Bhajan Singh vs Registered Firm Tarsem Chand Goyal

R.L. Anand, J.—This is a Regular Second Appeal and has been directed against the judgment and decree dated 7.11.1978, passed by the Additional District Judge, Sangrur, who allowed the appeal of the plaintiff-respondent and set aside the judgment and decree of the trial Court dated 29.11.1977 and passed a money decree for a sum of Rs. 8,800/- with costs in favour of the plaintiff and against the defendant.

The facts of the case can be summarised in the following manner. Registered Firm Tarsem Chand Goyal of Bhawanigarh District Sangrur, filed a money suit for a sum of Rs. 8,800/- on the ground that plaintiff is a registered partnership firm and it maintains regular books of accounts and the transactions conducted by the firm are duly entered in the account books. On 13.6.1971 Bhajan Singh defendant along with his nephew Jagrup Singh came to the plaintiff and borrowed a sum of Rs. 8,800/-. This loan was entered in the Rokar of the plaintiff firm and the entry was signed by the defendant as well as his nephew Jagrup Singh. The entry was further carried into the Khata of the firm which is properly maintained in the regular course of business. The defendant did not return the amount. A registered notice was given to the defendant through the counsel on 13.5.1974 and defendant was called upon to pay the amount. The defendant sent the reply denying the receipt of the amount. On these small allegations the plaintiff filed a suit for the recovery of the aforesaid amount.

The suit was contested by the defendant. He contended that he was an illiterate person and he could not sign. He only puts his thumb-impressions on the documents. The alleged writing was a forged one. Later on the defendant amended his written statement and took the plea that even if it was proved that he borrowed any amount from the plaintiff, it stood discharged in view of the provision of Punjab Agricultural Indebtedness Relief Act, 1975.

From the above short1 pleadings of the parties, the learned trial Court framed the following issues:-

Whether plaintiff firm is a registered firm under Indian Partnership Act? OPP

Whether the defendant borrowed Rs. 8,800/- from the plaintiff and signed an entry in the Rokar Bahi? OPP

2-A. Whether the defendant is a debtor as defined in the Punjab Act No. 24 of 1975? If so, its effect?

Relief.

The parties led oral as well as documentary evidence in support of their case and the learned trial court vide judgment and decree dated 29.11.1977, decided issue No. l in favour of the plaintiff. Issue No. 2 was decided against the plaintiff and issue No. 2-A was decided against the defendant. On the strength of the findings given under issue No. 2, the plaintiff was non-suited.

Aggrieved by the judgment and decree dated 29.11.1997, plaintiff firm filed the first appeal before the Court of Additional District Judge, Sangrur, which for the reasons given in para No. 5, 6, 7, 8 and 9 of the judgment reversed the findings of the trial Court on issue No. 2 and accepted the appeal and set aside the judgment and decree of the trial Court and granted a money decree for a sum of Rs. 8800/- along with costs. This time it was the turn of the defendant who was not satisfied with the judgment and decree of the first appellate Court dated 7.11.1978 and, thus, he has filed the present appeal.

I have heard Shri Ashok Jindal, Advocate, for the appellant and Shri K.K. Garg, Advocate, on behalf of the respondent and with their assistance have gone through the record of this case.

Before I deal with the submissions made by the counsel for the parties, it will be appropriate for me to reproduce the relevant paras No. 5, 6, 7, 8, and 9 of the judgment of the first appellant Court, which reversed the finding of the learned trial Court.

"5 The only question to be determined in this appeal is whether the defendant had borrowed a sum of Rs. 8,800/- from the plaintiff. The contention of the defendant was that he was an illiterate person and he could not sign nor the entry in the rokar of the plaintiff-firm was signed by him. The very execution of the entry was thus denied. The plaintiff led evidence to show that the defendant could sign and he singed certain documents. PW1 Bachna Ram stated that he knew Bhajan Singh defendant, he had borrowed Rs. 600/- from him and he had executed a pronote. Pronote Ex. P.1 and the receipt Ex.P.2 were signed by the defendant in his presence. In his cross-examination he stated that he knew Bhajan Singh personally. He denied that the pronote Ex.P.l was a fictitious document. No other question was put to this witness by way of cross-examination. The execution of the pronote Ex.P.l and receipt Ex.P,2 by the defendant was further proved by Raj Pal PW2 who is the scribe of the pronote and the receipt. He also knew the defendant personally. PW3 Tarsem Chand is a Commission Agent of Bhawanigarh. He stated that the defendant took Rs. 40/- from him regarding which he made entry in his rokar and this entry Ex.P.3 was signed by the defendant in his presence.

