R.S.A No.4386 of 2009 (O&M) ::1:: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A No.4386 of 2009 (O&M) Date of decision : December 07, 2012 Padam Kumar and another, .....Appellants v.
Surinder Kumar and another, .....Respondents *** CORAM : HON'BLE MR.JUSTICE AJAY TEWARI *** Present : Mr.MPS Kohli, Advocate for Mr.Vishal Aggarwal, Advocate for the appellants.
Mr.Amit Gautam, Advocate for respondent No.1.
Whether Reporters of Local Newspapers may be allowed to see the judgment ?.”
2. To be referred to the Reporters or No.?.”
3. Whether the judgment should be reported in the Digest ?.
*** AJAY TEWARI, J (Oral) This appeal has been filed against the judgment and decree of the lower appellate Court reversing that of the trial Court and thereby decreeing the suit of the plaintiff/respondent No.1 for recovery of ` 5 lacs along with interest @ 12%.
The case of the plaintiff/respondent No.1 was that the appellants had obtained loan of ` 1 lac each on five occasions between 7.5.1999 to 12.6.1999 (total ` 5 lacs) but had refused to repay the same resulting into the present suit.
In the written statement, the case of the appellants was of R.S.A No.4386 of 2009 (O&M) ::2:: blanket denial.
They denied their identity, denied knowing respondent No.1, and also denied taking any money as loan.
While leading evidence, however, they sought to set up a new case by which they wanted to assert that actually respondent No.1 had sold some gold ornaments to them and initially they had issued receipts as security for paying the price of the said gold ornaments which were subsequently duly paid.
The trial Court accepting this evidence dismissed the suit.
The lower appellate Court, however, held that no such plea having been taken in the written statement, it was not open to the appellants to lead evidence of any other transaction.
On merits, the lower appellate Court held that even the transaction which was sought to be relied upon was of the year 1998 and would not explain the receipts of 1999 and consequently decreed the suit.
Following questions have been proposed :- “ a) Whether the plaintiff/respondent has failed to prove that he advanced any loan to the appellants ?.
b) Whether the receipts Ex.P1 to P5 are admissible in evidence ?.
c) Whether the Courts below have misread and misconstrued the pleadings of the parties ?.
d) Whether the judgment and decree passed by the appellate Court is sustainable in the eyes of law ?.
e) Whether the alleged payment of ` 1 lac in cash is permissible under the Income Tax Rules and it can be taken into consideration ?.”.
It would be seen that questions (a).(c) and (d) are pure questions of fact.
Counsel for the appellants has taken me not only through the judgments of the Courts below but also the evidence recorded but has not been able to persuade me that the findings recorded are either based on no evidence or are based on such misreading of evidence as would render R.S.A No.4386 of 2009 (O&M) ::3:: the same so perveRs.as to be liable for interference under Section 100 of the CPC.
As regards question (c) , no argument has been advanced by counsel for the appellants that the said receipts are not admissible in evidence.
As regards question (e).again this question is between respondent No.1 and the Income Tax Department.
The mere fact that the transaction may or may not be infraction of the Income Tax Act would not make it per-se illegal so as to render a suit for recovery non-maintainable.
Consequently, holding the questions proposed against the appellants, this appeal is dismissed with no order as to costs.
( AJAY TEWARI ) December 07, 2012.