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2007 DIGILAW 311 (PNJ)

Gian Chand v. Baldev Raj

2007-02-23

HEMANT GUPTA

body2007
JUDGMENT Hemant Gupta, J. - The defendant is in second appeal aggrieved against the judgment and decree passed by the learned Courts below whereby suit filed by the plaintiff for recovery of Rs. 63,477.06 i.e. Rs. 53,073.06 as principal amount and Rs. 10,405/- interest upto 31.08.1997, was decreed. 2. The suit of the plaintiff is based upon the entries in the account books whereby it was pointed out that the balance struck and found payable on 28.11.1996 was Rs. 53,072.06. The defendant is an agriculturist and the plaintiff is a Commission Agent. The defendant used to sell his agricultural produce at the shop of the plaintiff firm. 3. The dispute between the parties pertains to entry Exhibit P-19 for Rs. 80,000/- dated 1.11.1996. Vide the aforesaid entry, as per plaintiff, Rs. 80,000/- was borrowed by the defendant but was paid to his brother Sher Singh. Sher Singh has signed the account book acknowledging the receipt of the said amount. It was the stand of the defendant-appellant that Sher Singh is living separately from the defendant and the said amount of Rs. 80,000/- was not borrowed by the defendant and that Sher Singh has not received the said amount from the shop of the plaintiff and on behalf of the defendant. 4. Both the Courts below have not believed the said stand of the defendant and found that vide acknowledgment dated 13.11.1996, Exhibit P-13, the plaintiff has found that a sum of Rs. 28,072.06 is due and payable. After taking into consideration the subsequent transactions, it was found that the principal amount due is Rs. 53,072.06. 5. Learned counsel for the appellant has vehemently argued that Sher Singh has been examined as DW2 who has denied his signatures on entry Exhibit P-19 and deposed that he never borrowed any amount from the plaintiff, therefore, Rs. 80,000/- cannot be claimed by the plaintiff. However, it is a matter of appreciation of evidence whether a sum of Rs. 80,000/- was advanced to the defendant through Sher Singh or not. Both the Courts below have believed the stand of the plaintiff that, in fact, Rs. 80,000/- was borrowed by the defendant through Sher Singh. As a matter of fact, acknowledgment Exhibit P-13 and subsequent entries Exhibits P-14 and P-15 leave no manner of doubt that the total amount outstanding against the appellant is Rs. 53,072.06. Both the Courts below have believed the stand of the plaintiff that, in fact, Rs. 80,000/- was borrowed by the defendant through Sher Singh. As a matter of fact, acknowledgment Exhibit P-13 and subsequent entries Exhibits P-14 and P-15 leave no manner of doubt that the total amount outstanding against the appellant is Rs. 53,072.06. Thereafter, the amount of interest has been reflected in the said bahi entry. In view of the said acknowledgment, the stand of the defendant that an amount of Rs. 80,000/- was not received by him has not been rightly believed by both the Courts below. 6. Learned counsel for the appellant has referred to Ajay Chandra Bagchi and others v. M/s Harishpur Tea Co. (P) Limited, 1990 Civil Court Cases 826 (Gauhati) and State Bank of India v. Ramayanapu Krishna Rao, 1996(1) Civil Court Cases 255 (Orissa) to contend that a person cannot be charged with liability merely on the basis of entries in the account books. There is no dispute about the proposition laid down in the aforesaid judgments. As a matter of fact, the case of the plaintiff is not based upon merely on the basis of entries in the bahi. Plaintiff Baldev Raj has examined himself as PW1 and proved the transactions between the parties. PW3 Shri Anil Kumar Gupta, Handwriting Expert, has compared the disputed signatures of the defendant on the bahi entries including that of Exhibits P-13 to P-15. Therefore, it is not the bahi entries alone which have been taken into consideration. Such evidence has been taken as corroborative evidence between the parties. 7. Learned counsel for the appellant further contends that Courts below have erred in law in granting interest on the entire amount of Rs. 63477.06 at bank rate. The said amount is inclusive of pre-suit interest and, therefore, the plaintiff is not entitled to interest on the amount of interest already claimed. Still further, bank rate cannot be granted to the plaintiff. The plaintiff is not entitled to pendente lite and future interest more than 6% per annum as the transaction cannot be said to be commercial transaction. Even the said interest has to be granted on the principal amount i.e. Rs. 53,072.06. The said argument of learned counsel for the appellant could not be disputed in any cogent manner by the learned counsel appearing for the plaintiff. 8. Even the said interest has to be granted on the principal amount i.e. Rs. 53,072.06. The said argument of learned counsel for the appellant could not be disputed in any cogent manner by the learned counsel appearing for the plaintiff. 8. In view of the above, the impugned decree passed by the Courts below is modified. The suit of the plaintiff is decreed for the recovery of Rs. 63,477.06 along with interest at the rate of 6% per annum on the sum of Rs. 53,072.06 from the date of filing of suit till realization of decretal amount. 9. The appeal stands disposed of accordingly. Order accordingly.