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2010 DIGILAW 495 (PNJ)

Kuldeep Singh v. Harmander Singh

2010-01-20

RAKESH KUMAR JAIN

body2010
Judgment Rakesh Kumar Jain, J. 1. The defendant is in second appeal in a suit filed by the plaintiff for recovery of an amount of Rs.5,08,028/- on the basis of Hundi dated 30.5.1998. 2. The plaintiff is a farmer whereas defendant is a commission agent, who had taken loan from the plaintiff for the purpose of his business. 3. The defendants case is that a compromise has been effected between the parties for Rs. 1,86,000/- which was paid by the defendant to the plaintiff in the presence of Angrej Singh, counsel for the plaintiff against a receipt of Rs.1,86,000/- and amount of Rs.14,000/- was paid in the case of Paramveer Kaur v. Kuldeep Singh which was already withdrawn by Paramveer Kaur on 18.2.2002. After that on 21.2.2002, the parties appeared in the Court of Sh. K.K.Bansal, Civil Judge, Moga, and requested for recording the statement of the parties, but the Court had directed the parties to appear before the Lok Adalat, where the. plaintiff had resiled from making the statement. 4. On the pleadings of the parties, following issues were framed:- 1. Whether the plaintiff is entitled to recover the suit amount along-with interest on the basis of writing dated 30.5.1998 as prayed for? OPP 2. Whether the suit of the plaintiff is not maintainable in the present form? OPD 3. Whether the suit of the plaintiff is bad for non joinder of necessary parties? OPD 4. Whether the plaintiff has got no locus standi to file the present suit? OPD 5. Whether plaintiff is estopped to file the present suit by his own act and conduct? OPD 6. Relief: 5. In order to prove his case, plaintiff had examined Bhupinder Singh, Addl. Ahlmad of the Court of Sh. Tarsem Mangla, PCS, the then Addl.Civil, Judge (Senior Division), Moga as PW1; Anil Kumar Gupta, Handwriting and Fingerprint Expert, Fazilka as PW-2; Major Singh as PW-3, Harminder Singh himself appeared as PW-4 and after tendering copy of notice Ex.P8, postal receipt Ex.P-9, notice Ex.P-10 and postal receipt Ex.P-11, closed his evidence. 6. Ahlmad of the Court of Sh. Tarsem Mangla, PCS, the then Addl.Civil, Judge (Senior Division), Moga as PW1; Anil Kumar Gupta, Handwriting and Fingerprint Expert, Fazilka as PW-2; Major Singh as PW-3, Harminder Singh himself appeared as PW-4 and after tendering copy of notice Ex.P8, postal receipt Ex.P-9, notice Ex.P-10 and postal receipt Ex.P-11, closed his evidence. 6. In order to rebut the evidence of the plaintiff, defendant examined Tej Kaur as DW-1; Desa Singh as DW-2; Harbans Singh as DW-3; Balbir Singh as DW-4, Partap Singh as DW-5, Kuldip Singh himself stepped into the witness box as DW-6 and after tendering documents copy of judgment dated 19.2.2005 as Ex.D2, statement of parties mark A, copy of bank statement mark B, C, D, copy of statement in the Court dated 18.2.2003 Mark E, copy of order dated 18.2.2003 Ex.D3, copy of judgment dated 03.3.2003 as Ex.D4, Decree sheet Ex.D5, copy of judgment dated 18.2.2003 Ex.D6, decree sheet Ex.D7, compromise Mark G, partnership deed mark H. receipt mark I, closed his evidence. 7. Learned trial Court vide its judgment and decree dated 16.1.2007 decreed the suit of the plaintiff holding him entitled to recover Rs.4,53,597/-, on the basis of a writing/Hundi dated 30.5.1998 (Ex.P7) along-with interest @ 12% per annum from the date of writing/Hundi dated 30.5.1998 till the date of judgment and decree. The plaintiff was also held entitled to future interest @ 6% per annum. 8. In appeal, judgment and decree of the trial Court was modified to the extent that the claim of the plaintiff of interest @ 2% per month with half yearly rests was found to be highly excessive and unjustified and as such, the plaintiff was held entitled to recover Rs.2,43,930/- borrowed by the defendant on 30.5.1998, Rs.27,000/- borrowed on 30.11.1998 alongwith interest @ 9% per annum from the date when it was borrowed by the defendant till the filing of the suit after making adjustment of Rs.18,771/- which was received on 30.11.2000 with future interest @ 6% per annum till realization. 