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2009 DIGILAW 594 (PNJ)

Gurdeep Singh v. Chaudhary Hardayal

2009-03-26

VINOD K.SHARMA

body2009
Judgment Vinod K.Sharma, J. 1. This regular second appeal is directed against the judgments and decree dated 22.11.2007 passed by the learned lower appellate court vide which suit filed by the plaintiff/respondent for the recovery of Rs. 1,93,262.80 along with future interest stands decreed. 2. The plaintiff/respondent brought a suit on the pleadings that it is running a business of commission agency and a number of agriculturists sell their agricultural produce to it. The defendant- appellant besides being T-Mate in Government service is also an agriculturist as he takes the agricultural land on lease and also takes land from other land-owners for cultivation on share of produce. 3. The case of the plaintiff was that defendant approached the plaintiff and got opened an account with the plaintiff firm. Father Shri Jangir Singh and younger brother Nirmal Singh of defendant also opened their separate accounts with the plaintiff firm. The plaintiff was requested for advancing loan which was advanced from time to time by making Bahi entries. It is further pleaded that on the date of filing the suit a sum of Rs. 1,29,140/- was standing towards loan which was neither repaid nor the defendant/appellant sold his agricultural produce. It was also the case set up by the plaintiff/respondent that the balance in the ledger book was struck daily. 4. The suit was contested by the defendant-appellant wherein the case set up by the plaintiff/respondent was denied. It was claimed that the accounts books were bogus and fabricated, as account was only in the name of his father namely Shri Jangir Singh. That the defendant had only 2 kanals of land, thus, there was no question of making promise of sale of agricultural produce. The suit was said to be barred under Order 2 Rule 2 of the Code of Civil Procedure (for short the Code), as in the suit filed by the plaintiff against his brother and father, the relief claimed in the present suit was not included. It was also the case of the defendant that the plaintiff concealed the factum of selling paddy through its agency on 22.10.1995 in the account of Jangir Singh, the weight of which was 40 quintals 98 kilograms and the same was sold at the rate of Rs. 395/- per quintal and a sum of Rs. 16,187.10 was realised by the plaintiff. Certain other transactions were also alleged. 5. 395/- per quintal and a sum of Rs. 16,187.10 was realised by the plaintiff. Certain other transactions were also alleged. 5. Learned courts below on appreciation of evidence recorded a concurrent finding of fact holding that the defendant-appellant was advanced loans from time to time and principal amount claimed was outstanding against the defendant/appellant. 6. The suit was accordingly decreed for the recovery of Rs. 1,93,262.80. However, learned trial court did not grant interest at the rate of 18 per cent per annum as claimed. The suit was decreed with pendente lite and future interest till realization at the rate of 12 per cent per annum. 7. In appeal while affirming the judgment and decree passed by the learned trial court, the learned lower appellate court reduced the rate of interest. Learned lower appellate decreed the suit with interest at the rate of 12 per cent per annum pendente lite i.e. till the passing of the decree and future interest at the rate of 8 per cent till realization. 8. Mr. L.N. Verma, learned counsel appearing on behalf of the appellant contends that this appeal raises the following substantial question of law for consideration of this court :- 1. Whether the learned courts below committed an error in fixing the onus of proving the case on the defendant/appellant even though the claim was asserted by the plaintiff? 2. Whether the judgments and decree passed by the learned courts below are the outcome of misreading of evidence, thus perverse ? 3. Whether the learned courts below acted in violation of statutory provisions of law in granting interest beyond 6% ? 9. Mr. L.N. Verma, learned counsel appearing on behalf of the appellant in support of the substantial questions of law that onus was wrongly placed, referred to the findings recorded by the learned lower appellate court, holding therein that once the entries were produced on record it was for the appellant to prove that Bahi did not contain his signatures. Reference in support was made to para No. 10 of the judgment of the learned lower appellate court which reads as under :- "10. There is merit in the contention of learned counsel for the respondent. Reference in support was made to para No. 10 of the judgment of the learned lower appellate court which reads as under :- "10. There is merit in the contention of learned counsel for the respondent. The account books of the respondent are maintained regularly and the same are admissible in evidence under Section 34 of the Evidence Act and these entries have been corroborated by the scribe and the proprietor of the said firm. No doubt the appellant has denied his signatures on these entries and the respondent failed to get the same compared with the admitted signatures of the appellant but the appellant was at liberty to get the same compared with his admitted signatures