Fateh Singh vs Leela Sagwal and another

L.N. Mittal, J

C. M. No. 14976-C of 2011:

Allowed as prayed for.

C. M. No. 14977-C of 2011:

Allowed as prayed for.

C. M. No. 14978-C of 2011 :

For reasons mentioned in the application, which is accompanied by affidavit, delay of 14 days in filing the appeal is condoned.

Main Appeal :

Defendant no.1 Fateh Singh has filed the instant second appeal after being successful in the trial court, but having been unsuccessful in the lower appellate court.

Respondent no.1-plaintiff Leela Sagwal filed suit against defendant no.1-appellant Fateh Singh and his wife Bala Devi - defendant no.2/proforma respondent no.2 for recovery of Rs.2,02,150/-.

Case of the plaintiff is that she is Proprietor of M/s Sagwal Trading Company, Commission Agent, Kurukshetra. Defendant no.1 used to sell his agricultural produce at the shop of the plaintiff and also used to receive advance amount from the plaintiff from time to time. Defendant no.1 had also agreed to pay interest @ 18% per annum on the advance amounts. At the closing of financial year 2002-03, amount of Rs.6,806/-was outstanding against defendant no.1. Thereafter, defendant no.1 borrowed various amounts from the plaintiff from time to time as detailed in the plaint. Lastly, defendant no.1 borrowed Rs.18,114/-from the plaintiff on 16.07.2005, making the outstanding principal amount against defendant no.1 as Rs.1,82,941/-. Defendant no.1 affixed his thumb impressions on various bahi entries of the plaintiff regarding receipt of amounts. However, after 18.10.2004, defendant no.1 did not sell his agricultural produce at the shop of the plaintiff nor paid the outstanding amount. On the other hand, defendant no.1 transferred his agricultural land in favour of his wife defendant no.2 vide conveyance deed dated 17.12.2004. The said conveyance deed has also been challenged in the suit having been made to stall the recovery of the suit amount by the plaintiff from defendant no.1. The plaintiff claimed recovery of Rs.1,82,941/-as principal amount and Rs.19,209/-as interest @ 18% per annum till filing of the suit, accordingly seeking recovery of total amount of Rs.2,02,150/-.

Defendants, in their written statement, admitted that defendant no.1 had been selling his agricultural produce through Commission Agency of the plaintiff. However, other averments of the plaintiff were broadly denied. It was alleged that defendant no.1 never received any amount in advance from the plaintiff. Bahi entries in this regard were alleged to be false. Various other pleas were also raised.

Learned Additional Civil Judge (Senior Division), Kurukshetra, vide judgment and decree dated 03.11.2009, dismissed the plaintiff''s suit. However, first appeal preferred by the plaintiff has been allowed by learned District Judge, Kurukshetra, vide judgment and decree dated 12.08.2011 thereby decreeing the plaintiff''s suit for recovery of Rs.1,82,941/-as principal amount and Rs.9,600/-as interest (@ 9% per annum) i.e. for total amount of Rs.1,92,541/-with interest @ 6% per annum from the date of filing of suit till recovery. Release deed dated 17.12.2004 executed by defendant no.1 in favour of his wife defendant no.2 was not set aside, but decretal amount has been held to be first charge on the disputed land. Feeling aggrieved, defendant no.1 has filed the instant second appeal.

I have heard learned counsel for the appellant and perused the case file.

The plaintiff, in support of her evidence, examined her Accountant Joginder Singh (PW-2). He broadly stated according to the plaint averments and also proved various bahi entries thumb marked by defendant no.1 regarding advance amounts taken by him from the plaintiff from time to time. The plaintiff also examined her son and Attorney Devinder Kumar (PW-3). He also broadly stated according to the plaint averments.

On the other hand, both defendants stepped into the witness-box and broadly stated according to their version.

All bahi entries bearing thumb impressions of defendant no.1 have been duly proved by plaintiff''s Accountant depicting payments of advance amounts by plaintiff to defendant no.1, as pleaded in the plaint. The said entries have also been proved by plaintiff''s Attorney.

On the other hand, defendant no.1 admitted his thumb impressions on the relevant bahi entries. Consequently, self-serving statement of defendant no.1 that he had not taken any advance amount from the plaintiff cannot be accepted. Lower appellate court has analyzed the evidence led by the parties in proper perspective and has arrived at finding of fact regarding the disputed amount being due from defendant no.1 to the plaintiff. The said finding of fact does not suffer from any infirmity or illegality nor it is based on misappropriation or misreading of evidence. Consequently, the said finding does not give rise to any question of law, much less substantial question of law, for adjudication in exercise of second appellate jurisdiction. Even otherwise, the said finding is the only reasonable finding that can be arrived at on proper appreciation of evidence on record.

Counsel for the appellant vehemently contended that release deed dated 17.12.2004 had been executed by defendant no.1 in favour of his wife defendant no.2 much before the filing of the suit on 21.02.2006. However, the said release deed was executed to frustrate the recovery of the disputed amount from defendant no.1 by the plaintiff. Consequently, the said alienation, which was made by defendant no.1 in favour of his own wife without any consideration, would not adversely affect the rights of the plaintiff to recover the suit amount from defendant no.1. Lower appellate court has not set aside the said alienation, but rightly held the decretal amount to be first charge on the disputed land.

For the reasons aforesaid, I find no merit in the instant second appeal, which is accordingly dismissed in limine.