 603 days in refiling the appeal is condoned. RSA No.2276 of 2013 This regular second appeal is directed against the judgment and decree dated 03.12.2009 passed by learned Additional Civil Judge (Senior Division), Phul, whereby the suit for recovery filed by the respondent/plaintiff was decreed as well as against the judgment and decree dated 05.04.2011 passed by learned District Judge, Bathinda Singh Ravinder 2014.03.13 09:38 I attest to the accuracy and integrity of this document Chandigarh -2- RSA No.2276 of 2013 whereby the appeal preferred by the appellant/defendant against judgment and decree of the Court of first instance has been dismissed. For convenience sake, reference to parties is being made as per their status in the civil suit. The detailed facts of the case are already recapitulated in the judgments of the Courts below and are not required to be reproduced. However, the facts relevant for disposal of this second appeal are to the effect that defendant Sukhdev Singh borrowed an amount of Rs.1,50,000/- with the stipulation to pay interest @ 2 per cent per month on 04.06.2004 and executed a pronote and receipt in lieu of said loan amount. However, the plaintiff has claimed the interest @ 12 per cent per annum on the above mentioned loan amount. The defendant failed to return the loan amount or interest thereon despite several demands and requests made by the plaintiff, due to which plaintiff was left with no alternative but to file the present suit. Upon notice, defendant appeared and filed written statement raising legal objections inter alia on the ground of cause of action, false and frivolous facts and claimed special costs to tune of Rs.5000/- under Section 35-A of CPC. It was pleaded that the plaintiff is estopped from filing the present suit by his own act and conduct. It was averred that defendant had been paying the interest on the principal amount with half years rests along with some amount out of principal amount borrowed by him from the plaintiff. Though the whole amount stands paid to the plaintiff, plaintiff has not returned the original pronote and receipt to the Singh Ravinder 2014.03.13 09:38 I attest to the accuracy and integrity of this document Chandigarh -3- RSA No.2276 of 2013 defendant. Plaintiff undertook that he will return the pronote and receipt later on. Plaintiff wanted to get engaged the daughter of the defendant with some ineligible person. However, defendant refused due to which the plaintiff was harbouring grudge against him. Replication was filed by the plaintiff denying the averments in the written statement and reiterating the averments in the plaint. Court of first instance, on the basis of pleadings of the parties, framed following issues: -

“1. Whether the plaintiff is entitled to recovery including interest as prayed for?. OPP2 Whether plaintiff has no cause of action to file the present suit?. OPD3 Whether plaintiff is estopped from filing the present suit by his own act and conduct?. OPD4 Whether defendant is entitled to special costs as prayed for?. OPD5 Relief.”

. The Court of first instance, after appreciating evidence on record decreed the suit of the plaintiff for the recovery of Rs.1,76,750/- with proportionate costs along with pendente lite and future interest @ 6 per cent per annum till realization of decretal amount. Against the judgment and decree of the Court of first instance, appeal preferred by the appellant has been dismissed and the judgment and decree of the Court of first instance has been affirmed by lower appellate Court. Hence this regular second appeal. I have heard learned counsel for the appellant and perused the Singh Ravinder 2014.03.13 09:38 I attest to the accuracy and integrity of this document Chandigarh -4- RSA No.2276 of 2013 record. Learned counsel for the appellant referred to substantial questions of law mentioned in the grounds of appeal, which read as under: -

“1. Whether the suit of the respondent is time barred?.

2. Whether the respondent has any locus standi to file the suit?.

3. Whether the judgments and decrees are illegal and perverse?.

4. Whether the findings of the learned Courts below are suffering from any apparent perversity on the face of it being contrary to law and facts on record?.

5. Whether the impugned judgments and decrees do not suffer an apparent illegality and perversity because of ignoring the material piece of evidence have been direct impact on decision of the case?.

6. Whether the impugned judgments and decrees can be allowed to be sustained especially when the same are result of consideration of irrelevant fact and non- consideration of relevant fact?.

7. Whether the learned Courts below have committed serious irregularities and illegalities in decreeing the suit of the respondent/plaintiff?.

8. Whether the learned Courts below have misread and misconstrued the evidence on file and have failed to consider the material evidence on the file and thus have committed serious illegality?.”. Issues Nos.1 to 3 have been decided together by the Court of first instance. It has been held by the Court of first instance that defendant has admitted that he has availed loan of Rs.1,50,000/- from the Singh Ravinder 2014.03.13 09:38 I attest to the accuracy and integrity of this document Chandigarh -5- RSA No.2276 of 2013 plaintiff and executed the pronote and receipt Ex.P1 and Ex.P2 in his favour. The Court of first instance has further held that version of the defendant that on receipt of total amount, plaintiff has not returned the original pronote and receipt cannot be believed as the defendant has failed to place on record any receipt or document regarding the payment of the instalments of the loan/interest amount to the plaintiff. The execution of pronote and receipt as well as the factum of passing of consideration of Rs.1,50,000/- has been duly proved by attesting witness PW2 Des Raj. Except bald statement of defendant Sukhdev Singh DW1 no oral or documentary evidence has been adduced regarding the repayment of loan amount. The said findings of Court of first instance have been affirmed by the lower appellate Court. Concurrent findings of fact have been recorded by both the Courts below that defendant had taken loan amount of Rs.1,50,000/- from the plaintiff with the stipulation to pay the interest @ 2 per cent per month, however, the defendant failed to pay anything out of loan amount or interest. These are pure findings of fact, which cannot be disturbed in the regular second appeal. Learned counsel for the appellant has failed to show that the findings recorded by Courts below are perverse or illegal or based on misreading, non-reading or mis-appreciation of the material evidence on record. In view of above, no question of law, muchless substantial Singh Ravinder 2014.03.13 09:38 I attest to the accuracy and integrity of this document Chandigarh -6- RSA No.2276 of 2013 question of law, as alleged, arises in the present appeal. No other point has been raised. Dismissed in limine. (Paramjeet Singh) Judge February 11, 2014 R.S. Singh Ravinder 2014.03.13 09:38 I attest to the accuracy and integrity of this document Chandigarh