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2012 DIGILAW 732 (PNJ)

Saroj Saini v. Saroj Bala

2012-05-21

L.N.MITTAL

body2012
JUDGMENT Mr. L.N. Mittal, J.: (Oral) - CM No. 6067.C of 2012 Allowed as prayed for. CM No. 6069.C of 2012 The application is allowed and Annexures P/1 and P/2 are taken on record subject to all just exceptions. RSA No. 2174 of 2012 Defendant Saroj Saini having lost in both the courts below has filed this second appeal. 2. Respondent – plaintiff Saroj Bala filed suit against defendant – appellant for recovery of Rs.49,000/- alleging that the defendant borrowed Rs.49,000/- from the plaintiff vide agreement dated 15.3.2001 and agreed to repay the same upto 14.3.2002, failing which the defendant also agreed to pay interest @ 18% per annum. The defendant failed to repay the amount as agreed, necessitating the filing of the suit. 3. The defendant denied the plaint averments. The defendant denied having taken any loan from the plaintiff or having executed any agreement. It was pleaded that the agreement is false and fabricated document. Various other pleas were also raised. 4. Learned Civil Judge (Junior Division), Ambala City vide judgment and decree dated 28.1.2010 decreed the plaintiff’s suit for recovery of Rs.49,000/- with interest thereon @ 6% per annum till recovery. First appeal preferred by defendant has been dismissed by learned Additional District Judge, Ambala vide judgment and decree dated 10.3.2012. Feeling aggrieved, defendant has filed this second appeal. 5. I have heard learned counsel for the appellant and perused the case file. 6. The plaintiff in order to prove her case appeared in the witness box as PW2 and examined Hitender PW1, an attesting witness of the agreement. Both of them have broadly stated according to the plaintiff’s version. 7. On the other hand, defendant examined Stamp Vendor Kantikaran DW1. He stated that stamp paper for the impugned agreement was purchased from him by the defendant. He also identified the signatures of the defendant in this regard. The defendant herself appeared as DW2 and stated according to the her version. 8. Plaintiff has led cogent evidence to prove her case. Plaintiff’s statement is supported by sworn testimony of PW1 Hitender, an attesting witness of the agreement Ex. P/1. Both of them stated that defendant borrowed Rs.49,000/- from the plaintiff and executed the aforesaid agreement. Their statements are further corroborated by defendant’s own evidence as Kantikaran, DW1, Stamp Vendor has stated that stamp paper for the impugned agreement was purchased from him by the defendant. P/1. Both of them stated that defendant borrowed Rs.49,000/- from the plaintiff and executed the aforesaid agreement. Their statements are further corroborated by defendant’s own evidence as Kantikaran, DW1, Stamp Vendor has stated that stamp paper for the impugned agreement was purchased from him by the defendant. In these circumstances, self serving statement of defendant is not sufficient to controvert the evidence of the plaintiff which is supported by testimony of the Stamp Vendor examined by the defendant herself. 9. Counsel for the appellant contended that the impugned agreement is infact pronote but does not bear requisite revenue stamps and is therefore, not admissible in evidence. Reference was made to section 33 of the Indian Stamp Act, 1899 to contend that it is the duty of the court to see that the instrument is duly stamped. Reliance in this regard was also placed on judgment of Hon’ble Supreme Court of India in M/s SMS Tea Estates Pvt. Ltd. vs. M/s Chandmari Tea Co. Pvt. Ltd., 2012(1) RCR (Civil) 305. It was also contended that deficiency of revenue stamps on pronote cannot be made good even under section 35 of the Indian Stamp Act. In support of this contention, reliance has been placed on Division Bench judgment of Kerala High Court in Sadasivan vs. B. Unnikrishnan Nair, 2012(2) RCR (Civil) 224. It was also contended that application Annexure P/2 was moved by defendant – appellant in the trial court that the suit is liable to be dismissal in view of violation of provisions of the Punjab Registration of Money Lenders Act, 1938 (in short, Money Lenders Act) by the plaintiff because the plaintiff is money lender and has no money lending licence under the Money Lenders Act. 10. I have carefully considered the aforesaid contentions but the same cannot be accepted. In the first instance, it cannot be said that impugned agreement is a pronote. Secondly no objection regarding the document being not sufficiently or properly stamped was taken when the document was admitted in evidence. Consequently, in view of section 36 of the Indian Stamp Act, no such objection can be raised at any subsequent stage. Consequently, the aforesaid objection that the document was not properly stamped and that the defect cannot be cured in respect of a pronote cannot be raised at this stage. 11. Consequently, in view of section 36 of the Indian Stamp Act, no such objection can be raised at any subsequent stage. Consequently, the aforesaid objection that the document was not properly stamped and that the defect cannot be cured in respect of a pronote cannot be raised at this stage. 11. As regards application Annexure P/2, no plea was taken in the written statement that plaintiff is money lender and has no money lending licence. Consequently, no such plea could be taken by way of application Annexure P/2. Order 8 Rule 9 and Order 6 Rule 17 of the Code of Civil Procedure stipulate that no new pleading shall be raised except by way of amendment of pleading and except by leave of the Court. Consequently, new plea sought to be taken by way of application Annexure P/2 could not be taken by way of such application because defendant had not raised this plea in written statement. The defendant at best could take this plea by amendment of written statement. If the defendant had moved any application for amendment of written statement to take the aforesaid plea, only then it could be decided whether the said amendment was permissible or not. On the basis of application, Annexure P/2, the defendant could not raise the aforesaid plea without seeking amendment of written statement. 12. For the reasons aforesaid, I find no merit in this appeal. Concurrent finding recorded by both the courts below to decree suit of respondent-plaintiff is fully justified by the evidence on record and is not shown to be perverse or illegal or based on misreading or misappreciation of evidence. Rather the said finding is the only reasonable finding that can be arrived at on appreciation of evidence on record. Consequently, the said finding does not call for interference in second appeal. No question of law much less substantial question of law arises for adjudication in this second appeal. The appeal is accordingly dismissed in limine. ---------0.B.S.0------------