Punjab-Haryana High Court
Gurmail Singh vs Rakesh Kumar on 30 August, 2012
Author: L.N. Mittal
Bench: L.N. Mittal
Regular Second Appeal No. 1707 of 2012(O&M) -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Regular Second Appeal No. 1707 of 2012(O&M)
Date of decision : August 30, 2012
Gurmail Singh
....Appellant
versus
Rakesh Kumar
....Respondent
Coram: Hon'ble Mr. Justice L.N. Mittal
Present : Mr. Arun Bansal, Advocate, for the appellant
L.N. Mittal, J. (Oral)
CM No. 4673.C of 2012 Allowed as prayed for.
CM No. 4674.C of 2012 and RSA No. 1707 of 2012 Defendant Gurmail Singh having failed in both the courts below has filed this second appeal.
Suit was filed by plaintiff-respondent Rakesh Kumar, Partner of M/s Shambu Ram Vijay Kumar, Commission Agents against defendant appellant for recovery of ` 6,45,000/-. The plaintiff alleged that plaintiff-
Regular Second Appeal No. 1707 of 2012(O&M) -2- Firm M/s Shambu Ram Vijay Kumar, Commission Agents is a partnership concern and is registered with the Registrar of Firms and Rakesh Kumar is its partner. The defendant on 18.8.1999 borrowed ` 3,75,000/- from the plaintiff-firm and executed pronote and receipt in its favour and agreed to repay the loan with interest @ 2% per annum but did not pay the loan amount and interest amount. Accordingly, the plaintiff claimed ` 3,75,000/- as principal amount and ` 2,70,000/- as interest till filing of the suit and accordingly filed the suit for recovery of total amount of ` 6,45,000/-.
The defendant broadly controverted the plaint averments. The defendant alleged that he had been selling his crops through M/s Shambu Ram Vijay Kumar, Commission Agents. Plaintiff Rakesh Kumar had been obtaining signatures of defendant on some blank and printed forms and papers and in the process, the plaintiff might have taken signatures of the defendant on blank pronote and receipt in question in connivance with scribe and marginal witnesses thereof. The defendant stopped dealing with the said Firm in the year 1998 and therefore, it is unbelievable that defendant borrowed ` 3,75,000/- from the plaintiff on 18.8.1999. The defendant denied having borrowed the amount from the plaintiff. The defendant also raised various other pleas.
Learned Civil Judge (Junior Division), Talwandi Sabo vide Regular Second Appeal No. 1707 of 2012(O&M) -3- judgment and decree dated 27.11.2007 decreed the plaintiff's suit for recovery ` 3,75,000/- along with interest thereon @ 12% per annum with effect from 18.8.1999 i.e. the date of advancing the loan till the date of decree of trial court and future interest from the date of decree of the trial court till recovery. First appeal preferred by defendant has been dismissed by learned Additional District Judge, Fast Track Court, Bathinda vide judgment and decree dated 20.12.2011. Feeling aggrieved, the defendant has filed this second appeal.
Along with appeal, appellant has moved CM No. 4674.C of 2012 for additional evidence to place on record charge sheet Annexure A/1 as amended by charge sheet Annexure A/2 against Rakesh Kumar and others and judgment Annexure A/3 passed in appeal whereby acquittal of defendant and others in a criminal case was affirmed.
I have heard learned counsel for the appellant and perused the case file.
As regards proposed additional evidence, the same is hardly relevant. Charge sheets Annexures A/1 and A/2 against Rakesh Kumar and others pertain to alleged incident dated 2.10.2001 regarding wrongful confinement of one Bhola Singh. It is beyond comprehension as to how the said charge sheets have any bearing on the instant lis which pertains to loan amount allegedly advanced to defendant on 18.8.1999. Similarly, judgment Regular Second Appeal No. 1707 of 2012(O&M) -4- Annexure A/3 pertaining to FIR dated 14.4.2003 can have no bearing on the instant case. Rakesh Kumar is not party to the criminal case in judgment Annexure A/3 whereas defendant - appellant is not party in criminal case in charge sheets Annexures A/1 and A/2. Thus, proposed additional evidence is completely irrelevant. Accordingly, CM No. 4674.C of 2012 is dismissed.
Counsel for the appellant contended that alleged signatures of defendant on impugned pronote and receipt have not been affixed by the defendant. Reference was made to statements of Expert witnesses examined by both the parties and enlarged photographs of disputed signatures.
I have carefully considered the aforesaid contention but find no merit in the same in view of pleadings and other evidence on record. The defendant himself pleaded in the written statement that plaintiff had been obtaining his signatures on blank forms and papers. The implication of this plea in the written statement is that the defendant impliedly admitted his signatures on pronote-cum-receipt because otherwise there was no relevance of pleading this fact in the written statement.
