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2014 DIGILAW 1800 (PNJ)

Randhir Singh v. Ram Kumar

2014-12-23

ANITA CHAUDHRY

body2014
Judgment Anita Chaudhry, J. By way of the present Regular Second Appeal, the appellant-defendant prays for setting aside of the judgment and decree dated 04.10.2011 passed by District Judge, Jind (hereinafter referred to as 'the First Appellate Court') whereby the suit of the plaintiff was decreed and the judgment and decree passed by the Lower Court was set aside. The parties are being referred as shown in the Lower Court. 2. Briefly stated the facts of the case are that a suit for recovery of Rs.60,000/- alongwith interest @ 2% per month was filed by Ram Kumar on the plea that the defendant had borrowed a sum of Rs.35,000/- from him and had executed a bahi entry in his favour. The bahi was signed by the defendant, in token of its correctness. The defendant had agreed to repay the amount alongwith interest but the amount had not been repaid and the interest had accumulated to Rs.25,000/- and in this manner a sum of Rs.60,000/- was due. The plaintiff also prayed for future interest at the same rate. A legal notice was sent through the counsel but the amount was not paid, therefore, the suit was filed. In the written statement the defendant averred that the plaintiff had no licence to indulge in money lending business and denied having taken any loan. Plea of limitation, cause of action and maintainability was also raised. He denied that he had signed any bahi entry and pleaded that it was forged and false. 3. On the basis of the pleadings, following issues were framed:- 1. Whether the plaintiff is entitled to the recovery of alleged amount alongwith interest? OPP 2. Whether the suit of the plaintiff is not maintainable in the present form? OPD 3. Whether plaintiff has got no cause of action and locus standi to file the present suit? OPD 4. Whether the suit is time barred? OPD 5. Relief. 4. The trial Court, on appraisal of the entire evidence gave a finding against the plaintiff on issue No. 1 and the suit was dismissed. 5. Feeling aggrieved, the defendant filed an appeal which was allowed by the First Appellate Court and the findings of the trial Court were reversed. 6. Hence, this appeal has been filed. 7. Relief. 4. The trial Court, on appraisal of the entire evidence gave a finding against the plaintiff on issue No. 1 and the suit was dismissed. 5. Feeling aggrieved, the defendant filed an appeal which was allowed by the First Appellate Court and the findings of the trial Court were reversed. 6. Hence, this appeal has been filed. 7. Learned counsel for the appellant had strenuously urged that the bahi entry had not been proved and the original bahi was never produced alongwith the plaint and only a leaf was produced and there was no revenue stamp nor any receipt. It was urged that when a case is based on the bahi entries the plaintiff is required to prove that the bahi had been maintained in accordance with law and the bahi entry has to be proved. It was contended that the Lower Court had dismissed the suit but the First Appellate Court had misread the evidence and had wrongly read the statement as an admission and had ignored other factors. It was urged that bahi was not page marked and the plaintiff had admitted to other borrowings and he was a money lendor and had no licence and the defendant was not required to lead any evidence. It was urged that Order 7 Rule 17 of the Civil Procedure Code provides that original book of accounts has to be produced at the time of filling of the plaint together with a copy of the entry on which he relies but the original bahi had not been produced and mere production of leaf would not dispense with the proof thereof and the judgment passed by the First Appellate Court be reversed. Reliance was placed upon Karnail Singh v. M/s Kalra Brothers, Sirsa, 2009(2) RCR (Civil) 380. 8. Per contra the submission made on behalf of the respondent was that the defendant had admitted that he had taken a loan when Ram Kumar was living in the village which is an admission. It was contended that a handwriting expert had compared the signatures of Randhir with the signatures available on the Power of Attorney and the written statement and had given a clear report that the signatures on the bahi were of Randhir and there was no rebuttal to that evidence. It was contended that a handwriting expert had compared the signatures of Randhir with the signatures available on the Power of Attorney and the written statement and had given a clear report that the signatures on the bahi were of Randhir and there was no rebuttal to that evidence. It was contended that there was no requirement of bahi entry being stamped and reference was made to the observations made in Dhup Singh v. Pheru and others passed in R.S.A. No. 1892 of 1986 (decided on 09.01.2014). It was urged that in Ganga Jal v. Lal Chand, 1970 PLR 28 it was held that if the entry was made only as an acknowledgment of the correctness of the accounts and not intended to supply an evidence of debt it would not fall within the mischief of Article 1, Schedule 1 of the Stamp Act. 9. So far as the question of stamping is concerned when an entry is merely a balance of accounts and signatures are appended only to accept the correctness of the balance then no stamp duty is required to be affixed and the entry would be admissible as per Section 34 of the Act. On the other hand if the entry is executed in the nature of bond or promissory note then it has to be stamped as per the Stamp Act, 1899. In the present case original bahi was never produced. Order 7 Rule 17 CPC provides that where the plaintiff sues and base his case on an entry in the accounts book in his possession then the plaintiff shall produce the book of accounts at the time of filing of the plaint together with a copy of entry on which he relies. In the case in hand the original bahi was never produced at the time of filing of the plaint. The photocopy of the bahi was exhibited in the statement of Ram Kumar. In the cross examination the plaintiff had admitted that the bahi did not have any page marking. He could not even tell the number of page in his bahi. The plaintiff had admitted that he had lent money to 5-7 persons and had charged interest. He admitted that he did have a licence. The plaintiff admitted that he had given money to Balwan, Ganga, Balbir, Dilbag and Meera. 