JAGAN NATH PATHAK v. M/S DHALIWAL TRADING AGENCY AND ORS.

RSA-4278-2015 (O&M) - 1 -

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

224 RSA-4278-2015 (O&M) Date of decision: 15.10.2025 Jagan Nath Pathak ...Appellant(s) Vs.

M/s. Dhaliwal Trading Agency and others ...Respondent(s)

CORAM: HON'BLE MS. JUSTICE NIDHI GUPTA

Present:- Mr. Ankush Rampal, Advocate for Mr. Rahul Rampal, Advocate for the appellant. ***

NIDHI GUPTA, J.

Present Second Appeal has been filed by the plaintiff against the concurrent judgments and decrees of the learned Courts below; whereby the suit filed by the plaintiff for recovery of Rs.3,52,084/- has been partly decreed for Rs.2,33,800/- by both the Courts below.

2. Office report indicates that the respondents No. 4 to 8 stand served by way of publication vide order dated 20.01.2020; cutting of the original newspaper dated 18.03.2020 is on record as flag 'A'. Yet, none has appeared on behalf of the said respondents on the subsequent dates of hearing. As such, the appeal being of the year 2015, is being heard and decided in the absence of the said contesting respondents No. 4 to 8.

3. Brief facts of the case are that defendant-respondent No.1- Firm through its Attorneys defendants No.2 and 3 was running commission agency business at New Grain Market, Doraha. One Avtar

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Singh, now deceased and represented by defendants No. 4 to 8, was also a partner of defendant No.1-firm. It was the pleaded case of the plaintiff that defendant No.1-Firm through its partners i.e. Dalbir Singh/defendant No. 2 and Avtar Singh, had borrowed a sum of Rs.2,33,800/- on 05.12.1998 from the plaintiff and had agreed to repay the same with interest @ 2% p.m. After availing loan, defendant No.1 had executed a Receipt dated 05.12.1998 on letter head of the Firm/defendant no.1. The said Receipt was written by Ashok Kumar, Munim of defendant No.1. Defendant No.2 and Avtar Singh had put their signatures on the same in the presence of Sohan Lal and Banarsi Dass, who had also appended their signatures. Both the partners on behalf of defendant No.1-firm had issued Receipt to the plaintiff with the assurance that principal amount and interest will be repaid to the plaintiff. However, despite repeated demands, defendants had refused to repay the loan. Accordingly, present suit was instituted by the appellant on 16.01.2001.

4. The defendants No. 1 and 2 had first appeared before the Trial Court and later on absented themselves and were accordingly proceeded against ex parte. Defendant No.3 did not put in appearance at all.

5. Defendants No. 4 to 8/respondents No. 4 to 8 herein/LRs of the deceased Avtar Singh who is deceased partner of the defendant no.1 Firm, had appeared and filed written statement contesting the suit and had pleaded that Avtar Singh had not taken any loan from the plaintiff on 05.12.1998; that the loan Receipt issued by defendant No.2 is a forged

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and fabricated one. It was alleged that conspiracy has been hatched by defendants No. 2 and 3 after the death of Avtar Singh in order to grab the land of defendants No. 4 to 8. It was stated that if Avtar Singh had received the loan in cash from the plaintiff then he would have issued Receipt for the same; and Receipt would not have been issued by defendant No. 2 as alleged. It was stated that defendants No. 2 and 3 had got filed number of false and frivolous suits against respondents No. 4 to 8 in order to grab their ancestral property. Moreover, defendant-firm required no such amount and there was no occasion for Avtar Singh to borrow such a huge amount from the plaintiff. It was further averred that Avtar Singh died intestate on 06.05.1999. He was not owning any personal property. He was only Karta of Hindu Joint Family of defendants no.5 to 8 and all the property in the hands of Avtar Singh was ancestral coparcenary properties. Defendants no.5 to 8 have interest in the said properties since their birth. The defendants no.4 to 8 have not inherited any personal property of Avtar Singh and are not liable to pay any debt of Avtar Singh. In fact, Avtar Singh had not taken any loan from the plaintiff for defendant no.1 or for himself. Denying rest of the averments of the plaint, it was requested that suit of plaintiff be dismissed.

6. Upon appraisal of the pleadings and the evidence led by the parties, the Learned Trial Court vide judgment and decree dated 08.12.2011 had decreed the suit of the plaintiff only for recovery of Rs.2,33,800/- alongwith interest @ 12% p.a. from 05.12.1998 till the date of decree. The appeal filed by the plaintiff was dismissed by the learned

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District Judge, Ludhiana vide judgment and decree dated 21.11.2014. Hence, the present second appeal by the plaintiff.

7. It is inter alia submitted by learned counsel for the plaintiff that the learned Courts below failed to consider that partnership firm was duly admitted by defendant/respondents and Avtar Singh was partner of the said firm. The loan has been admitted by the defendants. Even Receipt has been admitted to have been scribed by Ashok Kumar, Munim of the defendant-firm. As such, there is nothing on record to suggest whether Receipt is forged and fabricated document. The above facts amount to admission of the Receipt by the defendants. Moreover, once the execution of Receipt was proved, onus was upon the defendants to prove that they have not availed any loan by placing on record balance sheet et cetera, but no such evidence has been produced by the defendants.