9. Still aggrieved, the defendant is in second appeal in which it is argued that the matter has already been compromised between the parties in the suit in which the defendant had made payment to the plaintiff, therefore, nothing was left on account of payment. 10. At the time of notice of motion on 12.2.2008, operation of impugned judgment and decree was stayed. 10. At the time of notice of motion on 12.2.2008, operation of impugned judgment and decree was stayed. Plaintiff filed two applications i.e. C.M.Nos.7371-C of 2008 and 7372-C of 2008 seeking exemption from filing certified copies of Annexures and for vacation/modification of the order of stay dated 12.2.2008. 11. Notice in the applications was issued to which reply was filed by the defendant/appellant. 12. Learned counsel for the appellant has vehemently argued that the matter has already been compromised between the parties per Ex. Dl which was sought to be placed on record vide application filed under Order 41 Rule 27 of Code of Civil Procedure, 1908 (for short, CPC), but that was dismissed by the learned first Appellate Court without assigning any reason. It was also alleged that for just and appropriate decision of the case, evidence of Handwriting Expert and Angrej Singh was also required to be produced. 13. As against this, learned counsel for the respondent has argued that story of compromise propounded by the defendant is false on the face of it because the compromise is alleged to be dated 21.2.2002 but as per the orders recorded by the Courts below, no compromise was effected between the parties because on 21.2.2002 , following order was passed:- "Present: Mr. Angrej Singh, Advocate, for the plaintiff. Defendant Kuldip Singh in person. Defendant Kuldip Singh has appeared in person. Service is complete. The learned counsel for the plaintiff and the defendants state that a compromise talk is going on in between the parties and pray that the case be put up before the Lok Adalat. In view of the request of learned counsel of the plaintiff and defendant in person the file is ordered to be put up before the permanent Lok Adalat to be held on 2.3.2002. The parties are directed to appear before the permanent Lok Adalat on . 2.3.2002 Sd/- K.K.Bansal. C.J/ (J./D.), Moga 21.2.2002" On the adjourned date, i.e.2.3.2002, following order was passed:- "Present: Parties in person. Heard. Despite efforts no compromise could be reached between the parties as such file is ordered to be sent back to the court concerned for 20.3.2002 for regular trial. 2.3.2002 Sd/- K.K.Bansal. C.J/ (J./D.), Moga 21.2.2002" On the adjourned date, i.e.2.3.2002, following order was passed:- "Present: Parties in person. Heard. Despite efforts no compromise could be reached between the parties as such file is ordered to be sent back to the court concerned for 20.3.2002 for regular trial. Sd/- Lok Adalat 2.3.2002" 14 Learned counsel for the respondent has argued that had there been any compromise effected between the parties on 21.2.2002, as suggested by learned counsel for the appellant, it would have definitely been brought to the notice of the Court when the case was put up before the Lok Adalat on 2.3.2002, where both the parties had appeared in person. It is submitted that the order which has been recorded rather shows that despite efforts, no compromise could have been arrived at between the parties. 15. Learned counsel for the respondent has further argued that record of the Court cannot be belied by the defendant with his bald assertion. In this regard, he made a reference to a judgment of the Apex Court in the case of State of Maharashtra v. Ramdas Shrinivas Nayak and another, A.I.R. 1982 Supreme Court 1249(1). 16. It is submitted that the defendant has not come to the Court with clean hands because on the one hand, he has stated that he has never received any loan from the plaintiff and on the other hand, it is alleged by him that he has returned Rs.l,86,000/-by way of compromise. 17. I have heard learned counsel for the parties and have perused the record with their assistance. 18. The basic dispute raised by learned counsel for the appellant is that the matter has been compromised between the parties on 21.2.2002 in the presence of Angrej Singh, Advocate. It is also his case that an application filed under Order 41 Rule 27 C.P.C. for the purpose of examination of Angrej Singh and Handwriting Expert to prove signatures of the plaintiff on the compromise (Ex.Dl) has been illegally dismissed by the learned first Appellate Court. 