Harnek Singh vs Kansi Ram

Hemant Gupta, J.

C.M. No. 6970-C of 2006

For the reasons mentioned in the application, the delay of 8 days in filing the appeal, is condoned subject to all just exceptions.

R.S.A. No. 2892 of 2006.

The defendant is in second appeal aggrieved against the judgment and decree passed by the Courts below whereby suit of the plaintiff for recovery of Rs. 1,72,000/- on the basis of Pronote and Receipt, was decreed.

It is the case of the plaintiff that defendant borrowed Rs. 1,00,000/- from the plaintiff on 25.2.2001 on interest @ 2% per month and executed a Pronote and Receipt in favour of the plaintiff. Since the defendant has failed to return the amount, therefore, the present suit for recovery was filed.

The defendant denied the execution of the Pronote and Receipt and alleged that the Pronote and Receipt are forged, fabricated and without consideration. It is alleged that the plaintiff is running a Karyana shop in the village and also runs the business of the Commission Agent. The defendant had been selling his crops through the Commission Agent shop of the plaintiff for a long time. The defendant stopped visiting the shop of the plaintiff as the plaintiff did not render the accounts of sale of crops to the defendant. Subsequently, the accounts were settled and it was found that plaintiff owes some amount to the defendant, but nothing was due against the defendant.

In evidence, the plaintiff has examined PW-1 Krishan Kumar, scribe of the Pronote Exhibit P-1 and Receipt Exhibit P-2. The plaintiff appeared himself as PW-3, whereas the attesting witness Harbhajan Singh has been examined as PW-2. From the testimony of the aforesaid witnesses and the "statement of the defendant and his witness. DW-2 Kaur Singh, the learned trial Court returned a finding that execution of the Pronote and Receipt is proved and that the plaintiff is entitled to recover the suit amount. The plea that the plaintiff was not maintaining the accounts properly and a dispute arose between the parties, has been found to be unreliable and without any evidence. It was found that the defendant has failed to prove the sale of crops to the plaintiff and, thus, a finding was returned that execution of the Pronote and Receipt stands proved and the plaintiff is entitled to recovery of the suit amount. The said finding has been affirmed in appeal as well.

The learned First Appellate Court held that the minor discrepancies are not sufficient to rebut the presumption of due execution of the Pronote and Receipt as the witnesses are examined after more than 3 years of the execution of the Pronote.

The execution of the Pronote and Receipt stands proved on the basis of statement of the scribe and the attesting witness. The defendant has admitted in his testimony that his thumb impressions were obtained by the plaintiff on blank papers. Thus, onus was on the defendant to prove that such documents have been used for preparing the Pronote and Receipt. However, there is no evidence of alleged forgery. The findings recorded by the Courts below are sought to be disputed by the defendant by re-appreciation of evidence in second appeal. It could not be pointed out that any evidence has been misread or not taken into consideration.

do not find any illegality or irregularity in the findings recorded by the Courts below which may give rise to any substantial question of law for consideration of this Court in second appeal.

Consequently, the present appeal is dismissed.