In addition to the aforesaid, the plaintiff has also examined both attesting witnesses of the impugned pronote-cum-receipt, besides himself appearing in the witness box. On the other hand, there is solitary statement Regular Second Appeal No. 1707 of 2012(O&M) -5- of the defendant himself. The plaintiff has thus led cogent evidence in support of his case and the same has not been rebutted by the defendant. In these circumstances, testimony of Expert witnesses examined by both sides pales into insignificance. Even otherwise, science of comparison of Handwriting (including signatures) is not a perfect science and it has often been seen that the Expert witness ordinarily deposes in favour of the party examining him. Much reliance cannot be placed on testimony of the Expert witnesses in the instant case when there are contradictory reports by them. However, the plaintiff has led other evidence to prove his case. Concurrent finding recorded by both the courts below in this regard is fully justified by the evidence on record. The said finding is not shown to be perverse or illegal or based on misreading or misappreciation of evidence so as to call for interference in exercise of second appellate jurisdiction.
Counsel for the appellant next contended that the loan had allegedly been advanced by partnership firm but the suit has been filed by Rakesh Kumar in his personal individual capacity and, therefore, suit is barred by Order 30 Rule 1 of the Code of Civil Procedure (in short, CPC) read with Section 69(2) of the Partnership Act and Section 54 of the Contract Act. Reliance in support of this contention has been placed on various judgments namely Tarachand versus Hulkar Mal and others, AIR 1979 Delhi 160; Chhotelal Ratnalal and another versus Rajmal Regular Second Appeal No. 1707 of 2012(O&M) -6- Milapchand and others, AIR (38) 1951 Nagpur 448; M/s Bholabhai Bhogilal versus Rattan Chand and others, AIR 1958 Punjab 260; Ashok Transport Agency versus Awadhesh Kumar and another, 1998(2) Judicial Reports (Civil & Rent) 776; Shah Velji Narsee versus Vasantrai Umiyashankar Pandya and Another, 2003(3) Mh. LJ 979; M.S.Sivakozhundu Mudaliar and others versus Amaravathi Finance Corporation, Karuru, 1980 AIR (Madras) 230; Firm Kanhaiya Singh Jagan Singh and Anr. Versus Ist A.D.J. Bijnor & Ors., 2011(4) Civil Court Cases 597; Firm Buta Mal Dev Raj versus Chanan Mal and others, AIR 1964 Punjab 270; M.Muthukumaraswami versus Kumar Textiles, AIR 1996 Madras 433; Gandhi and Co. versus Krishna Glass Pvt. Ltd., AIR 1987 Bombay 348; M/s Paras Industries, Ludhiana versus M/s Paras Special Machine Co., 2003(3) Civil Court Cases 540 and Purushottam and another versus Shivraj Fine Art Litho Works and others, 2007(1) RCR (Civil) 108.
I have considered the aforesaid contention. There is no quarrel with the legal proposition as sought to be canvassed with the help of the aforesaid judgments that suit of behalf of partnership firm has to be filed in the name of firm itself and cannot be filed by the partners in individual personal capacity. However, the question to be adjudicated in this case is whether the suit has been filed by and on behalf of the partnership firm or Regular Second Appeal No. 1707 of 2012(O&M) -7- by Rakesh Kumar partner in his individual and personal capacity. Description of the plaintiff in the plaint as given in the title of judgments of the courts below is reproduced hereinunder:-
"Rakesh Kumar son of Shri Shambu Ram, Partner of M/s Shambu Ram Vijay Kumar, Commission Agents, Maur Mandi, Tehsil Talwandi Sabo, District Bathinda."
Initial part of paragraph no. 1 of the plaint (as shown by counsel for the appellant) is also reproduced hereinunder:-
"1. That the plaintiff is carrying on the business of commission Agents under the name and style of M/s Shambu Ram Vijay Kumar, Maur Mandi and plaintiff firm is partnership concern and same is registered with Registrar of Firms and Societies, Punjab, under partnership Act ..........."
A bare perusal of the aforesaid title of plaint and averments made in paragraph no. 1 of the plaint reveals that suit has in fact been filed by and on behalf of the partnership firm and not by its partner Rakesh Kumar in his personal or individual capacity. It has been specifically mentioned in the plaint that the 'plaintiff-firm' is partnership concern. This plea in the plaint clearly depicts that partnership firm is the plaintiff although not very appropriately described in the title of the plaint. Moreover, pleadings in the Mofussil courts are drafted loosely and, therefore, have to be interpreted liberally. Hyper technical approach as Regular Second Appeal No. 1707 of 2012(O&M) -8- sought to be canvassed in this case would result in grave injustice and miscarriage of justice. This is not the intention of the law or the courts. In the instant case, I find that the suit has, for all intents and purposes, been filed by and on behalf of the partnership firm in question although not very properly described in the title of the plaint. Consequently, the suit is not barred by Order 30 Rule 1 CPC or section 54 of the Contract Act or Section 69(2) of the Partnership Act.
For the reasons aforesaid, I find no merit in the instant second appeal. No question of law much less substantial question of law arises for adjudication in this second appeal. Accordingly, the appeal is dismissed in limine.
( L.N. Mittal )
August 30, 2012 Judge
'dalbir'