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2018 DIGILAW 4558 (PNJ)

Gurmeet Masih v. Kuldeep Singh

2018-11-27

SURINDER GUPTA

body2018
JUDGMENT Surinder Gupta, J. - Defendant-Gurmeet Masih has filed this regular second appeal against concurrent judgments of learned Civil Judge (Junior Division), Malerkotla and Additional District Judge, Sangrur, decreeing the suit of plaintiff for recovery of Rs. 53,525/- as principal with interest @ 2% from 01.07.2004 to 01.07.2007 and future interest @ 6% from the date of decision till actual realization. 2. In later part of the judgment parties will be referred as 'plaintiff' and 'defendant' as per civil suit. FACTS:- 3. The case of plaintiff, in brief, is that defendant-Gurmeet Masih took loan of Rs. 53,525/-from plaintiff-Kuldeep Singh on 01.07.2004 and executed a pronote and receipt in his favour, which was scribed by Sohan Singh son of Dhani Ram. After executing the pronote and receipt, the same were handed over to plaintiff. The defendant-appellant failed to repay the loan amount or the interest and a sum of Rs. 92,050/- including interest was outstanding at the time of filing of the suit, which he did not pay. 4. In written statement defendant contested claim of plaintiff with averment as follows:- "1..........The real state of affairs is that the defendant had cordial relation with Kartar Singh father of the plaintiff and defendant is a poor person. He to fetch up his domestic needs on dated 20.03.2000 borrowed a sum of Rs. 1500/- from Kartar Singh father of plaintiff and on same day the defendant also borrowed a sum of Rs. 1000/- from Kartar Singh father of the plaintiff, and on dated 29.05.2000, the defendant borrowed a sum of Rs. 30,000/- and on dated 20.11.2000 the defendant borrowed a sum of Rs. 5000/- from Kartar Singh the father of the plaintiff. Thus the defendant borrowed a total sum of Rs. 37,500/- from Kartar Singh father of the plaintiff. When the defendant borrowed a sum of Rs. 5000/- lastly on dated 20.11.2000 then Kartar Singh father of the plaintiff pressurized the defendant to execute some blank documents as security of loan amount in his favour. Then father of the plaintiff got signatures on blank pronote and receipt pronote of the defendant in presence of Dildar Masih son of Nazir Masih of village Chhokran and Davinder Singh son of Ujjagar Signh of village Drogewal and he further insured (sic assured) that when the defendant would settle all the accounts then he will return the original pronote and receipt to the defendant. The defendant is a poor and unemployed person. The defendant returned a sum of Rs. 9000/- on 20.09.2000 and also returned an amount of Rs. 13,500/- on dated 20.09.2002. After this the defendant took the loan of Rs. 30,000/- on 16.10.2003 from The Khanpur Co-op. Central Bank Khanpur tehsil Malkerkotla and the father of the plaintiff namely Kartar Singh and Sher Singh sarpanch of village Chhokran gave the guarantee of the defendant in above said bank and defendant get the loan of Rs. 30,000/- from bank and he handed over Rs. 28700/- on same day to Kartar Singh father of the plaintiff as return of the loan amount of Kartar Singh, the defendant also returned an amount of Rs. 30,000/- on dated 10.8.2005 and returned Rs. 18000/- on dated 18.01.2006 to Kartar Singh father of the plaintiff. As such the defendant returned a total sum of Rs. 99,200/- as total loan amount with interest to Kartar Singh father of the plaintiff. That on 26.01.2006 the defendant in presence of some respectable persons made the request to Kartar Singh father of the plaintiff to return the original blank pronote and receipt pronote but Kartar Singh told that blank pronote and receipt pronote is untraceable and why are you worry and you have returned the all amount of my loan with interest and I shall execute the receipt of return of loan amount to the defendant. Then on dated 27.01.2006 a writing as compromise was written as the instance of Kartar Singh and defendant in presence of respectables and plaintiff. But the original of the compromise is in possession of Kartar Singh father of the plaintiff and photostat copy was given to the defendant, which is attached.............." 5. It was averred that plaintiff is a bachelor and was residing with his father. He had no capacity or independent source to advance the loan. He in collusion with marginal witnesses filled the blank pronote and receipt (obtained by his father) and have shown the same as executed by the defendant on 01.07.2004. 6. In replication, plaintiff did not deny averments of defendant as discussed above, but alleged that these have no concern with the present case. 7. Pleadings of parties led to framing of the issues as follows:- (1) Whether the defendant borrowed a sum of Rs. 53,525/- from the plaintiff on 01.07.2004 on interest? OPP. 6. In replication, plaintiff did not deny averments of defendant as discussed above, but alleged that these have no concern with the present case. 7. Pleadings of parties led to framing of the issues as follows:- (1) Whether the defendant borrowed a sum of Rs. 53,525/- from the plaintiff on 01.07.2004 on interest? OPP. (2) Whether the defendant executed a pronote and receipt in favour of the plaintiff for due payment of loan amount? OPP (3) Whether the defendant has failed to make the payment, despite various demands? OPP (4) Whether the plaintiff is entitled to interest, if so at what rate and for what period? OPP. (5) Whether the present suit is maintainable? OPP. (6) Whether the pronote and receipt are forged and fictitious documents? OPD (7) Whether the plaintiff has concealed the true and material facts from the Court? OPD. (8) Whether the present suit is bad for non-joinder of necessary parties? OPD. (9) Relief. 