RSA No.3181 of 2006 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
RSA No.3181 of 2006
Date of decision: 5.3.2009
Joginder Singh ......Appellant
Versus
Baljit Singh ......Respondent
CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG
* * *
Present: Mr. G.S. Sandhu, Advocate for Mr. S.K. Chawla, Advocate
for the appellant.
Mr. Sandeep Jasuja, Advocate for the respondent.
* * *
Rakesh Kumar Garg, J.
This is defendant’s second appeal challenging the judgment
and decree of the Lower Appellate Court whereby suit of the plaintiff-
respondent for recovery of Rs.3,00,000/- with costs and interest at the rate
of 6 % per annum with effect from the date of raising of the loan till its
realization, has been decreed.
In the plaint, the plaintiff-respondent alleged that the appellant
borrowed from him a sum of Rs.3,00,000/- on 20.8.2000 and after receiving
the consideration amount, executed a pronote and receipt in his favour in
presence of the attesting witnesses and also agreed to pay interest at the
rate of 2% per annum. Since the defendant-appellant failed to repay the
aforesaid amount, the plaintiff-respondent filed suit for recovery of
Rs.3,82,500/- with interest at the rate of 1% per month.
The defendant contested the suit and filed written statement
denying therein that he borrowed any sum from the plaintiff and also
denied the execution of pronote or receipt in favour of the plaintiff. It was
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contended that the pronote and receipt in question were forged and
fabricated. He also contended that in fact, he had been selling his crops
at the Commission Agency of Arvind Sikri who had obtained his signatures
on a few blank pronote forms just as a security for the advancement of the
loan. The defendant discontinued selling his crops through the said
Commission Agency in the year 1997 and started selling his crops through
M/s. Sidhu Trad, Sohangarh. Annoyed by this, Arvind Sikri got filed a suit
for recovery on the basis of alleged pronote and receipt through Jarnail
Singh, who is the owner of M/s Sidhu Traders. He further contended that
he agitated regarding his balance outstanding with Arvind Sikri. A sum of
Rs.35,000/- was found outstanding against the defendant. The defendant
promised to repay this amount to Arvind Sikri within a few days. The
defendant borrowed a sum of Rs.35,000/- from M/s. Sidhu Traders and
paid the same to Arvind Sikri and his accounts with Arvind Sikri stood
settled finally. The defendant demanded back the signed blank pronotes
from Arvind Sikri, who promised to return the same, but did not do so on
one pretext or the other. Arvind Sikri fabricated the blank pronote and
receipt bearing the signatures of the defendant. The defendant-appellant
prayed for the dismissal of the plaintiff’s suit for recovery.
After hearing the parties and going through the evidence, the
trial Court dismissed the suit of the plaintiff-respondent vide judgment and
decree dated 22.7.2005.
Feeling aggrieved, the plaintiff-respondent filed an appeal
against the aforesaid judgment and decree of the trial Court which was
accepted by the Lower Appellate Court vide impugned judgment and
decree dated 15.5.2006. While allowing the appeal, the Lower Appellate
Court held that execution of the pronote and receipt and the passing of the
consideration amount has been duly proved by the attesting witnesses,
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namely, Harjinder Singh PW-1 and Balbir Singh PW-2 and there is no
reason to disbelieve either of them. While recording the aforesaid finding,
the Lower Appellate Court rejected the plea of the appellant that the
pronote and receipt in question are forged and fabricated documents as its
scribe has not been examined by the plaintiff.
Still not satisfied, the defendant has filed the present appeal
challenging the judgment and decree of the Lower Appellate Court in this
Court.
Learned counsel for the appellant has contended that the
evidence on the contents of the document i.e. pronote is a hearsay
evidence unless the writer thereof is examined before the Court and if the
entire document is held formally proved, that does not amount to a proof of
truthfulness of the contents of the document and the only person
competent to give evidence on the truthfulness of the contents of the
document is the writer thereof. In support of his argument, learned counsel
for the appellant has cited Sir Mohammed Yusuf and another v. D and
another 1968 Bombay 112 and has argued that the following substantial
question of law arises in this appeal that:
“Whether the contents of a document can be held to be
proved in the absence of the writer of the document?”
However, on the other hand, learned counsel for the
respondent has vehemently argued that the Lower Appellate Court on
appreciation of evidence has recorded a finding of fact that execution of the
document stands duly proved by examination of the marginal witnesses of
the disputed pronote and receipt and no question of law as argued by the
learned counsel for the appellant arises in this appeal and the same being
without any merit is liable to be dismissed.
I have heard learned counsel for the parties.
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The suit for recovery filed by the respondent is based upon
pronote and receipt which have been proved to have been duly executed
by the appellant from the examination of marginal witnesses. The stand
taken by the appellant was that he never executed any such document
and these pronote and receipt have been fabricated on the blank pronote
and receipt bearing the signatures of defendant by Arvind Sikri who has
got filed this suit for recovery. However, the plea of the appellant that
pronote and receipt are forged and fabricated documents have not been
proved on record. Thus, in such a situation, a party seeking to prove the
execution of the document is not required to prove that the executant knew
the contents thereof when the executant denied having signed it and had
pleaded that it is a forgery. I am supported, in my view, by a judgment of
the Hon’ble Apex Court reported as Dattatraya v. Rangnath Gopalrao
Kawathekar, (dead) by his legal representatives and others AIR 1971
SC 2548.
In view of the aforesaid authoritative judgment of the Hon’ble
Supreme Court, the contention of the learned counsel for the appellant is
without any merit.
No other point has been urged.
No substantial question of law arises in this appeal.
Dismissed.
March 5, 2009 (RAKESH KUMAR GARG)
ps JUDGE
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