10. The present case is based upon an entry made in the bahi. The plaintiff had admitted that he had lent money to 5-7 persons and had charged interest. He admitted that he did have a licence. The plaintiff admitted that he had given money to Balwan, Ganga, Balbir, Dilbag and Meera. 10. The present case is based upon an entry made in the bahi. The bahi is not stamped. A reading of the entry shows an entry for sum of Rs.35,000/- on 11.6.2003 with interest @ 2% per month. At the bottom it says that whatever mentioned above is correct. Below it there are signatures of Randhir Singh son of Hawa Singh. The case of the plaintiff in his affidavit is that the entry is in his own hand and the defendant had put his signatures below it acknowledging its correctness. Randhir Singh denied that he had taken any money or had signed the bahi. He stated that he was illiterate and he only knew how to put his signatures and was a labourer. In the cross examination, he submitted that he received a letter but did not knew the contents of it or whether it was a notice. The Lower Court had rejected the plea taken by the plaintiff but the First Appellate Court reversed the findings holding that there was admission by the plaintiff and nothing more was required to be seen. A reading of the statement given by the plaintiff as well as the defendant shows that the defendant had earlier taken some amount which according to the plaintiff's own admission had been returned. It appears that the statement made by defendant is with reference to the loan taken by him in the first instance and the statement could not be taken as an admission nor the findings could be reversed by the First Appellate Court. There was no witness to the transaction entry. Mere proof of signatures can not be proof of execution of a document. The plaintiff had failed to give the details of the currency notes that were handed over to the defendant. The execution of the entry had not been proved. The defendant is an illiterate person, it could be that his signatures were taken on a blank paper which had been used subsequently. The plaintiff had failed to give the details of the currency notes that were handed over to the defendant. The execution of the entry had not been proved. The defendant is an illiterate person, it could be that his signatures were taken on a blank paper which had been used subsequently. The entry in the book of accounts could have been relied upon if only the plaintiff could prove that he had maintained the same in the course of his business before the defendant could be charged with a liability. The solitary statement of the plaintiff can not be said to be sufficient evidence to charge the defendant. There is no independent evidence to corroborate the entry in the bahi and no liability should be imposed on the debtor. It would be useful to quote from the judgment of Hon'ble Supreme Court in Central Bureau of Investigation v. V.C. Shukla, 1998(3) SCC 410 , wherein the Court held as under:- "From a plain reading of the Section it is manifest that to make an entry relevant thereunder it must be shown that it has been made in a book, that book is a book of account and that book of account has been regularly kept in the course of business. From the above Section it is also manifest that even if the above requirements are fulfilled and the entry becomes admissible as relevant evidence, still, the statement made therein shall not alone be sufficient evidence to charge any person with liability. It is thus seen that while the first part of the section speaks of the relevancy of the entry as evidence, the second part speaks, in a negative way, of its evidentiary value for charging a person with a liability. It will, therefore, be necessary for us to first ascertain whether the entries in the documents, with which we are concerned, fulfil the requirements of the above section so as to be admissible in evidence and if this question is answered in the affirmative then only its probative value need be assessed". 11. An entry to be admissible in evidence under Section 34 of the Act, must be shown to be in a book, that book must be a book of accounts and that account must be one regularly kept in the course of business. 11. An entry to be admissible in evidence under Section 34 of the Act, must be shown to be in a book, that book must be a book of accounts and that account must be one regularly kept in the course of business. The term book may properly be taken to signify ordinarily a collection of sheets of paper bound together with the intention that such binding shall be permanent and the papers used collectively in one volume. A book which merely contains entries of items of which no account is made at any time, is not a book of account for the purpose of Section 34. The legislature did not intend to include in that category any record in which there is no process of reckoning. 12. In Dadi Musali Naidu v. Budda Veeru Naidu, AIR 1958 AP 88 , it was held that a mere signature in a running account is not evidence of the debt of which there is already evidence in the account book and is in fact just an acknowledgment of the correctness of the account not required to be stamped. 13. In the present case it has not been shown that the plaintiff was maintaining any book of accounts in the ordinary course of nature and the bahi entry is not attested by any independent witness. The plaintiff has failed to adduce evidence to show that he was maintaining any accounts book or was actually calculating the interest or entering the balance in his book of accounts. The suit could not be decreed on the basis of the report of the handwriting expert when it is a fact known that the handwriting experts give reports favouring the party who engages him. 14. The plaintiff had failed to discharge the burden which was placed upon him. It is held that the bahi entry was not proved in accordance with law. The findings arrived at by the First Appellate Court warrants interference. The appeal is accepted. The suit filed by the plaintiff necessarily ought to fail.