Gurdit Singh vs Vinod Kumar

L.N. Mittal, J.

C.M. No. 11479-C of 2010:

Allowed as prayed for.

Main Appeal:

Defendant Gurdit Singh is in second appeal after remaining substantially unsuccessful in both the courts below.

Respondent-plaintiff Vinod Kumar filed suit against defendant-appellant Gurdit Singh for recovery of Rs. 2,00,000/ -. The plaintiff is a commission agent. The defendant used to sell his agricultural produce at the shop of the plaintiff. The defendant also used to borrow some amounts from the plaintiff as per requirement.

The plaintiffs case is that the defendant on 28.05.2002 borrowed cash amount of Rs. 1,00,000/ - from the plaintiff and signed entry in cash book of the plaintiff regarding the same. Various other amounts were also borrowed by the defendant from the plaintiff by signing bahi entries. Amounts paid by the defendant have been credited in his account. Details of amounts advanced and amounts adjusted have been given in the plaint. Ultimately, a sum of Rs. 1,29,829.50 paise remained outstanding from the defendant to the plaintiff during the year 2002-03. The same was carried forward in account books of subsequent years. The plaintiff claimed interest @ 2% per month as per custom and usage in the market for such loan. Accordingly, plaintiff sought recovery of Rs. 2,00,000/ -.

The defendant controverted the plaint allegations and raised various preliminary objections and other pleas.

Learned Civil Judge (Junior Division), Abohar, vide judgment and decree dated 22.09.2007, partly decreed the plaintiff''s suit for recovery of Rs. 1,17,110/ - with interest thereon @ 8% per annum from the date of accrual till filing of the suit and @ 6% per annum from the date of filing of suit till recovery. First appeal preferred by the defendant has been dismissed by learned District Judge, Ferozepur, vide judgment and decree dated 24.02.2009. Feeling aggrieved, defendant has preferred the instant second appeal.

I have heard learned Counsel for the appellant and perused the case file.

The plaintiff appeared in the witness-box and proved various entries regarding amounts advanced to the defendant and the amounts paid back by the defendant. On the other hand, the defendant himself appeared in the witness-box and stated about his own version.

Some entries regarding advancing of amounts by the plaintiff to the defendant were unsigned. Plaintiff''s claim regarding amount of said entries has been disallowed by the courts below. However, remaining entries regarding advancement of various amounts by the plaintiff to the defendant have been signed by the defendant. The defendant did not deny his signatures thereon. Consequently, plaintiffs suit has been rightly decreed for amounts of the signed bahi entries after adjusting the amounts paid by the defendant. There is thus no infirmity much less illegality in the judgments of the courts below. Both the courts below after appreciation of evidence have arrived at concurrent finding against the defendant-appellant. The said finding is not shown to be illegal or perverse in any manner nor any question of law, much less any substantial question of law, arises for determination in the instant second appeal.

Learned Counsel for the appellant contended that plaintiffs Accountant Lekh Raj, who had made entries in the account books, has not been examined as witness by the plaintiff. This contention does not help the appellant because the plaintiff-respondent himself appeared in the witness box and identified the entries made by his Accountant Lekh Raj. The plaintiff could certainly identify the handwriting of his own Accountant Lekh Raj. Consequently, non-examination of Lekh Raj does not give rise to any adverse inference against the plaintiff-respondent. On the other hand, the amounts were advanced by the plaintiff and entries in the account book were signed by the defendant. The aforesaid contention therefore has to be repelled.

For the reasons aforesaid, I find no merit in the instant second appeal, which is accordingly dismissed in limine.