Ram Singh vs Raj Kumar

Mehinder Singh Sullar, J.—Concisely, the facts, culminating in the commencement, relevant for disposal of the instant appeal and emanating

from the record, are that Raj Kumar son of Bhagat Ram respondent-plaintiff (hereinafter to be referred as ""the plaintiff"") filed the suit for a decree

of recovery of Rs. 4,33,050/- (Rs. 2,70,000/- as principal amount and Rs. 1,63,050/- as interest @ 1.50% per month) against Ram Singh son of

Ujjagar Singh appellant-defendant (hereinafter to be referred as ""the defendant""), inter-alia, pleading that the defendant borrowed a sum of Rs. 4

lacs in cash as loan from him (plaintiff) on 27.6.2002 and promised to repay the same on demand alongwith interest. He (defendant) executed the

pronote (Ex.P1) and receipt (Ex.P2) in the presence of witnesses. It was read over and explained to the defendant, who thumb marked the same

in token of its correctness, after receiving a sum of Rs. 4 lacs as loan. The plaintiff claimed that the defendant paid a sum of Rs. 1,30,000/- on

30.7.2003 and he made entry in this respect on the back side of the pronote and receipt. The plaintiff requested the defendant to pay the balance

amount alongwith interest, but in vain, which necessitated him to file the present suit. On the basis of aforesaid allegations, the plaintiff filed the suit

for a decree of recovery against the defendant in the manner indicated here-in-above.

The defendant contested the suit and filed the written statement, inter-alia, pleading certain preliminary objections of, maintainability of suit and

cause of action. The defendant admitted to have borrowed a sum of Rs. 4 lacs from the plaintiff, but he claimed that he has already returned the

entire amount alongwith interest to him. The defendant has denied the execution of pronote and receipt in his favour, which were stated to be

forged and fabricated documents. According to the defendant, the plaintiff is a commission agent. When the defendant borrowed the amount, the

plaintiff obtained his thumb impressions on blank papers and forms with a promise to return the same on repayment of amount alongwith interest,

but he refused to return those papers. It will not be out of place to mention here that the defendant has stoutly denied the execution of pronote and

receipt and all other allegations contained in the plaint and prayed for dismissal of the suit.

Controverting the allegations contained in the written statement and reiterating the pleadings of the plaint, the plaintiff filed the replication. In the

wake of pleadings of the parties, the trial Court framed the necessary issues for proper adjudication of the case.

The parties to the litigation, led oral as well as documentary evidence, in order to prove their respective pleaded cases.

Having completed all the codal formalities and on ultimate analysis of evidence on record, the trial Court decreed the suit of the plaintiff, by

virtue of impugned judgment and decree dated 21.7.2008.

Aggrieved by the judgment and decree of the trial Court, the appellant-defendant filed the appeal, which was dismissed as well, by the Ist

Appellate Court, vide impugned judgment and decree dated 3.3.2010. He still did not feel satisfied with the impugned judgments and decrees of

the Courts below and filed the present appeal. That is how, I am seized of the matter.

After hearing the learned Counsel for the appellant-defendant, after going through the record with his valuable help and after deep consideration

of the matter, to my mind, there is no merit in the appeal.

However, the main argument of the learned Counsel that the plaintiff failed to prove the execution of pronote (Ex.P1) and receipt (Ex.P2) and

since the defendant has already paid the entire amount of loan alongwith interest to the plaintiff, so, the Courts below fell in error in decreeing his

suit, is not tenable and outrightly deserves to be rejected.

As is evident from the record that the plaintiff claimed that the defendant had borrowed the amount and executed the pronote and receipt in his

favour. The defendant has categorically admitted that he had borrowed the amount, but according to him, the same was returned to the plaintiff

alongwith interest. The defendant claimed that the plaintiff is a commission agent and he obtained his thumb impressions on blank papers/forms. In

that eventuality, the burden of proof shifts upon the defendant to prove that he had returned the loan amount except Rs. 1,30,000/-, which he

already paid, or the plaintiff had obtained his thumb impressions on blank forms. He has miserably failed in this context that how, when and in what

manner he had returned the borrowed amount to the plaintiff.

On the contrary, the plaintiff, in order to prove the execution of pronote (Ex.P1) and receipt (Ex.P2), examined PW1 Darshan Singh, marginal

witness, who tendered his affidavit (Ex.PW1/A) and inter-alia maintained that the defendant borrowed a sum of Rs. 4 lacs from the plaintiff, who

promised to repay the same alongwith interest at the rate of 1.50% per month and executed the pronote and receipt in his (plaintiff) favour, who

himself scribed these documents at the instance of the defendant. Gurdev Singh also signed the same as marginal witness. Plaintiff Raj Kumar has

supported his case on all vital counts, while appearing as PW3.

Not only that, the plaintiff has also examined Dr. Inderjit Singh, Handwriting and Finger Print Expert (PW2), who compared the admitted and

disputed thumb impressions on pronote and receipt and opined, vide his report (Ex.P3) that the disputed thumb impressions tally with the specimen

thumb impressions of Ram Singh and they are of one and the same person. Thus, it would be seen that the execution of pronote, receipt and

consideration of loan amount is duly proved on record, particularly when the defendant has admitted that he had borrowed the amount in question

from the plaintiff. The mere denial of execution of pronote and receipt by the defendant is not sufficient to discard the oral as well as documentary

evidence brought on record by the plaintiff in this respect.

In this manner, to me, the Courts below have rightly accepted the claim of the plaintiff and negatived the plea of the defendant. Hence, the

contrary arguments of the learned Counsel for the appellant-defendant ""stricto sensu"" deserve to be and are hereby repelled under the present set

of circumstances.

No other meaningful argument has been raised by the learned Counsel for the appellant-defendant to assail the findings of the Courts below.

All other arguments, relatable to the appreciation of evidence, now sought to be urged on his behalf, in this relevant connection, have already been

duly considered and dealt with by the Courts below.

Moreover, the trial Court as well as the first Appellate Court has taken into consideration and appreciated the entire relevant evidence brought

on record by the parties in the right perspective. Having scanned the admissible evidence in relation to the pleadings of the parties, the Courts

below have recorded the well-articulated and well-reasoned concurrent findings of fact that the execution of pronote (Ex.P1), receipt (Ex.P2) and

passing of the consideration amount stands duly proved on record and defendant failed to prove the repayment of loan amount. Such pure

concurrent findings of fact based on the evidence, cannot possibly be interfered with by this Court, unless and until, the same are illegal and

perverse. No such patent illegality or legal infirmity has been pointed out by the learned Counsel for the appellant-defendant, so as to take a

contrary view, than that of well reasoned decision already arrived at by the Courts below, in this regard.

Meaning thereby, the entire matter revolves around the re-appreciation and re-appraisal of the evidence on record, which is not legally

permissible and is beyond the scope of second appeal. Since no question of law, muchless substantial, is involved in the second appeal, so, no

interference is warranted, in the impugned judgments/decrees of the Courts below as contemplated u/s 100 CPC, in the obtaining circumstances of

the present case.

No other legal point, worth consideration, has either been urged or pressed by the learned Counsel for the appellant-defendant.

In the light of the aforementioned reasons, as there is no merit, therefore, the instant appeal is hereby dismissed.