Sher Singh vs M/S Jain Sales Corporation Commission ...
2024 Latest Caselaw 8928 P&H

Punjab-Haryana High Court

Sher Singh vs M/S Jain Sales Corporation Commission ... on 26 April, 2024

                                   Neutral Citation No:=2024:PHHC:057472




                                                           2024:PHHC:057472

RSA-2409-2023 (O&M)                                                 - 1-

      IN THE HIGH COURT OF PUNJAB AND HARYANA
                    AT CHANDIGARH.


108                                 RSA-2409-2023 (O&M)
                                    Date of decision: 26.04.2024.


Sher Singh                                                   ...Appellant.

                           Versus

M/s Jain Sales Corporation                                   ....Respondent.


                            ***

CORAM: HON'BLE MRS. JUSTICE SUKHVINDER KAUR
                ----

Present:     Mr. K.P.S. Virk, Advocate
             for the appellant.

                    ****

Sukhvinder Kaur, J.

The instant Regular Second Appeal has been filed by appellant/

defendant against the concurrent findings recorded by both the Courts

below vide which the suit of the plaintiff was decreed.

2. Brief facts of the case as per plaint are that plaintiff firm is a

proprietorship concern and the present suit is filed through its proprietor

Satish Kumar. The plaintiff firm carried on the business of commission

agent at Anaj Mandi, Safidon. The plaintiff firm maintained account books

in the regular course of business which were being produced before the

Sales Tax and Income Tax authorities. Defendant, who is an agriculturist

used to sell his wheat produce at the shop of the plaintiff. On 15.04.2013 the

defendant sold wheat worth Rs.67,207/- to the plaintiff and the transaction

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was duly recorded in Nakal Bahi. The plaintiff had paid amount of

Rs.67,207/- to the defendant on 24.04.2013. The defendant had borrowed

Rs.4,00,000/- on 25.04.2023, Rs.40,000/- on 01.05.2013 and Rs.2,50,000/-

on 08.05.2013 from the plaintiff firm, which transactions were recorded in

Rokar Bahi, duly signed by the defendant in English with endorsement in

Hindi. The defendant had agreed to repay the borrowed amount alongwith

interest @ 24% per annum. In the year 2013-14, the defendant had sold

paddy worth Rs.3,45,104/- to the plaintiff firm and entries of which were

made in the Nakal Bahi. The plaintiff firm had paid amount of Rs.3,45,104/-

to the defendant on 31.10.2013. On 31.10.2023, a sum of Rs.1,51,900/- had

accrued as interest @ 24% on the outstanding amount. So, in this way, a

total sum of Rs.8,41,900/- was due towards the defendant on 31.03.2014.

3. It was further averred that on 30.04.2014, the defendant had

borrowed a sum of Rs.4,50,000/- from the plaintiff and executed pronote

and receipt duly signed/ thumb marked in token of correctness thereof. The

said pronote were scribed by Kailash son of Ram Kumar, resident of

Safidon and was attested by Gurmukh Singh son of Gurbachan Singh,

resident of Rampura and Parveen Kumar son of Janak Raj, resident of

Village Singhala. The defendant agreed to repay the borrowed amount

alongwith interest @ 24% per annum on demand. On 30.04.2014, a sum of

Rs.76,919/- had accrued as interest on the outstanding amount. Thus, a total

sum of Rs.13,69,819/- was due towards the defendant. After May, 2014, the

defendant did not sell his agricultural produce to the plaintiff. The plaintiff

requested the defendant to repay the outstanding amount but to no avail.

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RSA-2409-2023 (O&M)                                             - 3-

Hence, the instant suit was filed.

4. Upon notice, defendant appeared and filed written statement by

taking preliminary objections regarding maintainability, cause of action,

estoppel, locus standi etc. It was also alleged that the defendant never

borrowed alleged amounts from the plaintiff at any point of time. The

entries of alleged amounts are forged and have been prepared by the

plaintiff by playing a fraud and under the pretext of receipt of payment of

the sold agricultural produce. The execution of pronote and receipt dated

30.04.2014 in favour of the plaintiff was also denied.

