M/s. Banarsi Dass and Company vs Sohan Singh

Hemant Gupta, J.—The plaintiff is in second appeal aggrieved against the judgment and decree passed by the learned first Appellate Court, whereby the judgment and decree passed by the learned trial Court on 05.01.1991 decreeing the suit for recovery filed by the plaintiff was set aside. The plaintiff filed a suit for recovery of Rs. 9397.50 alleging therein that the defendant borrowed an amount of Rs. 4000/- on 27.01.1982 and executed an entry in the bahi of the plaintiff-firm so as to acknowledge the loan. It is further alleged that the defendant continued to borrow money from the plaintiff from time to time with an agreement to pay interest on the borrowed money at the rate of 2% per month. Since the defendant failed to pay the amount, the plaintiff filed the suit for recovery.

In the written statement, it was alleged that the plaintiff is a money-lender and that the plaintiff-firm is not maintaining accounts in the regular course of business and the suit is barred by limitation. It was also pleaded that an amount of Rs. 8000/- was paid to the plaintiff on 07.01.1984 after settling the accounts and thus, prayed for dismissal of the suit.

After considering the evidence on record, the learned trial Court decreed the suit relying upon the testimonies of PW-1 Bal Kishan, Accounts Clerk and PW-2 Harsharan Dass @ Roshal Lal, one of the partners, as well as entries of accounts Exs. P1 to P4. The learned trial Court also returned a finding that the defendant could not prove the payment of Rs. 8000/- to the plaintiff-firm, as he did not produce his brother Gurbachan Singh to corroborate his stand and that there was a joint account of the defendant and his brother. In view thereof, the suit was decreed by the learned trial Court. In appeal by the defendant, the learned first Appellate Court returned a finding that from the statements of PW-1 Bal Kishan, accountant of the firm and PW-2 Harsharan Dass @ Roshal Lal, it is proved that Gurbachan Singh, brother of the defendant was having his account for sale of his agriculture produce. It is also proved from the statement of PW-1 Bal Kishan that Gurbachan Singh had changed his commission agent and had closed his account on 07.01.1984. The learned first Appellate Court found that the change of commission agent would not be allowed without clearance of the account of the plaintiff. It also found that Gurbachan Singh has severed relations with the plaintiff firm with the intervention of his new commission agent. After returning such findings, the learned first Appellate Court found that the plaintiff has failed to prove the entries in the Bahi in respect of advancing of loan, as corresponding entries in the other account-books have not been proved such as entries in the cash book and the journal have not been proved. Thus, it will not be sufficient to return a finding that any amount is due and payable to the plaintiff by the defendant.

The learned first Appellate Court has discussed the entire evidence to return a finding that the plaintiff has failed to prove the advancing of any loan to the defendant. Such findings are based upon correct appreciation of evidence on record and are findings of fact. Neither any substantial question of law has been framed in the memorandum of appeal nor is the counsel for the appellant available to argue that any substantial question of law arises for consideration. Findings of fact cannot be permitted to be disputed by re-appreciation of evidence in the present second appeal. Consequently, the present appeal is dismissed.