Punjab-Haryana High Court
Krishan Lal And Another vs Daya Krishan on 28 January, 2014
Author: Paramjeet Singh
Bench: Paramjeet Singh
-1-
RSA No.3498 of 2013
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA No.3498 of 2013 (O&M)
Date of decision: 28.01.2014
Krishan Lal and another
....Appellants
Versus
Daya Krishan
....Respondent
CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH
1) 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. A.K. Khunger, Advocate, for the appellants.
*****
PARAMJEET SINGH, J.
This regular second appeal is directed against the judgment and decree dated 13.08.2011 passed by learned Civil Judge (Junior Division), Fazilka, as well as against the judgment and decree dated 13.02.2013 passed by learned Additional District Judge Fazilka, whereby the suit of the respondent/plaintiff for recovery with proportionate costs has been decreed and counter-claim filed by the appellants/defendants has been dismissed.
The detailed facts of the case are already recapitulated in the judgments of the Courts below and are not required to be reproduced in detail. However, the facts relevant for disposal of this second appeal are to the effect that respondent/plaintiff is carrying on business of Singh Ravinder 2014.02.21 14:01 I attest to the accuracy and integrity of this document Chandigarh -2- RSA No.3498 of 2013 commission agent under the name and style of M/s Narain Dass Sardari Lal and plaintiff is the sole proprietor of the said concern. Plaintiff advances loan to the agriculturists for the purpose of sowing their agricultural crops till its harvest. Defendant No.1, an agriculturist, also used to get money as loan on advance basis and used to sell produce of his crops at the shop of the plaintiff and for this purpose defendant No.1 got opened a current, running and open account with the plaintiff and also agreed to pay interest at the rate of 2% per month on the loan amount. Defendant No.1 after confirmation of outstanding balance of `42,000/- on 27.01.1999 took advances on different dates thereafter and entries to that effect were made in the rokar bahi of the plaintiff at various pages fully detailed in the plaint and signed by defendant No.1 except four entries dated 27.07.1999, 02.08.1999, 21.08.1999 and 10.09.1999 where defendant No.2, son of defendant No.1, signed. Defendants repaid by way of selling their crop and return of pesticides and entries to this effect were made in the rokar mall and rokar bahi. After adjusting the amount paid by defendant No.1 towards his account, balance of amount of `2,12,071/- remained outstanding. Thereafter, defendant No.1 did not turn up to make the repayment of the loan amount in cash or to adjust the amount by way of sale of agricultural produce through the agency of the plaintiff, rather started selling the produce of his crops at the shops of other commission agents. It is further alleged that plaintiff keeps regular account books which are properly maintained in the normal course of business and balances are Singh Ravinder 2014.02.21 14:01 I attest to the accuracy and integrity of this document Chandigarh -3- RSA No.3498 of 2013 struck daily in the account books and the accounts are always open for scrutiny and inspection of its customers. It is further alleged that after adding the agreed interest at the rate of 2% per month towards the principal amount of `2,12,071/- the plaintiff is entitled to recover a total sum of `3,46,852/- from the defendants.
Upon notice defendants appeared and filed written statement-cum-counter claim taking preliminary objections that plaintiff is carrying on the business of money lending but he has not obtained the money lending license, suit is legally not maintainable in its present form, defendant No.1 got opened an account, running and open account with the plaintiff in the year 1988 and at the time of opening the account with the plaintiff, plaintiff also agreed to pay the same rate of interest to defendant No.1 on the amount which was deposited at shop of the plaintiff in the shape of sale of produce of the crops but from the year 1988, plaintiff had paid nothing to defendant No.1 by way of interest. If the plaintiff calculates the interest at the rate of 1.50% per month, then he is also liable to pay the interest to defendant No.1 at the said rate but plaintiff has not intentionally calculated the interest upon the outstanding amount of defendants towards the plaintiff and in this way, defendant No.1 is entitled for rendition of accounts for the period from 07.06.1988 to 29.11.1999. Defendant No.1 regularly maintains the account in his note book regarding taking any amount in advance from the plaintiff and also regarding sale of agricultural produce through the agency of the plaintiff. As such defendant No.1 is entitled for rendition of account and Singh Ravinder 2014.02.21 14:01 I attest to the accuracy and integrity of this document Chandigarh -4- RSA No.3498 of 2013 also for recovery of said amount from the plaintiff along with interest at the agreed rate of 18% per annum till realization. It is further averred that defendant No.1 had repeatedly been approaching the plaintiff for rendition of account and settlement of account but every time plaintiff had been putting off the matter on one pretext or the other but had intentionally and wrongly calculated the interest upon the amount which was taken by defendant No.1 from the plaintiff. Plaintiff has no right, locus standi or cause of action to file the present suit. Plaintiff is estopped by his own acts, conduct and inaction from filing the suit. On merits, it is admitted that defendant No.1 had agreed to sell his agricultural produce through the agency of the plaintiff at his shop and defendant No.1 used to sell his produe at the shop of the plaintiff and for this purpose, defendant No.1 got opened current and running account with the plaintiff. It is further submitted that at the time of opening the account with the plaintiff, rate of interest on the advance amount taken by defendant No.1 and on the amount of sale proceeds of crop was settled at the rate of 1.50% per month and the plaintiff has taken undue advantage of complicity and illiteracy of defendant No.1 and filed the present suit to cheat him. It is further submitted that defendant No.1 never instructed defendant No.2 to get any amount from the plaintiff in his account. It is further prayed that counter claim of `2,73,817/- along with interest be decreed in favour of the defendant.