PW5 Shri Mohinder Singh Sahni, Chief Judicial Registrar, Ferozepur who was previously, Sub Judge, Sangrur, stated that one execution application was pending against Bhajan Singh defendant in which he recorded the statement of the defendant copy of which was Ex.PW5/B. This statement was signed by Bhajan Singh. PW6 Balram Datt who previously practiced as a lawyer at Sangrur, was engaged by Bhajan Singh defendant in case Mohan Singh v. Gujar Singh and Bhajan Singh. The power of attorney Ex.PW6/A was signed by Bhajan Singh-defendant in his presence. All these documents placed on the record show that the contention of the defendant that he is an illiterate person and cannot even sign is false. He had been signing various documents and he did not deny his signatures on the pronote and receipt, on his statement, and on the power of attorney.

The plaintiff examined Shri K.S. Puri, Handwriting and Finger Expert, Patiala as PW4. He compared the disputed signature on the entry in the account book with the specimen signatures on Exs.P.1, P.2 and P.3 and on his statement in court in the execution file Mohan Singh v. Gajan, and the signatures on the Vakalatnama. In his opinion all these signatures were in the handwriting of one and the same person. He made his report Ex.PW4/A which contained the reasons for his opinion. The plaintiff appeared as PW7 and stated that the defendant and his nephew Jagrup Singh came to him and borrowed Rs. 8,800/- The defendant executed the writing Ex.PW7/C which was signed by Bhajan Singh and Jagrup Singh also signed it. He further stated that the firm maintained account in the regular course of its business.

In rebuttal the defendant examined some witnesses to prove that he was not having good relations with the plaintiff firm and so the suit was brought against him on the basis of fictitious entry. DW1 Jagrup Singh the nephew of the defendant stated that he along with Bhajan Singh had gone to purchase seed of wheat from Tarsem Chand and Tarsem Chand was selling that seed at the rate of Rs. 130/- per quintal as against the fixed rate of Rs. 82.30 as a result of which there was an altercation between them. Jagrup Singh a member of Nau Javan Sabha reached there and then a complaint was filed by Nau Jawan Sabha against the plaintiff firm was cancelled. He stated that he was also a member of Nau Jawan Sabha. He further sated that Bhajan Singh was illiterate and he could not sign but this statement of Jagrup Singh cannot be believed. The various documents placed on the record which are duly proved, establish that Bhajan Singh could sign his name. This witness is the real nephew of the defendant. The entry Ex.PW7/C also bears his signature which he denied but this fact is proved that he knows English and he Could sign in English. The statement made by this witness was beyond the pleading of the parties. It was nowhere asserted in the written statement that there had been any dispute between the parties on account of the sale of seed of the wheat, or that any complaint was filed against the plaintiff by the defendant and his nephew. The plaintiff admitted that a complaint was filed by Nau Jawan Singh but he denied that the defendant or his nephew has any hand in the filling of that complaint. There is nothing on the record to show as to When that complaint was filed. PW2 Jagrup Singh another member of Nau Jawan Sabha also deposed regarding the complaint filed against the plaintiff firm but his statement is also beyond the pleadings of the parties and, therefore, cannot be considered. DW3 Santa Singh stated that his sale deed was attested by Bhajan Singh defendant and as he was illiterate he thumb marked the sale deed. Copy of which was Ex.D.l. was attested by the defendant and he did not put his signatures thereon but put his thumb impression. This, however, does not mean that he always thumb marked the documents when certain documents have been placed on record which were signed by the defendant even did not deny his signature on these documents when he appeared in the witness box.

The defendant also examined Shri Bachna Ram, Handwriting and Finger Expert, Dhuri, who deposed that in his opinion the disputed signatures of Bhajan Singh were not executed by the person who had executed the standard signatures and he made his report Ex.D.2. The defendant also stated that there has been a dispute regarding the purchase of the seed from the depot of the plaintiff and so this suit was brought against him. He had never borrowed any amount from the plaintiff. 1 find that this version that there was a dispute between the parties was set forth only at the stage of evidence and originally this was not the case of the defendant. His case Was of simple denial. In the alternative he had claimed discharge of the debt but he never alleged that there was any complaint filed by his nephew against the plaintiff-firm. Jagrup Singh his nephew admitted that the complaint was not signed by him. In fact the complaint was filed by Nau Jawan Sabha and the defendant had no concern with that Sabha. When it was proved on record that the defendant could sign he set up this case that there was a dispute between the parties. The plaintiff firm maintained accounts in the regular course of its business. All the three account books were regularly maintained and balance was struck daily. The entry in the Rokar was also carried to the ledger, copy of which has been placed on the record. Shri K.S. Puri has given detailed reasons for his opinion. He admitted that there was slight variation between the signatures yet there was sufficient data for arriving at a conclusion that the disputed signatures and the specimen signatures were in the handwriting of one and the same person, and there is no reason to reject the testimony of this witness who is an expert in the science of handwriting, which though is not an exact science yet is quite accurate. The entry in question is also signed by Jagrup Singh nephew of the defendant. If the plaintiff was out to fabricate an entry then it was not natural to forge the signatures of two persons. Jagrup Singh being a close relative of the defendant denied his signatures and also denied the receipt of loan by his uncle, yet Bachna Ram the Handwriting Expert examined by the defendant was not asked to compare the signature of Jagrup Singh on the entry Ex. PW7/C with his specimen signatures. There is evidence on the record that the defendant cultivates land and he has been selling his commodities at the shop of the plaintiff, so there was nothing unnatural in advancing a loan of Rs. 8,800/- to the defendant by the plaintiff firm. Considering the evidence on record and circumstances of the case, I find that it is proved that the plaintiff advanced a loan of Rs. 8,800/- to the defendant vide entry Ex.PW7/C The findings of the Court below on issue No. 2 are erroneous and are, therefore, reversed."

