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Himachal Pradesh High Court · body

2012 DIGILAW 714 (HP)

Murti Ram v. Sita Ram

2012-10-12

RAJIV SHARMA

body2012
Judgment Rajiv Sharma, J. This Regular Second Appeal is directed against the judgment and decree dated 27.12.2001 rendered by the learned District Judge, Shimla in Civil Appeal No.119-S/13 of 2000. Appellant Sita Ram died during the pendency of the suit and his legal representatives have been brought on record. 2. Material facts necessary for the adjudication of this Regular Second Appeal are that the respondent-plaintiff (hereinafter referred to as the ‘plaintiff for convenience sake) filed a suit against the original defendant Sh. Sita Ram (hereinafter referred to as ‘defendant’ for convenience sake) on the ground that he and defendant agreed verbally to execute the work of road cutting in the area of Bhaloon Kainchi and Khanola road jointly under the H.P.P.W.D. (B&R) Division at Rohru in the years 1985-86-87, which was entrusted to them. Plaintiff invested the entire amount in the partnership venture necessary to execute the works as the defendant showed his inability to contribute any money. Plaintiff in good faith spent the entire amount for executing the works. It was agreed between the parties that in case of any loss is incurred thereon, it shall be borne by the parties as also the profits shall be distributed equally after the execution of the works and final settlement. The accounts were settled between the parties and it was found that a loss had incurred. It is also stated that the defendant has to pay a sum of ` 27,000/- as per settlement of accounts. Defendant executed document/instrument on 5.2.1990 vide Ex.PW-2/A in favour of the plaintiff in presence of witnesses, namely, PW-2 Sunder Singh and PW-3 Moti Ram, acknowledging his liability to pay an amount of ` 27,000/- with interest @ 1% per mensem. Defendant paid a sum of ` 7,000/- till the date of filing of the suit and he happened to confirm the balance amount payable with interest on various dates latest on 14.11.1996 and since the defendant has failed to discharge his liability, he was served with a registered notice Ex.P-1 dated 26.5.1999, but to no avail. It is in these circumstances, the suit was filed for recovery of ` 49,450.10 paise. 3. Suit was contested by the defendant. Defendant has denied that he has entered into verbal agreement to execute the work of road cutting. He has also denied that the work was also entrusted to them by the Public Works Department. It is in these circumstances, the suit was filed for recovery of ` 49,450.10 paise. 3. Suit was contested by the defendant. Defendant has denied that he has entered into verbal agreement to execute the work of road cutting. He has also denied that the work was also entrusted to them by the Public Works Department. The factum of partnership between the parties was also controverted. According to him, he did not execute the document/instrument on 5.2.1990 in favour of the plaintiff in the presence of witnesses nor he acknowledged the liability to pay a sum of ` 27,000/- with interest @ 1% per month nor made any promise to pay the same to the plaintiff in the presence of any witnesses. He also denied that he has paid a sum of ` 7,000/- to the plaintiff through installments on various dates. 4. Issues were framed by the trial court on 5.5.2000. Trial court decreed the suit with costs. Plaintiff was held entitled for recovery of ` 49,450.10 paise with future interest @ 18% per annum from the date of filing the suit till the realization of decreetal amount. Defendant preferred an appeal before the District Judge, Shimla. He partly allowed the same on 23.10.2000. Hence, the present Regular Second Appeal against the judgment and decree dated 23.10.2000. It was admitted on the following substantial question of law: “Whether the findings of the courts below are based on misreading of evidence and misconstruction of document Ex.PW-2/A? 5. Mr. Rakesh Dhaulta has vehemently argued that both the courts below have misread and misconstrued document Ex.PW-2/A dated 5.2.1990. According to him, this document was never executed between the parties. 6. Mr. Romesh Verma has supported the judgments and decrees passed by both the courts below. 7. I have heard the learned counsel for the parties and have perused the records and pleadings carefully. 