Punjab-Haryana High Court
Rai Sahab And Anr vs M/S Lekh Raj Amit Kumar on 22 December, 2014
Author: Amit Rawal
Bench: Amit Rawal
RSA No.593 of 2012 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA HIGH COURT
AT CHANDIGARH
RSA No.593 of 2012 (O&M)
Date of decision: 22.12.2014
Rai Sahab and another
....Appellants
Versus
M/s Lekh Raj Amit Kumar
....Respondent
CORAM: Hon'ble Mr. Justice Amit Rawal
Present: Mr. Ashok Verma, Advocate for the appellants.
*****
Amit Rawal, J.
The Regular Second Appeal at the instance of appellants- defendants is against the judgment and decree of both the Courts below whereby the suit of the plaintiff-respondent for recovery of `8,32,300/- alongwith interest @ 6% p.a. from the date when the amount became due till the actual realisation, has been decreed.
The case set out by the respondent-plaintiff before the trial Court was that on the basis of account books of the firm appellants- defendants had a current and a running account with the respondent-plaintiff firm and from time to time the appellants-defendants had been acknowledging the amount due by signing the account books which had been outstanding.
MEENU KUMARI 2015.01.05 14:31 I attest to the accuracy and authenticity of this document High Court, Chandigarh RSA No.593 of 2012 -2-
The respondent-plaintiff in support of its case, brought on record original account books Ex.P3 to Ex.P50 and after seeing the original, photocopies of the same had been exhibited as Ex.P3 to Ex.P50. It is pertinent to mention that at the time of cross-examination of PW1 Chaudhary Ram, no objection with regard to the exhibition of the documents was taken by the appellants-defendants.
Learned trial Court on the basis of the evidence particularly the documentary and on going through the cross-examination of PW1 Chaudhary Ram found that original Bahi entries were produced at the time of examination of PW1 and appellants-defendants, did not raise the objection at that relevant point of time. The said witness to a specific question, answered that the entries were prepared on his instructions by the Clerk of the firm and all the entries Ex.P3 to Ex.P6 and onwards, were duly acknowledged by the defendants whereby outstanding amount was due to the respondent-plaintiff from the appellants-defendants.
The lower Appellate Court in appeal also reiterated and reaffirmed the findings rendered by the trial Court and after examining the oral and documentary evidence, threadbare, the lower Appellate Court came to the conclusion that suit of the respondent-plaintiff was well within the period of limitation as the appellant-defendants from time to time had been acknowledging debt as late as till 2003 whereas the suit was filed on 9.10.2004.
Mr.Ashok Verma, learned counsel for the appellant-defendant has raised the following submissions in support of the aforementioned appeal:
MEENU KUMARI 2015.01.05 14:31 I attest to the accuracy and authenticity of this document High Court, Chandigarh RSA No.593 of 2012 -3-
(i)He submitted that account books are not produced in accordance with the provisions of Order 7 Rule 17 CPC.
(ii)The respondent-plaintiff had been claiming outstanding amount from 1998 whereas the document which have been placed on record i.e. books of account are from 25.4.2000 and therefore, sought interference of the Court to determine the following substantial questions of law.
(i)Whether the party relying upon entries in an Account Book must produce the original Account book and if the original Account Book is not produced before the court, whether a photocopy of the entries contained in that account Books can be entertained and exhibited?
(ii)Whether the entries in the Account Books can be proved only by examining as witness the person in whose hand the same have been made?
(iii)Whether the entries made in the Account Books can be exhibited in the statement of a person who has not recorded the same?
(iv)Whether disputed signatures on the entries in the Account Books can be compared with the admitted signatures from the photocopy of the Account Book?
(v)Whether mere marking of a document as an exhibit is sufficient to dispense with its formal proof?
(vi)Whether mere proof of entries of loan made in the names of the persons other than the defendant himself can be taken into account for creating liability agianst the defendant?