8. Learned Civil Judge (Jr. Division) while deciding issues no. 1 to 4 together discussed evidence produced by the plaintiff to prove pronote and receipt and held that execution of the pronote and receipt is duly proved. However, plea taken by the defendant regarding transaction with father of plaintiff were not discussed. 9. Learned 1st Appellate Court while affirming judgment and decree of Court below held that in order to substantiate his plea, defendant took the risk of examining Kartar Singh, father of plaintiff, who had deposed on oath that he did not enter into compromise with defendant and also denied his signatures on compromise dated 27.11.2006. 10. It is relevant to note here that above observation of learned 1st Appellate Court is not correct as Kartar Singh was not summoned by the defendant as his witness. He moved an application for production of original compromise dated 27.01.2006 on which learned trial Court passed order as follows:"..............As the plaintiff has denied the possession of documents, copy of which is already on record, therefore, this Court is of the opinion that present application can be disposed of by issuing process to Kartar Singh son of Amar Singh to put in appearance in the Court to disclose whether the aforesaid compromise is in existence or in his possession." 11. In pursuance of above order summons were sent to Kartar Singh, who put in appearance and denied compromise dated 27.11.2006. In pursuance of above order summons were sent to Kartar Singh, who put in appearance and denied compromise dated 27.11.2006. Learned 1st Appellate Court also referred to statement of DW-1 Nazir Masih, wherein he has stated that defendant borrowed a sum of Rs. 30,000/- from plaintiff in his presence and that of DW-3 Davinder Singh, who had admitted execution of the pronote and receipt (Ex. P-1 and Ex. P-2) by the defendant. 12. Learned counsel for the appellant has argued that this is a case where Courts below have ignored plea raised by defendant about his loan transaction with father of plaintiff; the evidence on record and have also misread and misinterpreted the evidence on record while recording finding that execution of the pronote and receipt by appellant in favour of plaintiff is duly proved. Both the Courts below failed to look into the reasons given by defendant while handing over blank pronote and receipt to plaintiff to prove compromise dated 27.01.2006, which is not a disputed document. Plaintiff (decree holder) was admittedly living with his father. There appears to be a typographical mistake in the statement of Nazir Masih, wherein he has stated that Rs. 30,000/- was advanced by the plaintiff to defendant as the above amount as per case of defendant was borrowed from father of plaintiff. It is not even the case of plaintiff that he ever advanced Rs. 30,000/- to defendant, as such, reliance on this fact by learned Ist Appellate Court while upholding the pronote and receipt is misconceived. The defendant has not denied his signatures on the pronote and receipt, rather has come up with an explanation that his signatures were obtained on blank document by father of plaintiff. Both the Courts below instead of looking into the explanation put forth by the defendant, appreciating and discussing the evidence produced in this regard by defendant in consonance with pleadings, have decreed the suit of plaintiff with the finding that execution of the pronote and receipt is duly proved. Judgments of Courts below are liable to be set aside as these are not based on proper appreciation of evidence on record. 13. Learned counsel for the respondent (plaintiff) has argued that execution of the pronote and receipt by the defendant is duly proved. Judgments of Courts below are liable to be set aside as these are not based on proper appreciation of evidence on record. 13. Learned counsel for the respondent (plaintiff) has argued that execution of the pronote and receipt by the defendant is duly proved. The documents he has produced are with regard to his dealings with father of plaintiff and have no concern with the case of plaintiff. Courts below have rightly discarded the plea taken by the defendant while decreeing the suit. The finding of fact recorded by Courts below call for no interference in this appeal. 14. Before proceeding further it will be relevant to have a look on the scope of interference in the concurrent judgments of Courts below in this regular second appeal. 