but this has not been done by him. Not only this the science of hand writing is not a conclusive one and the court is at liberty to peruse the disputed signatures and can firm the opinion. In the present case the appellant has signed the entries which have been effected in the account books of the firm and moreover younger brother of the appellant has also admitted that the appellant also takes land on lease and on share and in this way it is crystal clear that the appellant had opened an account with the firm and had obtained advances and then failed to make the payment of same and in this way issue No. 1 has rightly been decided in favour of the respondent against the appellant. I also uphold the findings of learned lower court on this issue." On consideration of the matter, I find no force in the contention raised by the learned counsel for the appellant. 10 Learned courts below have not put the burden of proof on the defendant- appellant as contended. The Bahi entries were exhibited by invoking Section 34 of the Evidence Act read with the fact that the plaintiff proved the said entries by producing the writer of the Bahi and also proving the fact that the payment was made in token whereof the plaintiff has signed. 11. The Bahi entries were exhibited by invoking Section 34 of the Evidence Act read with the fact that the plaintiff proved the said entries by producing the writer of the Bahi and also proving the fact that the payment was made in token whereof the plaintiff has signed. 11. It was in view of the positive evidence brought on record, that learned courts below were pleased to record that once the case of the plaintiff was proved, it was for the defendant to have examined an expert to prove that Bahi entry is not bearing his signatures specially when it was the stand of the defendant that the entries were forged and fictitious entries. It was the case that the defendant/appellant had not taken any loan from the plaintiff/respondent. The first question of law is answered against the defendant/appellant. 12. Learned counsel for the appellant on the second substantial question of law contended that the learned courts below have wrongly held the appellant to be an agriculturist because he owns 2 kanals of land. This could not be said to be fit for agricultural pursuits. 13. It is also the contention of the learned counsel for the appellant that there was no other evidence on record to prove that the defendant/appellant was taking land on lease and doing agricultural pursuits as set up by the plaintiff/respondent. The judgments and decree passed by the learned courts below, therefore, are the outcome of misreading of evidence, thus, perverse. 14. This contention also, cannot be accepted in view of the stand taken by the defendant/appellant himself that a paddy was sold through the plaintiff/respondent, furthermore there was admission by the brother of the appellant that the appellant used to cultivate land on lease and also on batai. 15. The second substantial question of law is also answered against the defendant/appellant. It is held that the judgments and decree passed by the learned courts below cannot be said to be the out come of misreading of evidence. 16. On the third substantial question of law, learned counsel for the appellant contends that the case set up by the plaintiff himself was that the defendant/appellant was an agriculturist and that he raised loan which was to be adjusted by sale of agricultural produce. 16. On the third substantial question of law, learned counsel for the appellant contends that the case set up by the plaintiff himself was that the defendant/appellant was an agriculturist and that he raised loan which was to be adjusted by sale of agricultural produce. The defendant-appellant though disputed this fact but the plaintiff in order to succeed was to stand on its own legs and prove that the defendant was an agriculturist. There is force in this contention of the learned counsel for the appellant. By way of statutory instructions, it has been laid down that agricultural loan cannot carry interest of more than 6 per cent. Even though it is not disputed that the defendant/appellant had agreed to repay the loan with interest at the rate of 18 percent per annum, however, said agreement/stipulation being against the statutory instructions and settled principles of law that agricultural loan cannot carry interest of more than 6 per cent per annum, could not be accepted. 17. Learned courts below, therefore, were wrong in decreeing the suit filed by the plaintiff, to recover the principal amount with interest at the rate of 12 per cent per annum till filing of the suit and thereafter future interest at the rate of 8 per cent per annum. The plaintiff/respondent could only claim interest at the rate of 6 per cant per annum on the loan advanced as it was an agricultural loan. The third substantial question of law is answered in favour of the defendant- appellant and it is held that the plaintiff/respondent is entitled to a decree for the recovery of Rs. 1,29,140/- (one lac twenty nine thousand one hundred and forty only) as principal amount along with interest at the rate of 6% cent per annum from the date of advancement of the loan till realization. With this modification in the rate of interest the appeal is disposed off.