19. Insofar application filed under Order 41 Rule 27 of C.P.C. is concerned, the learned lower Appellate Court has rightly held that defendant had examined as many as six witnesses before closing his evidence after tendering documents. He was fully aware of his case and now he cannot be allowed to fill up the lacuna of his case. 19. Insofar application filed under Order 41 Rule 27 of C.P.C. is concerned, the learned lower Appellate Court has rightly held that defendant had examined as many as six witnesses before closing his evidence after tendering documents. He was fully aware of his case and now he cannot be allowed to fill up the lacuna of his case. I do not find any error in the approach of learned first Appellate Court in this regard and as such, the order passed on application filed under Order 41 Rule 27 C.P.C. is upheld. 20. However, the main issue in this case is whether there was a compromise effected between the parties or not?. 21. In this regard, it would be suffice to say that on 02.3.2002, when the matter came up before the Lok Adalat, it was recorded in the order in the presence of the parties who appeared in person that "despite efforts, no compromise could be arrived between the parties". Had there been a compromise between the parties, it would have definitely been brought to the notice of the Lok Adalat by the defendant and the Lok Adalat would not have sent this case back to the trial Court for the purpose of regular hearing. In this regard, in State of Maharashtra v. Ramdas Shrinivas Nayak and another (supra), it is held by the Apex Court that "the Court is bound to accept the statement of Judges recorded in their judgment, as to what transpired in Court. It cannot allow the statement of the Judges to be contradicted by statement at the bar or by affidavit and other evidence. If the Judges say in their judgment that something was done, said or admitted before them, that has to be the last word on the subject. The principle is well settled that statements of fact as to what transpired at the hearing, recorded in the judgment of the court, are conclusive of the facts so stated and no one can contradict such a statements by affidavit or other evidence. The principle is well settled that statements of fact as to what transpired at the hearing, recorded in the judgment of the court, are conclusive of the facts so stated and no one can contradict such a statements by affidavit or other evidence. If a party thinks that the happenings in Court have wrongly been recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the Judges , to call the attention of the very Judges, who have made the record to the fact that the statement made with regard to his conduct was a statement that had been made in error. That is the only way to have the record corrected. If no such step is taken, the matter must necessary end there". 22. In the present case, the order recorded by the Lok Adalat on 02.3.2002 clinches the issue between the parties as the said order was recorded in the course of hearing of the case and has not been sought to be corrected if it was wrongly recorded, 23. Another argument has been raised by learned counsel for the appellant about the suit having barred by limitation. In this, regard a categoric finding of fact has been recorded by the learned Court below which reads as under:- "As per record, the plaintiff gave loan to the defendant at two occasions on 30.5.1998 and 30.11.1998. As per the writing Ex.P7 admitted by the. defendant himself a sum of Rs.18,761/- was received by the plaintiff on 30.11.2000 which shows the acknowledgment of the defendant regarding the amount due towards him. Therefore, from this date, the suit filed by the plaintiff for recovery on 12.12.2002 is within the period of limitation. 24. In view of the above, I do not find any error in the judgment and decree of the learned first Appellate Court. No question of law much less substantial is involved in the present appeal and the same is hereby dismissed with costs.