15. In case Hero Vinoth (minor) vs. Seshammal, 2006 (5) SCC 545 , Apex Court while discussing the scope of interference in concurrent finding of fact in second appeal and scope of section 100 CPC observed as follows:- "25. The principles relating to section 100 CPC, relevant for this case, may be summarized thus:- (i) An inference of fact from the recitals or contents of a document is a question of fact. But the legal effect of the terms of a document is a question of law. Construction of a document involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law. (ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law. (iii) The general rule is that High Court will not interfere with concurrent findings of the Courts below. But it is not an absolute rule. Some of the well recognized exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to 'decision based on no evidence', it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding." 16. Keeping in view the above settled proposition of law in Hero Vinoth's case (supra), I proceed further to appreciate the evidence on record. 17. The substantial question of law which arises for consideration in this appeal is as to whether the Courts below while decreeing the suit have looked into and properly appreciated the plea of defendant with regard to execution of pronote and receipt and evidence on record? 18. As already discussed, the defendant has not denied his signatures on the pronote and receipt dated 01.07.2004. He has come up with a plea that being a poor person he had been taking loan from father of plaintiff, namely, Kartar Singh, and has given details of the same as follows:- Date Loan taken 20.03.2000 Rs. 1500/- 20.03.2000 Rs. 1000/- 29.05.2000 Rs. 30000/- 20.11.2000 Rs. 5000/- 16.10.2003 Rs. 30000/- 19. The appellant has alleged that at the time of taking loan of Rs. 5000/-, father of plaintiff took his signatures on blank pronote and receipt in presence of Dildar Masih and Davinder Singh and assured to return the pronote on payment of the entire loan amount. He returned the loan amount as follows :- Date Loan taken 20.09.2002 Rs. 9000/- 20.09.2002 Rs. 5000/-, father of plaintiff took his signatures on blank pronote and receipt in presence of Dildar Masih and Davinder Singh and assured to return the pronote on payment of the entire loan amount. He returned the loan amount as follows :- Date Loan taken 20.09.2002 Rs. 9000/- 20.09.2002 Rs. 13500/- 16.10.2003 Rs. 28700/- 10.08.2005 Rs. 30000/- 18.01.2006 Rs. 18000/- 20. The defendant has explained that on 16.10.2003, he on asking of father of plaintiff took loan of Rs. 30,000/- from Khanpur Cooperative Central Bank, Khanpur for which father of the plaintiff stood guarantor with Sher Singh, sarpanch of village Chhokran. On getting the loan amount of Rs. 30,000/-, he paid Rs. 28,700/- to father of the plaintiff. On payment of sum of Rs. 99,200/- towards loan amount with interest, defendant asked for return of the pronote and receipt, which were not returned as Kartar Singh, father of plaintiff, had alleged that the same was not traceable. He asked the defendant-appellant not to worry as he had returned entire loan amount. To assure the defendant, he executed writing dated 27.01.2006, photocopy of which was supplied to defendant. That writing has been placed on file as Ex. D1, which reads as follows:- "Compromise That I Gurmeet Masih son of Harbans Masih, resident of village Chhokran, District Sangrur had taken loan from Kartar Singh for my personal needs, details of which are as follows:- Date Loan taken 20.03.2000 Rs. 1500/- 20.03.2000 Rs. 1000/- 29.05.2000 Rs. 30000/- 20.11.2000 Rs. 5000/- Total Rs. 37500/- After calculating interest, the loan amount came to be Rs. 99,200/- (Rupees Ninety Nine Thousand Two Hundred only), which I Gurmeet Masih had returned to Kartar Singh, as per following details. Date Loan taken 20.09.2002 Rs. 9000/- 20.09.2002 Rs. 13500/- 16.10.2003 Rs. 28700/- 10.08.2005 Rs. 30000/- 18.01.2006 Rs. 18000/- Total Rs. 99200/- On return of loan amount nothing remains due between the parties. No amount of Kartar Singh son of Amar Singh is outstanding and he had received the entire payment. Writing has been scribed as evidence:- Witness:- Thumb marked Lakhwinder Singh Gurmeet Singh Kartar Singh Nazir Masih Sd/- Sd/- Sd/- 21. Plaintiff, when appeared as PW-3, was confronted with aforesaid writing, which he did not deny but avoided to identify signatures of his father on it for want of original. He denied that his father had any transaction with defendant and Rs. 99,200/- was paid to him towards outstanding loan. Plaintiff, when appeared as PW-3, was confronted with aforesaid writing, which he did not deny but avoided to identify signatures of his father on it for want of original. He denied that his father had any transaction with defendant and Rs. 99,200/- was paid to him towards outstanding loan. Sohan Singh scribe of the pronote and receipt has also not denied in his cross-examination that father of plaintiff has obtained signatures of defendant-appellant on blank pronote and receipt. He has stated that pronote and receipt were brought by defendant and was scribed in his factory. Marginal witnesses of the pronote and receipt, namely, Sham Lal, while appearing as PW-2 has stated that pronote and receipt were scribed at the residence of Sohan Singh (PW-1). He has further stated that he was compelled to sign the pronote and receipt