5. The suit of appellant/defendant was decreed by the trial Court,

vide judgment and decree dated 08.01.2018. The appeal preferred by the

appellant/ defendant before the First Appellate Court was upheld with a

slight modification, vide judgment and decree dated 02.02.2023. Hence, the

present Regular Second Appeal has been filed by the appellant/ defendant,

before this Court.

6. Learned counsel for the appellant/ defendant has contended that

the plaintiff has not successfully proved his case. Defendant had never

executed the pronote and receipt in question in favour of the plaintiff and

the alleged pronote and receipt were the result of fraud. The appellant/

defendant used to sell his agricultural produce at the shop of the plaintiff

and he had never borrowed the alleged amount at any point of time. He has

argued that when the defendant had sold crop worth lakhs of rupees at the

shop of the plaintiff and others, then question of borrowing the alleged

amount by defendant does not arise. The entries of the alleged amount were

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forged and fabricated.

7. I have heard learned counsel for the appellant and have gone

through the record thoroughly.

8. While appearing in the witness box as PW1, plaintiff Satish

Kumar has proved copies of Bahi entries as Ex.P3 to Ex. P15, pronote dated

30.04.2014 as Ex.P16 and receipt as Ex.P17. He has also proved the copy of

audit report as Ex.P18. The plaintiff has also examined Kailash Chand as

PW3, who had scribed the pronote and receipt Ex.P16 and Ex.P17. The

attesting witness Parveen Kumar has also proved the aforesaid documents

who has been examined as PW4.

9. Though, defendant has denied that on 25.04.2013, he had taken

loan of Rs.4,00,000/- from the plaintiff, but upon copy of Bahi entry Ex.P5,

he admitted the words written in Hindi language that he had taken loan from

him to meet with the agricultural expenses alongwith interest @ 2% per

month and the date is also in the handwriting of the defendant. He has also

identified his signatures in English language on the documents Ex.P4 and

Ex.P6, where it has been written in the handwriting of the defendant that he

had taken loan of Rs.40,000/- on 01.05.2013. After seeing the original

record of Ex.P7, he identified his handwriting and signatures at mark E, F

and G, and he had made the endorsement in Hindi language regarding the

loan availed on 08.05.2013 for a sum of Rs.2,50,000/-. He has also admitted

his signatures/ thumb impression on the documents Ex.P16 and Ex.P17 the

pronote and receipt dated 30.04.2014 respectively executed when an amount

of Rs.4,50,000/- was taken as loan from the plaintiff. Thus the conduct of

the defendant speaks volumes, as on the one hand, he has denied having

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availed loan from the plaintiff but on the other hand he has admitted his

signatures and thumb impressions on the record produced by the plaintiff

regarding availing of the loan amount and has also admitted his handwriting

endorsing the loan taken by him on different dates.

10. The execution of pronote and receipt in question has also been

duly proved on record by the plaintiff. The Bahi entries having been proved

by the plaintiff, the defendant was to prove the alleged fraud and

misrepresentation as alleged by him, which the defendant has miserably

failed to prove. Neither the said alleged fraud has been pleaded with the

material particulars as required in law nor any material has been produced

on record to prove such a plea.

11. Once the execution of pronote and receipt is proved then the

presumption under Section 118 (a) of the Negotiable Instruments Act, 1881

arises regarding passing of the consideration. The onus to rebut the said

presumption lies upon the defendant, but no cogent evidence has been

produced on record by the defendant to rebut the said presumption.

12. The defendant has also not been able to prove that the plaintiff

was a money lender, no material has been brought on record to substantiate

the alleged money lending transactions made by the plaintiff with general

public or with anybody else other than the defendant, in order to prove that

the plaintiff was dealing in money lending without having obtained a

license.

13. For the reasons recorded above, the present Regular Second

Appeal fails and is dismissed as it does not raise any question of law much

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less substantial question of law.

14. All pending applications, if any, also stand disposed of

accordingly.

(SUKHVINDER KAUR) JUDGE 26.04.2024.

komal


               Whether speaking/ reasoned       :      Yes/ No
               Whether Reportable               :      Yes/ No




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