Punjab-Haryana High Court
M/S Nahar Singh And Company And Others vs Surjit Singh on 20 July, 2009
Author: T.P.S. Mann
Bench: T.P.S. Mann
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Regular Second Appeal No. 2676 of 2009
Date of Decision : July 20, 2009
M/s Nahar Singh and Company and others
....Appellants
Versus
Surjit Singh
.....Respondent
CORAM : HON'BLE MR. JUSTICE T.P.S. MANN
Present : Mr. Gurnam Singh, Advocate
T.P.S. MANN, J.
Suit was filed by Surjit Singh-plaintiff/respondent against the defendants-appellants under Order XXXVII of the Code of Civil Procedure, for recovery of Rs.54,775/- on the basis of writing dated 17.11.2002 alongwith interest. It was decreed by learned Civil Judge (Junior Division), Jagraon, vide judgment dated 2.9.2006 for recovery of Rs.50,000/- alongwith costs and interest @ 9% from the date of institution of the suit till the date of decree and 6% simple interest from the date of decree till its realization. The defendants challenged the judgment and decree passed by the trial Court by filing an appeal, which was dismissed by learned Additional District Judge, Ludhiana, on April 17, 2008. Aggrieved of the same, the defendants are now before this Court in a second appeal filed under Section 100 of the Code of Civil Procedure. RSA No. 2676 of 2009 -2-
According to the plaintiff, as averred by him in his plaint, Nahar Singh-defendant, who alongwith his brother Piara Singh-defendant, was partner of M/s Nahar Singh and Company, Commission Agent, New Grain Market, Raikot, had taken an amount of Rs.50,000/- from him by executing a writing/receipt dated 17.11.2002. The interest settled was @ 1.5% per month and as the defendants failed to repay the said amount alongwith interest, he prayed for the grant of decree for recovering the said amount.
The defendants opposed the suit by stating that the receipt dated 17.11.2002 was a forged and fabricated document and, therefore, not admissible in evidence. It was prepared in connivance with the employees of the firm. They denied the execution of the writing/receipt and passing of consideration and further stated that the rate of interest claimed by the plaintiff was exorbitant. Accordingly, they prayed for dismissal of the suit.
After hearing learned counsel for the parties and going through the evidence examined by them in support of their respective stands, learned trial Court held that the plaintiff was successful in establishing that the defendants had borrowed a sum of Rs.50,000/- by executing receipt Ex.P.1. As the receipt had been issued by one of the partners, i.e., Nahar Singh-defendant on behalf of the firm, it was binding upon the firm and even if Nahar Singh had issued receipt in his personal capacity, even then he was bound by the decree for the reason that he was RSA No. 2676 of 2009 -3- a party to the suit.
Learned counsel for the defendants-appellants has submitted that the receipt, said to have been issued by Nahar Singh-defendant, was a forged and fabricated document. At the most, it could be considered as a bill of exchange/promissory note and as it was not stamped, it could not have been taken into consideration. Moreover, the interest claimed by the plaintiff-respondent was exorbitant.
The case of the plaintiff was that Nahar Singh-defendant had taken an amount of Rs.50,000/- from him on 17.11.2002 for the business of the firm and he executed a writing/receipt in favour of the plaintiff on the same day, assuring to repay the amount alongwith interest @ 1.5% per month. The plaintiff himself stepped into the witness box as PW1 and reiterated what he had earlier stated in his plaint. He also examined PW2 Malkiat Singh, who was present at the time of issuance of receipt Ex.P.1. Said Malkiat Singh corroborated the testimony of the plaintiff. On the other hand, none of the partners of the defendant firm stepped into the witness box to deny the issuance of receipt. One Balwinder Singh, who claimed to be an attorney of Nahar Singh-defendant stepped into the witness box as DW3, who proved Attorney Ex.D.A and copy of the partnership deed Ex.DB and stated that he was conversant with the facts of the case. He also stated that Nahar Singh alongwith Mukhtiar Singh, Gurpal Singh and Jagtar Singh was partner of the defendant firm and all the partners were responsible for the profits and losses of the firm to the RSA No. 2676 of 2009 -4- extent of their share. In his cross-examination he could not narrate about the litigation pending against the defendant firm and also about the account books. He simply denied the signatures of defendant-Nahar Singh on receipt Ex.P.1.
It stands mentioned in the Power of Attorney Ex.DA that Nahar Singh was unable to contest the suit on account of his busy schedule and, therefore, had authorized Balwinder Singh to represent him but in his testimony, DW3 Balwinder Singh had stated that Nahar Singh had suffered attack of paralysis and unable to speak properly. In view of Nahar Singh not stepping into the witness box, it is apparent that the defendants have failed to discharge the onus placed upon them regarding the receipt Ex.P.1, which they claimed in their written statement to be a forged and fabricated document.
Coming to the stand of the defendants about receipt Ex.P.1 being a bill of exchange and, therefore, it could not be admissible in evidence on account of not being stamped, the receipt Ex.P.1 could not be considered as bill of exchange at all as it is only between two parties and not between three parties as required for a bill of exchange. The contention regarding receipt Ex.P.1 being a promissory note also cannot be accepted as it does not fall within the requirements as laid down under Section 4 of the Negotiable Instruments Act.
Though it was stated in receipt Ex.P.1 that the defendants RSA No. 2676 of 2009 -5- would repay the amount alongwith interest @ 1.5% per month, yet learned trial Court decreed the suit for recovery of the principal amount of Rs.50,000/- alongwith interest @ 9% per annum from the date of institution of the suit till the date of the decree and simple interest @ 6% per annum from the date of decree till the realization of the decretal amount. Necessary benefit having already been extended to the firm by learned trial Court, no case is made out for grant of further relief.
The concurrent findings of facts arrived at by the learned Courts below do not suffer from any infirmity or irregularity. No question of law, much less substantial questions of law as claimed by the appellants, arises for determination in the present second appeal, which is, therefore, dismissed in limine.
( T.P.S. MANN )
July 20, 2009 JUDGE
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