8. It is further submitted by learned counsel for the appellant that Ld. Courts below had failed to consider that signatures of one of the partners are duly proved on the receipt and the said receipt is on letter head of the partnership firm and the said loan was taken for the business of the firm and thus all the parties/firm would be responsible for the acts and liabilities which have been created by one of the partners on the behalf of the firm.

9. It is accordingly prayed that the present appeal be allowed; and the impugned judgments and decrees of the Courts below be set aside.

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10. No other argument is raised on behalf of the appellant. I have heard ld. counsel and perused the case file in great detail. I find no merit in the submissions advanced by counsel for the appellant.

11. Learned Courts below, on appraisal of evidence adduced by the parties, have returned a positive finding that after the death of Avtar Singh, the defendant no.1-firm stood dissolved; that the defendant-firm had neither borrowed any amount as loan through Avtar Singh, nor had agreed to pay the interest; that Avtar Singh had never borrowed loan amount of Rs.2,33,000/- or any other amount; and that the alleged signatures of Avtar Singh on the Receipt dated 05.12.1998 are forged and fabricated. This was proved to be so from the evidence of Handwriting Expert DW2. DW2 Forensic Document Expert had examined and compared the admitted and sample signature of Avtar Singh on the documents mentioned in report and had opined that signature Mark Q2/ i.e. the signature on the Receipt is a freehand and forged signature. No evidence to the contrary to discard the evidence of DW2 was produced by the plaintiff.

12. The plaintiff had subsequently moved an application under Section 151 CPC for permission to examine his own Handwriting Expert by way of additional evidence. However, it has been admitted by learned counsel for the appellant during course of arguments that the said application has been dismissed upto this Court in view of the fact that the plaintiff had already cross-examined DW2/Handwriting Expert produced by the defendant in rebuttal in his evidence. Thus, Plaintiff failed to prove

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that Receipt Ex.P3 is bearing the signatures of Avtar Singh. From all the evidence on record, the plaintiff was unable to prove that the loan was advanced to Avtar Singh on behalf of defendant No.1-firm. Accordingly, learned Courts below had held that loan as per Receipt Ex.P3 stands obtained by defendant No.2 in his personal capacity; and signature of Avtar Singh had been forged thereupon. Accordingly, it was decreed as follows: -

"As a result of my discussion above, suit of plaintiff is decreed against defendant no.2 only for recovery of Rs.2,33,800/- with interest at the rate of 12% per annum from 5.12.1998 till the date of this decree with further future interest at the rate of 6% per annum till actual realization along with all costs."

13. It is also relevant to note that the plaintiff had himself not stepped into the witness box. The evidence of PW1 Attorney holder and son-in-law of the plaintiff, could not be relied upon as admittedly PW1 Bharat Bhushan was not revealed to the alleged loan transaction; and was admittedly not present at the time of advancement of loan. Thus, PW1 had no personal knowledge about the advancement. Moreover, Plaintiff was admittedly a resident of USA and was stated to have advanced money in India but there was no proof as to how when and in what manner was the amount transmitted by the plaintiff to the defendants. There is also nothing on record to indicate that the requisite permissions were taken by the plaintiff from Government of India for advancement of the said loan.

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14. Plaintiff further failed to prove that loan was taken by Dalbir Singh on behalf of defendant No.1-firm. Mere fact that Receipt Ex.P3 is drawn on the letter head of a firm or a mere description in said receipt that executant is partner of said firm is not sufficient to bind the firm and partners relating to the said transaction. No partnership deed which was operative on 05.12.1998 is proved on record by plaintiff. Plaintiff further failed to prove that the partners of defendant-firm had implied authority to borrow money from private persons on behalf of the Firm. Plaintiff also failed to summon ITR of firm relating to relevant period to prove that the beneficiary of amount mentioned in receipt Ex.P3 was the said firm. Plaintiff did not summon any person to prove account books of firm to establish that the borrowed amount of Rs.2,33,800/- was reflected in the account books of the said firm. Thus, it could not be said that the amount was borrowed by executant of Ex.P3 for the purpose of firm or to utilize it for business of firm. Thus, Liability of all partners including Avtar Singh and firm could not be fastened on the basis of Ex.P3 on account of principle of implied authority provided under Section 19 of Partnership Act.

15. It was further fully proved that Receipt Ex.P3 was executed by defendant No.2. Trial Court, therefore, rightly held that defendant No.2 in his individual capacity is liable to repay the amount of Receipt Ex.P3 alongwith interest. The plaintiff succeeded to prove his claim only against defendant No.2; and therefore, suit was held to be misconceived and not maintainable against defendants No. 1 and 3 to 8.

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16. Learned counsel for the appellant is unable to dispute or controvert the above said facts and findings of learned Courts below.

17. In view of the above, no ground is made out to interfere in the impugned judgments and decrees. The present Regular Second Appeal is hereby dismissed.

18. Pending applications, if any, stand disposed of.

15.10.2025 (NIDHI GUPTA)

Divyanshi JUDGE Whether speaking/reasoned: Yes/No Wnhether reportable: Yes/No

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