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2005 DIGILAW 1325 (PNJ)

Jagir Singh v. Hukam Chand

2005-12-22

ASHUTOSH MOHUNTA

body2005
JUDGMENT Ashutosh Mohunta, J. - Jagir Singh defendant has filed this appeal wherein challenge has been made to the judgment and decree dated 22.9.1999 passed by the Civil Judge (Junior Division), Patiala, decreeing the suit for recovery filed by Hukam Chand plaintiff, as well as the judgment and decree dated 4.9.2001 passed by the Additional District Judge, Patiala, whereby his (defendants) appeal has been dismissed. 2. In brief, the facts giving rise to the present appeal are that Hukam Chand plaintiff filed a suit for recovery of Rs. 90,000/- along with interest at the rate of 1.5% per month against Jagir Singh defendant. It was alleged in the plaint that the defendant had borrowed a sum of Rs. 90,000/- alongwith interest at the rate of 1.5% per month by executing a pronote and receipt on 30.4.1993 but the same has not been repaid to him despite several demands having been made in respect thereof. The defendant contested the suit taking the plea of denial simpliciter. It was pleaded by him that he had never executed any pronote or receipt as alleged in the plaint nor he had borrowed the sum of Rs. 90,000/-. It was further stated that the defendant-appellant was selling his crop on the shop of M/s. Krishan Chand and Brothers where Hukam Chand plaintiff was a partner and during that period the defendant used to advance money for agricultural purposes. During that process the plaintiff might have got the blank papers thumb marked from the defendant and later on converted them into pronote and the receipt. Thus, according to the defendant, the said pronote and the receipt were without consideration. On the pleadings of the parties, the trial Court framed the following issues :- 1. Whether the plaintiff is entitled to recover Rs. 1,35,000/- as prayed for ? OPP. 2. Whether the defendant agreed to pay interest at the rate of 1.5% per month as claimed by the plaintiff ? OPP. 3. Whether the defendant has never executed any pronote and receipt dated 30.4.1993 in favour of the plaintiff ? OPD. 4. Whether the defendant is entitled to special costs of Rs. 5,000/- ? OPD. 5. Relief. After hearing the counsel for the parties and on examining the evidence adduced on record, the trail Court decided issue Nos. 1 and 2 in favour of the plaintiff and issue Nos. 3 and 4 against the defendant. OPD. 4. Whether the defendant is entitled to special costs of Rs. 5,000/- ? OPD. 5. Relief. After hearing the counsel for the parties and on examining the evidence adduced on record, the trail Court decided issue Nos. 1 and 2 in favour of the plaintiff and issue Nos. 3 and 4 against the defendant. Ultimately, the suit of the plaintiff was decreed in his favour. However, the rate of interest was fixed at 12% per annum. The appeal filed by the defendant was dismissed by the Additional District Judge, Patiala, vide judgment and decree dated 4.9.2001. Now the defendant has filed the present appeal wherein challenge has been made to the judgments and decrees passed by both the Courts below. 3. The two-fold argument raised by learned counsel for the appellant is that the pronote and the receipt were insufficiently stamped and the trial Court has failed to frame the following issue :- "Whether the pronote and receipt dated 30.4.1993 has not been duly stamped as per the law ?" It has been contended by Mr. P.K. Gupta, learned counsel for the appellant, that as per Article 53 of the amended Stamp Act, the pronote required the (sic) pronote in question. In view of this, the contention of the learned counsel for the appellant is that the pronote in question was not a valid document and no decree in favour of the plaintiff ought to have been passed. In support of his contention Mr. Gupta has placed reliance on a Division Bench judgment in Firm Gobind Ram Dayal Dass and Co., Yamunanagar and others v. Sita Devi alias Sita Rani Saluja, 1976 PLR 913; and a Single Bench judgment in Rajinder Tandon v. Thomas Nasir Masih, 1999(1) Civil Court Cases 702. 4. The contention raised by Mr. Gupta has vehemently been controverted by Mr. Arun Sanghi, learned counsel appearing on behalf of the respondent. It has been contended by Mr. Sanghi that at the time when the pronote and the receipt in question were executed, the amended Stamp Act had not come in force. Another contention raised by him is that no application for framing of additional issue had ever been made by the defendant either before the trial Court or before the Additional District Judge. Sanghi that at the time when the pronote and the receipt in question were executed, the amended Stamp Act had not come in force. Another contention raised by him is that no application for framing of additional issue had ever been made by the defendant either before the trial Court or before the Additional District Judge. Thus, according to the learned counsel for the respondent, in the absence of any application in this regard either before the trial Court or before the lower appellate Court, appellant is estopped from raising this issue at this belated stage. 5. The following short question of law arises for consideration in the present appeal :- "Whether or not the pronote (Ex. P-1) and the receipt (Ex. P-2) were sufficiently stamped at the time of their execution and thus, were valid for decreeing the recovery suit in favour of the plaintiff-respondent ?" 6. I have heard the learned counsel appearing on behalf of the rival parties and perused the relevant provision of the Indian Stamp Act, 1899. As per amended sub-clause (2) of Clause (b) of Article 53 of the Indian Stamp Act a stamp of One Rupee has been substituted in place of "Twenty paise". However, the Court cannot overlook the point that the pronote and the receipt in question were executed on 30.4.1993/20.4.1994, whereas the amended provision came in force with effect from 13.5.1994. Thus, it cannot be said that the pronote (Ex. P-1) and the receipt (Ex. P-2) were insufficiently stamped on the date of their execution. In view of this factual position, the ratio of Division Bench authority in Firm Gobind Ram Dayal Dass and Co.s case (supra), cited by Mr. Gupta is not (sic) herein. 7. So far as the second argument with regard to the non-framing of additional issue is concerned, it is nowhere proved that the defendant ever filed any application for framing of additional issue either before the trial Court or before the lower appellate Court. In view of this inaction on the part of the defendant, he cannot raise hue and cry at this belated stage. In view of this inaction on the part of the defendant, he cannot raise hue and cry at this belated stage. Rather, the lower appellate Court in para 9 of its judgment has specifically mentioned that the appellant had "failed to prove and establish that pronote and receipt executed by him were not sufficiently stamped." In view of this finding of the lower appellate Court, the defendant cannot make any grouse that issue with regard to insufficiency of stamp on the pronote and the receipt was not framed as well as non-framing of additional issue. 8. Both the Courts below have concurrently held that the defendant had failed to prove that he had not executed the pronote (Ex. P-1) and the receipt (Ex. P-2). Rather it stood proved that the defendant had executed the said documents in the presence of the attesting witness Harbans Singh (PW-2) and the scribe Krishan Chand (PW-3). The plaintiff-respondent had even examined Navdeep Gupta (PW-4), Handwriting and Finger Print Expert. This witness has categorically stated that thumb impressions on pronote (Ex. P-1) and Receipt (Ex. P-2) are that of appellant Jagir Singh. On the other hand, the defendant-appellant did not himself appear in the witness-box to prove the non-execution of the said documents by him. In view of the above, I do not find any infirmity in the well-reasoned judgments and decrees passed by both the Courts below. Consequently, there is no merit in this appeal. It is, accordingly, dismissed. There shall, however, be no order as to costs. Appeal dismissed.