Plaintiff filed replication to the written statement as well as reply to the counter claim reiterating the averments mentioned in the Singh Ravinder 2014.02.21 14:01 I attest to the accuracy and integrity of this document Chandigarh -5- RSA No.3498 of 2013 plaint and denying those contained in the written statement as well as the counter claim.
Court of first instance, on perusal of pleadings of the parties, framed following issues: -
"1. Whether the plaintiff is entitled to recovery of Rs.346851/- alongwith interest as prayed for? OPP
2. Whether suit of the plaintiff is not maintainable in the present form? OPD
3. Whether the plaintiff has got no locus standi to file the present suit? OPD
4. Whether the plaintiff is estopped by his own act and conduct from filing the present suit? OPD
5. Whether the defendant is entitled to recovery of Rs.273817/- alongwith interest as alleged in the counter claim? OPD
6. Whether the counter claim is within time? OPD
7. Whether the counter claim is not maintainable for want of proper court fee? OPP
8. Relief."
Parties led their respective evidence. The Court of first instance, after appreciating evidence on record dismissed the counter- claim filed by the defendants and decreed the suit of the plaintiff for recovery of `2,12,071/- along with pendente lite interest at the rate of 9% per annum from the dates of advancement of loan till the date of decree and thereafter at the rate of 6% per annum from the date of decree till its realization with proportionate costs. The appeal preferred by the defendants/appellants has been disposed of by the lower appellate Court Singh Ravinder 2014.02.21 14:01 I attest to the accuracy and integrity of this document Chandigarh -6- RSA No.3498 of 2013 affirming the findings of the Court of first instance, however, modifying the decree, decreed the suit of the plaintiff for recovery of `1,77,797/- against defendant No.1 and for `34,274/- against defendant No.2. Hence this regular second appeal.
I have heard learned counsel for the appellant and perused the record.
Learned counsel for the appellants contended that substantial questions of law have been framed in para No.7 of the grounds of appeal, which read as under: -
"1. Whether there is not a total mis-appreciation of evidence by both the Courts while deciding the present case?
2. Whether the appellants are not entitled for the same rate of interest for the amount which was lying deposited with the respondent firm by sale of their produce?
3. Whether the entries in the note books were not relevant while deciding the controversy particularly when the same were duly exhibited and proved according to law on the case file and further the same were maintained date wise and most of the entries tally with the accounts of the respondent firm?"
Admittedly, the counter-claim is like an independent suit. Once counter-claim has been declined and the decree thereof is not challenged in separate appeal then the judgment and decree is deemed to have been accepted in one case, which will also be binding in the suit Singh Ravinder 2014.02.21 14:01 I attest to the accuracy and integrity of this document Chandigarh -7- RSA No.3498 of 2013 and thus the appeal in suit will be barred by principle of res judicata. Reference may be made to decision of Hon'ble Supreme Court in Harbans Singh and others vs. Sant Hari Singh and others, AIR 2009 SC 1819.
Otherwise also, learned counsel for the appellants has failed to show that the findings recorded by lower appellate Court 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 question of law, as alleged, arises in the present appeal.
Dismissed in limine.
(Paramjeet Singh) Judge January 28, 2014 R.S. Singh Ravinder 2014.02.21 14:01 I attest to the accuracy and integrity of this document Chandigarh