Jagga Singh vs Sham Singh

L.N. Mittal

Plaintiff Jagga Singh, having failed in both the courts below, has filed the instant second appeal.

Plaintiff-appellant filed suit against respondent-defendant Sham Singh alleging that defendant borrowed Rs.1,00,000/- from the plaintiff on 12.01.2004 and agreed to repay the same with interest @ 2% per month and also executed pronote and receipt for the same, but the defendant failed to repay the loan amount and interest thereon. Accordingly, the plaintiff claimed Rs.1,00,000/- as principal loan amount and Rs.56,666/- as interest till filing of the suit and accordingly, filed suit for recovery of Rs.1,56,666/-.

The defendant, in his written statement, pleaded that he had in fact borrowed Rs.79,000/- from the plaintiff on 12.01.2004, but the plaintiff recorded amount of Rs.1,00,000/- in the pronote. The pronote and receipt have been fabricated by making addition or alteration by writing the names of witnesses later on. The defendant had been paying interest on the loan amount every month to the plaintiff. The defendant repaid the loan amount of Rs.79,000/- vide receipt dated 09.05.2005 executed by plaintiff in his own handwriting and thus, no amount remained due from the defendant to the plaintiff. Various other pleas were also raised.

The plaintiff, in his replication, pleaded that the defendant had earlier taken loan of Rs.50,000/- from the plaintiff on 26.10.1998 and executed pronote and receipt for the same and in recovery suit filed by the plaintiff on the basis of said pronote and receipt, compromise was effected between the parties on 09.05.2003 and pursuant thereto, the defendant paid Rs.79,000/- to the plaintiff, who executed receipt for the same, but inadvertently, date on the receipt was written as 09.05.2005 instead of 09.05.2003.

Learned Civil Judge (Junior Division), Khanna, vide judgment and decree dated 13.10.2009, dismissed the plaintiff''s suit. First appeal preferred by the plaintiff has been dismissed by learned Additional District Judge, Ludhiana, vide judgment and decree dated 29.03.2010. Feeling aggrieved, plaintiff has filed the instant second appeal.

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

Receipt dated 09.05.2005 executed by plaintiff regarding receipt of Rs.79,000/- from the defendant in full satisfaction of his claim has been admitted by the plaintiff. The defendant''s version is that the said amount was paid by him to the plaintiff towards pronote and receipt of the instant suit. However, plaintiff''s version is that the said receipt was executed by him regarding amount due on the basis of pronote and receipt dated 26.10.1998. The plaintiff has miserably failed to substantiate the said version. No such pronote and receipt dated 26.10.1998 has seen the light of the day nor any document relating to the suit filed by the plaintiff on the basis of said pronote and receipt has been produced. On the other hand, during evidence, the plaintiff came out with a new version that there was another pronote dated 24.10.2001, on the basis of which some suit for recovery had been filed. However, pronote dated 24.10.2001 was not pleaded by either party and any suit on the basis thereof, if filed by the plaintiff, can have no bearing on the present case. On the other hand, the plaintiff had to prove his version regarding pronote dated 26.10.1998, but the plaintiff miserably failed to do so.

It may also be added that if the defendant had defaulted in making payment of earlier pronotes dated 26.10.1998 and 24.10.2001, the plaintiff would not have advanced loan of Rs.1,00,000/- to the defendant on 12.01.2004 through pronote-cum-receipt, which is subject matter of the instant suit. For this added reason also, the plaintiff''s version cannot be believed.

There is concurrent finding of fact recorded by both the courts below to non-suit the plaintiff. The said finding is fully justified by the evidence on record because the plaintiff has miserably failed to prove his version regarding receipt dated 09.05.2005. The said receipt, on the other hand, corroborates the defendant''s version. Consequently, concurrent finding recorded by the courts below does not suffer from any infirmity, much less perversity or illegality so as to call for interference in exercise of second appellate jurisdiction. The said finding is also not based on misappreciation or misreading of evidence. No question of law, much less substantial question of law, arises for adjudication in this second appeal.

The appeal is meritless and is accordingly dismissed in limine.