Bal Krishan Alias Bal Kishan vs Amar Lal

S.D. Bajaj, J.—Heard.

Basing his claim on pronote and receipt dated 15.11.1970, plain-tiff-Respondent filed against Defendant-Appellant before the learned trial Court of Sub Judge 1st Class, Fazilka, a civil suit for recovery of Rs. 97,920/- (Rupees ninety-seven thousand, nine hundred and twenty only) made up of Rs. 72,000/ (Rupees Seventy two thousand only) as principal and Rs. 25,920/- (Rupees twenty-five thousand, nine hundred and twenty only) as interest thereon at the agreed rate of Re 1/ (Rupee one only) per cent per mensem from the date of advance till the date of the suit, viz: 15.11.1973. The claim made in the suit was resisted on grounds of the pronote and the receipt having not been executed by Defendant-Appellant, more so, for consideration; of the suit being barred by time, on account of the Plaintiff Respondent having not complied with the provisions of the Registration of Money Lenders and the Regulation of Accounts Act, of the suit being barred under Order II, Rule 2 of the Code of Civil Procedure, on account of the plaint having not been duly stamped with Court-fee of due valuation and requisite denomination, on account of the Plaintiff-Respondent having waived his claim for the suit amount and on account of the Defendant-Appellant being a small farmer.

Vide its detailed judgment dated 14.6.1978, learned trial Court decreed the claim made in the suit in its entirety with costs, holding that the pronote as also the receipt were both duly executed by Defendant-Appellant and for consideration, that the suit was filed within time, that the suit was not barred under Order II, Rule 2 of the Code of Civil Procedure, that the Plaintiff Respondent had never waived his claim for the suit amount, that the interest and costs were both recoverable by Plaintiff-Respondent from Defendant-Appellant because Defendant-Appellant was a trader and not a small farmer as claimed in the written statement and that the plaint was duly stamped in valuation. Finding on all the 14 issues framed by the learned trial Court was thus against the Defendant-Appellant.

Feeling agrieved from the decision of the learned trial Court, Defendant-Appellant had filed R. F. A. No. 723 of 1978 in this Court. Stay of execution of the decree having been declined initially on 15.9.1978 and thereafter on 26.10.1978, Plaintiff-Respondent is reported to have realized the decretal amount from Defendant-Appellant, during the pendency of the present appeal in this Court.

Handwriting expert Veer Kumar Sakhuja examined by Defendant Appellant as D. W. 2 before the learned trial Court to Substantiate his contention of want of execution of the pronote and receipt and alteration of the date of execution of the pronote and the receipt allegedly from 15.1.1970 to 15.11.1970 having not been believed by the learned trial Court for cogent and convincing reasons recorded in its assailed judgment, learned trial Court aptly based its decision in this regard on the reliable depositions of the scribe Parma Nand P. W. 2, attesting witness Loon Karan P.W. 1 and Plaintiff-Respondent Amar Lal P. W. 3. Interested denial of Defendant-Appellant Bal Krishan both in regard to the execution of the pronote and the receipt as also in regard to the non-receipt of consideration therefore was also rightly ignored by it. Its finding on issues Nos. 1, 2, 4 and 6 is affirmed.

Issues Nos. 3 and 5 were treated as preliminary issues and decided against the Defendant-Appellant on 20.4.1976. Defendant-Appellant did not assail that decision of the learned trial Court any further and the same has, therefore, become final inter parties. There is no evidence of waiver of the claim and the same has rightly been held by the learned trial Court to be not barred under Order II, Rule 2 of the CPC on account of the Plaintiff-Respondent having filed another suit against Defendant-Appellant for the recovery of Rs. 2,700/- only (Rupees two thousand seven hundred only) on a different and independent cause of action. Defendant-Appellant was a partner in business with Plaintiff Respondent along with Loon Karan P. W. 1 and has, therefore, rightly been adjudged as trader ; not entitled to the benefit of Sections 3 and 4 of the Punjab Regulation of Accounts Act, 1930, by the learned trial Court in its finding on additional issues No 2. Findings recorded by the learned trial Court against Defendant-Appellant on all the 14 issues framed by it in the suit are, therefore legally correct and affirmed. There is thus no merit in the appeal and the same is, consequently, dismissed with costs.