(vii)Whether the entries of loan neither signed by the defendant himself nor by any other person can be taken into consideration for rendering the defendants liable to pay back the amount of such entries?
(viii)Whether mere forwarding of the amount of loan from one year to the subsequent year would by itself extend the period of limitation for recovery of the amount?MEENU KUMARI 2015.01.05 14:31 I attest to the accuracy and authenticity of this document High Court, Chandigarh RSA No.593 of 2012 -4-
(ix)Whether acknowledgment of time barred debt would create any liability against the defendant?
(x)Whether time barred suit has to be dismissed even if limitation has not been set up as a defence?
(xi)Whether interest pendente lite is payable only on the principal sum adjudged and no interest is payable on the amount of interest adjudged on such principal sum?
During the course of arguments, he supplemented two more questions of law, which are as under:
a) Whether entries made even in the regularly maintained Account Books can be admitted in evidence without corroboration by independent evidence?
b) Whether the entries made in an Account Book can be admitted into evidence without due compliance of the mandate of Order 7 Rule 17 of the Code of Civil Procedure?
In support of his submissions, he relied upon the following judgments:
(i)Karnail Singh Vs. M/s Kalra Brothers, Sirsa 2009(2) RCR (Civil) 380
(ii)Paras Nath Hiral Lal Vs. Kishan Lal Chuni Lal and others AIR 1965 Allahabad 189
(iii)P.Sood & Co. Vs. Peerchand Misrimalji Bhansali 2005(3) RCR (Civil) 64.
These judgments are on the ground of entries in the accounts book which have not been duly proved.
(iv)State through CBI V. Devilal and others 2007 (2) RCR(Civil) 391
(v) Kulandaisami Vs. Lourdusami 1999(2) RCR(C) 150
(vi) Devinder Kumar and another Vs. Syndicate Bank and others 1994(1) PLR 1.
MEENU KUMARI 2015.01.05 14:31 I attest to the accuracy and authenticity of this document High Court, Chandigarh RSA No.593 of 2012 -5-
These judgments are on the point that no interest is payable on the principal amount.
(vii) Surjit Rai Vs. Prem Kumar Khera and others 1995(2) PLR 140 is on the ground of permission to produce handwriting expert.
(viii)Hansa Industries (P) Limited Vs. MMTC Ltd. 2004(113) DLT 474 on the ground of Section 18 of the Limitation Act to contend that mere reference to a debt as being due from somebody is not sufficient to render such admission of owing a debt.
In the instant case, record of the trial Court was summoned. I have heard learned counsel for the appellant-defendant much less appraised the impugned judgment and decree and record of the trial Court with the assistance of learned counsel for the appellant-defendant.
I have examined the statement of PW1 Chaudhary Ram who unequivocally brought the original account books Ex.P3 to Ex.P50 and after seeing the original, photocopies were exhibited and while the afore- mentioned documents were tendered, the appellants-defendants did not raise the objection which fact is evident from page 273 of the trial Court record.
"I tender affidavit Ex.PW1 in my examination-in-chief.
Documents Ex.P1 to Ex.P56 be also read in my statement, whereas, in paragraph 7 of the affidavit, he stated as under:
"..............It is correct that I have brought the account books w.e.f 2000 to 2001 in which the respondent-defendant No.1 account is reflected and photocopy thereof is Ex.P3. I have brought the original account books related to the defendant which have been written by my Clerk Hari Krishan whose signatures I identify............................."MEENU KUMARI 2015.01.05 14:31 I attest to the accuracy and authenticity of this document High Court, Chandigarh RSA No.593 of 2012 -6-
The first and foremost contention of the learned counsel for the appellant is repelled/rejected from the examination of PW1 and his cross- examination. Therefore the judgment cited in support of the afore- mentioned submissions would not come to the rescue of the appellants- defendants. The judgment of this Court in Karnail Singh's case (supra) pertains to a case where original account books had not been brought on record, whereas in the present case as is evident from the statement of PW1 Choudhary Ram the original accounts books had been brought on record and the photocopies thereof had been exhibited and the appellant-defendant did not raise objection on their exhibition.