8. Plaintiff has appeared as PW-1. According to him, defendant was his partner for undertaking work of cutting in Rohru Division in 1985-86-87 of Bhaloon Kainchi and Khanola road. He invested the money. Defendant has not spent any money. Defendant told him that he has no money and asked him to invest the money. The loss and profit of the parties was equal. Parties suffered loss while undertaking the work. Settlement of accounts has also taken place. Defendant had to pay him a sum of ` 27,000/- towards losses. He invested the money. Defendant has not spent any money. Defendant told him that he has no money and asked him to invest the money. The loss and profit of the parties was equal. Parties suffered loss while undertaking the work. Settlement of accounts has also taken place. Defendant had to pay him a sum of ` 27,000/- towards losses. He did not pay this amount. The document was prepared on 5.2.1990 between the parties. This was executed in the presence of Dhamia and PW-2 Sunder Singh and PW-3 Moti Ram. This was scribed at the instance of defendant. According to him, Sunder Singh has read over the contents of mark ‘X’ (Ex.PW-2/A) to the defendant. Defendant after admitting the contents of Ex.PW-2/A to be correct signed the same. Thereafter witness Moti Ram also signed and Dhamia Ram put his thumb impression. The witnesses signed and put their thumb impression in presence of defendant. Defendant has paid to him a sum of ` 4,000/-to him on 12.12.1990 which he endorsed on the reverse side of the document. He has also initialed the same. He has paid a sum of ` 1,000/- to him on 25.11.1993. Endorsement to this effect has also been made on the reverse side of the document and the same was also initialed by the defendant. 9. PW-2 Sunder Singh has deposed that he new the parties. He has scribed Ex.PW-2/A. It was written at the instance of defendant. Witnesses Dhamia and Moti Ram were also present at that time. He has read over the contents of the document Ex.PW-2/A to the defendant. Defendant after admitting the contents of Ex.PW-2/A to be correct signed the same. Witness Dhamia has also put his thumb impression on the same. Defendant has agreed by way of Ex.PW-2/A to pay a sum of ` 27,000 to the plaintiff with 1% interest. Moti Ram also signed the document. 10. PW-3 Moti Ram has deposed that he has signed Ex.PW-2/A. He was working as Junior Basic Trained Teacher. He has signed the document going through the contents of the same. 11. DW-1 Murti Ram has deposed that he never entered into partnership with the plaintiff in the years 1985-1987. Plaintiff has suffered no loss. Plaintiff has not invested any amount. The accounts were never settled with the plaintiff. He has never executed any pronote on 5.2.1990. He has signed the document going through the contents of the same. 11. DW-1 Murti Ram has deposed that he never entered into partnership with the plaintiff in the years 1985-1987. Plaintiff has suffered no loss. Plaintiff has not invested any amount. The accounts were never settled with the plaintiff. He has never executed any pronote on 5.2.1990. He has never agreed to pay a sum of ` 27,000/- to the plaintiff with interest @ 1%. He never signed the pronote. He never paid any amount to the plaintiff on 12.12.1990 or 25.11.1993 or 5.10.1996 or 14.11.1996. 12. DW-2 Dhamia has deposed that no document was executed in his presence by the defendant in favour of the plaintiff. He has never put his thumb impression on any document. He has admitted that defendant is his nephew. 13. Plaintiff has duly proved the execution of document Ex.PW-2/A. It was scribed by PW-2 Sunder Singh in presence of witnesses PW-3 Moti Ram and Dhamia. Defendant has simply denied the execution of the document. However, he has not denied his signatures on the reverse side of the document on 12.12.1990, 25.11.1993 and 14.11.1996. It is evident from the reading of Ex.PW-2/A that accounts were settled between the parties. Defendant has executed Ex.PW-2/A by accepting the accounts. Defendant has paid as per Ex.PW-2/A a sum of ` 4,000/-to the plaintiff on 12.12.1990. Thereafter, he has paid a sum of ` 1,000/- to the plaintiff. This entry was initialed by the defendant on 25.11.1993. He has also paid a sum of ` 2,000/- to the plaintiff through Sh. Virender Singh on 5.10.1996. Defendant has acknowledged the liability of balance amount of ` 39,879.10 on 14.11.1996 by affixing his signatures. Plaintiff has served the defendant with notice Ex. P-1. Ex.PW-2/A dated 5.2.1990 cannot be treated as promissory note merely because there is an expressed promise to pay the amount mentioned in the document together with interest. Defendant has acknowledged the liability to pay a sum of ` 39,879.10 as on 14.11.1996 with interest at the stipulated rate, failing which he agreed to pay the amount together with interest and litigation expenses without any condition. This document was an agreement. Both the courts below have correctly appreciated Ex.PW-2/A. 14. In view of observations and discussions made hereinabove, there is no substantial questions of law in the Regular Second Appeal and the same is dismissed. This document was an agreement. Both the courts below have correctly appreciated Ex.PW-2/A. 14. In view of observations and discussions made hereinabove, there is no substantial questions of law in the Regular Second Appeal and the same is dismissed. Pending application(s), if any, also stands disposed of. There shall, however, be no order as to costs.