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Himachal Pradesh High Court · body

1998 DIGILAW 22 (HP)

KAILASH CHANDER KALIA v. VIJAY KUMAR

1998-03-20

P.K.PALLI

body1998
JUDGMENT P.K. PALLI, J.—This second appeal has been filed by the defendant laying challenge to the judgment and decree passed by the learned trial Court against him for the recovery of the suit amount as prayed for by the plaintiff. The appeal filed by him stands dismissed. 2. The facts are not in dispute. An amount of Rs. 15,000/- was borrowed on 12.9.1979 by the defendant from the plaintiff for which a pronote and a receipt Exhibits P-1 and P-2 were duly executed. The said promissory note and receipt were executed by one Dhan Raj scribe. The receipt of the amount and the execution of the pronote and the receipt are not denied by the defendant. It is further an admitted position that parties were related to each other and had good relations. 3. Defendant was carrying on the business of grocery shop, television, etc. for which he intended money which was advanced by the plaintiff. The version of the defendant is that after having obtained the loan he changed his mind and returned this amount to the plaintiff and obtained receipt on 30th September, 1979. Interestingly, this receipt was also scribed by Dhan Raj and is witnessed by one Dr. Ranjit Singh. Plaintiff has admitted his signatures on the receipt. It may be noticed that the plaintiff died soon after filing the suit and it has been prosecuted by his wife after his death. The version from the side of the plaintiff is that he was ill and had asked the defendant to get the renewal of his armed licence and for that purpose he gave him blank paper with his signatures and the defendant got executed a receipt on the said paper. 4. Shri N.K. Thakur, learned Counsel for the defendant while laying challenge to the impugned judgment and decree vehemently contends that additional evidence was placed on record before the first appellate Court to the effect that there was no armed licence in the name of the plaintiff and the story put by him for having given signatures on blank paper should not be accepted. Reliance is further placed on the statement of Dr. Ranjit Singh in whose presence the money is said to have been returned against receipt. Mr. Reliance is further placed on the statement of Dr. Ranjit Singh in whose presence the money is said to have been returned against receipt. Mr. Kuthiala learned Counsel appearing for the plaintiff-respondents contends that the receipt on the face of it does not inspire confidence and the defendant has miserably failed to prove on record that an amount of Rs. 15,000/- in fact was returned to the plaintiff. Besides he relies upon the observations made by the courts below in the impugned judgments. 5. After hearing the learned Counsel for the parties at length and on careful examination of the entire record and the impugned judgments, I am unable to agree with the contention raised by the learned Counsel for the defendant and I am of the considered opinion that there is no merit in this appeal. 6. It is an admitted position that the pronote remained with the plaintiff throughout on the basis of which the suit has been filed. In case the defendant had liquidated the suit amount, he should have insisted upon the return of the pronote which was never done. Perusal of the receipt does not inspire confidence Admittedly, no revenue stamp was available on that day and there is a note on the receipt by the scribe that it shall be affixed on the following day. I do not understand as to what was the immediate urgency or the payment of the amount in absence of the revenue stamp. Cross lines which have been affixed on the revenue stamp do not reach further on the paper and the end on the stamp itself. 7. It is further found on evidence that the plaintiff had issued legal notice to the defendant calling upon him to repay the loan amount and the version given by the defendant that he received only envelope containing nothing inside, is not acceptable. 8. So far as the additional evidence led by the defendant before the first Appellate Court is concerned, it does not create a doubt so far as the version given by the plaintiff is concerned. The plaintiff has not denied his signatures on the said receipt and as I look at the matter, it was incumbent upon the defendant to discharge the burden of proof to the satisfaction of the Court that in fact the amount was returned in cash. The plaintiff has not denied his signatures on the said receipt and as I look at the matter, it was incumbent upon the defendant to discharge the burden of proof to the satisfaction of the Court that in fact the amount was returned in cash. The plaintiff has not admitted the execution of this document. 9. As I look at the matter, I am of the opinion that the defendant should have examined the scribe Dhan Raj in order to prove the return of the loan in cash for due authenticity of the receipt in question. 10. I am further in agreement with the observation made by the learned first appellate Court that the language and the style of writing appearing on the receipt does go to cause an impression that the signatures of the plaintiff were already existing on it and the writing above it is subsequent with a deliberate effort to adjust the writing over the signatures of the plaintiff. Last 5-6 lines before the receipt signatures are narrow. 11. Learned Counsel Shri N.K. Thakur has thus not been able to persuade me to take a different view in the matter than the one concurrently arrived at by both the courts below. Pure and simple findings of fact have been recorded against the defendant on appreciation of evidence. No case is made out for interference by this Court in second appeal. The appeal is consequently ordered to be dismissed. There shall, however, be no order as to costs. Appeal dismissed.