Parasnath Hira Lal's case (supra) of Allahabad High Court also does not come to the aid of the appellants-defendants as it also pertains to non-production of account books. Similar was the proposition with regard to the other judgments referred to above on account of the fact that original account books had not been brought on record.
In view of the ratio decidendi of the aforementioned judgments, provisions of Order 7 Rule 17 of the CPC cannot be pressed into service by the appellants-defendants as originals, all the bahi/account books had been brought on record by PW1.
On perusal of the Bahi entries Ex.P3, Ex.P5, Ex.P7 and Ex.P9, which pertained to the years 2000, 2001 and January 2003, the signatures of Jiwan Ram appellant and his son Rai Sahab are appended on the said account books which irresistibly proved the acknowledgment of the debt and once the appellants-defendants had acknowledged the outstanding amount due towards the respondent-plaintiff, particularly the latest one in MEENU KUMARI 2015.01.05 14:31 I attest to the accuracy and authenticity of this document High Court, Chandigarh RSA No.593 of 2012 -7- January 2003, the said acknowledgment is an acknowledgment of debt as per Section 18 of the Limitation Act, 1963.
For the sake of brevity, Section 18 of the Limitation Act is reproduced here-in-below:
18. Effect of acknowledgement in writing (1) Where, before the expiration of the prescribed period for a suit or application in respect of any property or right, an acknowledgement of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by any person through whom he derives his title or liability, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed.
(2) Where the writing containing the acknowledgment is undated, oral evidence may be given of the time when it was signed; but subject to the provisions of the Indian Evidence Act, 1872 (1 of1872), oral evidence of its contents shall not be received,. Explanation : For the purposes of this section-
(a) an acknowledgment may be sufficient though it omits to specify the exact nature of the property or right, or avers that the time for payment, delivery, performance or enjoyment has not yet come or is accompanied by a refusal to pay, deliver, perform or permit to enjoy, or is coupled with a claim to set-off, or is addressed to a person other than a person entitled to the property or right;
(b) the word "signed" means signed either personally or by an agent duly authorised in this behalf; and
(c) an application for the execution of a decree or order shall not be deemed to be an application in respect of any property or right.
Thus, for all intents and purposes, suit in the year 2004 was filed well within the period of limitation.
Learned counsel for the appellants has also submitted that the MEENU KUMARI 2015.01.05 14:31 I attest to the accuracy and authenticity of this document High Court, Chandigarh RSA No.593 of 2012 -8- Court should not have awarded interest as claimed by plaintiff because the amount claimed by the appellant was `10,45,000/- which includes `8,32,300/- as principal amount and `2,13,000/- as interest calculated at the rate of 24% per annum and in support of this, he relied upon aforesaid three judgments.
I have gone through the judgments as well as decree of the Court. The trial Court has not awarded the interest as claimed by the respondent-plaintiff but decreed the suit qua principal amount i.e. `8,32,300/- along with interest @ 6% per annum from the date when the amount became due till actual realization. Thus the contention of the appellants-defendants qua charging of the compound interest is not having substance much-less any foundation.
Once the account books for the year 2003 have been acknowledged, the appellants-defendants are deemed to have acknowledged the entire amount due even if it pertains to the year 1999 in view of the provisions of Section 18 of the Limitation Act.
I am in full agreement with the findings of the Courts below and upheld the findings which are based on appreciation of fact and law. No substantial question of law arises in this appeal for determination of this Court. Accordingly, the appeal is hereby dismissed.
( Amit Rawal ) 22.12.2014 Judge Meenu MEENU KUMARI 2015.01.05 14:31 I attest to the accuracy and authenticity of this document High Court, Chandigarh