Two fold argument was raised by the learned counsel for the appellant, firstly, that the disputed entry Ex.PW7/C is an abnormal entry because in the account books of the plaintiff firm there is not even a single entry which has been signed by the defendant in the same manner as has been signed in the present case. Secondly, it has been submitted by the learned counsel for the appellant that the signatures on the disputed entry do not tally with the admitted signatures of Bhajan Singh and in these circumstances, the execution of the document is not proved. In support of his contention the learned counsel for the appellant has invited my attention to the oral and documentary evidence in this case.

On the contrary, the learned counsel appearing on behalf of the respondent while meeting the contentions of the opposite counsel, submitted that execution of the entry stands proved from the direct evidence of the witnesses of the plaintiff and further there is a corroboration to the statement of the witnesses. Shri K.S. Puri, Handwriting and Finger Print Expert, has categorically stated that the disputed signatures tallies with the admitted signatures of the defendant Shri Bhajan Singh. The counsel submitted that Shri Bhajan Singh is not a truthful witness because he has earlier tried to say in the written statement that he never used to sign on the documents. It stands proved on the record that Bhajan Singh had been signing previously on various promotes and receipts. It was also submitted by the counsel for the respondent that the evidence of the expert examined by the plaintiff is more cogent which proves the execution of the document. There are regular books of accounts of the plaintiff firm which again lend corroborative value u/s 34 of the Indian Evidence Act. Lastly, it was submitted by the counsel for the plaintiff that the plea taken up by the appellant at the appellate stage was to the effect that due to the enmity between the defendant and the plaintiff, a forged entry has been made in the account books of the plaintiff firm. The counsel submitted that this plea is against the pleadings of the defendant.

After considering the rival contentions of the parties, I am of the considered opinion that the judgment of the lower appellate Court is sound and does not call for any interference. I had already quoted the reasons of the first appellate Court which decreed the suit. I can only further add that the disputed signatures have been rightly compared by the handwriting and Finger Expert with the admitted signatures of Bhajan Singh appearing on pronote P.1 and receipt P-2. Even u/s 73 of the Indian Evidence Act, the Court has the power to compare the signatures and many variations are bound to be there with the passage of time even in the case of normal circumstances. It stands proved that Bhajan Singh in the presence of his nephew Jagrup Singh, incurred a loan of Rs. 8,800/-. The genuineness of the claim of the plaintiff is further established that had plaintiff firm wanted to file a false suit it could add Shri Jagrup Singh, who is the real nephew of the defendant, as co-defendant in this case. It does not stand to reason that the plaintiff firm will forge the signatures of Bhajan Singh and Jagrup Singh because the disputed entry EX.PW7/C is not only signed by Shri Bhajan Singh in Panjabi but also signed by Shri Jagrup Singh in English. No doubt Jagrup Singh had been produced by the defendant in the trial Court and he has denied his signatures on the document. There is no occasion as to why the testimony of the plaintiff should not be believed in this regard. The entry of Rokar has further been carried out into the Khata of the account books of the plaintiff firm, regularly maintained in due course and this further corroborates the oral testimony of the partner of the plaintiff firm. In this view of the matter, I affirm the finding of the first appellate Court on issue No. 2 and do not see any merit in this appeal and dismiss the same.

At this juncture, the learned counsel for the appellant submits that reasonable time may be given to the defendant so that he may be able to make the payment of the decretal amount. In the interest of justice, I grant one year''s time to the defendant to make the payment of Rs. 8,800/- along with costs of all the Courts failing which it will be open to the plaintiff to charge interest at the rate of 6 per cent per annum from the date, the suit was decreed by the first appellate Court.