being co-villager. However, below his signatures, the scribe has not mentioned his name or his father's name. Plaintiff while appearing as PW-3 has stated that he is living with his father and was unmarried. He initially stated that pronote and receipt were scribed at the residence of Sohan Singh and then corrected himself and stated that it was scribed at his factory. In order to prove his transaction with Kartar Singh, father of plaintiff, defendant examined Nazir Masih as DW-1, who has stated that writing (Ex. D1) was executed between the appellant and Kartar Singh but the original was retained by Kartar Singh and photocopy of the same was handed over to defendant. He identified their signatures on this writing. DW-3 Davinder Singh has also stated that when the original pronote and receipt were not returned by Kartar Singh, he was asked to execute writing dated 27.01.2006 (Ex. D1) in the presence of respectable of the village, which was signed by Kartar Singh. He has stated that this writing was executed in his presence. The plaintiff has alleged that writing (Ex. D1) has no concern with his transaction with defendant. It is proved on file that this writing was executed by his father and it is quite probable that signatures of plaintiff on pronote and receipt were obtained to secure the loan advanced by Kartar Singh. Plaintiff is living with his father, as such, could be aware about loan transaction of his father with defendant. The writing (Ex. It is proved on file that this writing was executed by his father and it is quite probable that signatures of plaintiff on pronote and receipt were obtained to secure the loan advanced by Kartar Singh. Plaintiff is living with his father, as such, could be aware about loan transaction of his father with defendant. The writing (Ex. D1) has been duly proved and the statement of defendant and his witnesses with regard to this writing could not be shattered in cross-examination. Even otherwise this document has not been specifically denied in the replication filed by plaintiff (decree holder). 22. The defendant has also examined official of Christian Medical College, Ludhiana, who has proved certificate dated 01.07.2004 issued by Dr. Joseph J. Mal and the receipt issued by him. As per this certificate (Ex. D2), defendant-Gurmeet Masih because of backache was advised rest for two weeks w.e.f. 01.07.2004 and on that day, an amount of Rs. 30/- was also deposited with the Medical College as fee of the certificate, copy of which is Ex. D3. However, these documents are not much relevant as defendant has not come up with any plea with regard to these documents. 23. The proof of document (Ex. D1) goes a long way to support the case of defendant regarding his loan transaction with father of plaintiff. It is quite surprising that plaintiff as well as his father both have denied loan transaction as per writing (Ex.D1) with defendant. Learned Ist Appellate Court while discarding writing (Ex. D1) has wrongly noted that the defendant has taken risk of examining Kartar Singh, father of plaintiff. In fact Kartar Singh was summoned by the Court to produce original of Ex. D1 and his statement was recorded to this effect. Plaintiff has not dared to examine his father as witness to deny execution of the document (Ex. D1) or has got specimen signatures of his father compared with his signatures on Ex. D1. 24. The net result of above discussion is that defendant has been able to prove his transaction with father of plaintiff and this gives strength to his contention that his signatures on the pronote and receipt were obtained by father of plaintiff, which were used in favour of plaintiff for filing the present suit. D1. 24. The net result of above discussion is that defendant has been able to prove his transaction with father of plaintiff and this gives strength to his contention that his signatures on the pronote and receipt were obtained by father of plaintiff, which were used in favour of plaintiff for filing the present suit. The Courts below have decreed the suit of plaintiff only on the ground that execution of the pronote and receipt is duly proved without looking into this aspect that defendant-appellant has not denied his signatures on the pronote and receipt but has explained the circumstances under which his signatures were obtained. 25. As a sequel of my above discussion, I am of the considered opinion that Courts below have ignored material evidence and have drawn wrong inference regarding execution of the pronote and receipt dated 01.07.2004. Both the Courts below have not looked into this aspect that plaintiff has not come up with any explanation regarding execution of the writing (Ex. D1). The approach of Courts below has resulted in miscarriage of justice and ignoring the plea of defendant regarding the pronote and receipt in question. Findings of Courts below on issues no. 1 to 4 and 6 are reversed and consequently, this appeal is accepted. Suit of plaintiff seeking the relief for recovery of Rs. 53,525/- as principal with interest @ 2% from 01.07.2004 to 01.07.2007 and future interest @ 6% from the date of decision till actual realization on the basis of pronote and receipt in question, is dismissed.