SHABEG SINGH Vs. RAJ KUMAR

JUDGEMENT

(1.) THE present regular second appeal filed by the defendant is directed against the judgment and decree dated 4.6.2008 passed by the lower appellate Court whereby that of the trial Court dated 19.8.2005 dismissing the suit of the plaintiff for recovery of Rs. 6,25,000/- was set aside and the suit of the plaintiff was partly decreed.

(2.) PUT shortly, the facts of the case are that the defendant had been selling his crops to the plaintiff firm and also used to take amount on credit from time to time and had been returning the same which was credited in his account. It was pleaded that on 18.10.1997, the defendant visited the shop of the plaintiff and enquired about his account, on which a total sum of Rs. 1,73,378/- (including interest of Rs. 13,713/-) was outstanding towards him. The defendant took another sum of Rs. 2,26,622/- in cash from the plaintiff and also executed a pronote and receipt to the tune of Rs. 4 lacs on the same day, i.e. 18.10.1997 in the presence of the witnesses and agreed to pay interest at the rate of 2% per month. It was further pleaded that a dispute arose between the parties and a compromise was got effected between them vide agreement dated 30.7.1998. In the said compromise, the defendant admitted the outstanding amount of Rs. 4,00,000/- and the execution of the pronote and receipt dated 18.10.1997 and agreed to pay an amount of Rs. 3,65,000/- to the plaintiff upto 31.10.1998, in default, the defendant would pay the amount along with interest . It was further agreed in the compromise that the defendant would withdraw the criminal case filed against the plaintiff and the plaintiff would return the pronote and receipt to the defendant after receiving the aforesaid amount. According to the plaintiff, the defendant made a payment of Rs. 56,690/- on 7.5.1999 through M/s Siri Ram Kishan Chand and sons and thereafter failed to make the payment of the outstanding amount and a total amount of Rs. 6,25,000/- (Rs. 3,08,310/- as principal plus Rs. 3,16,690/- interest) is outstanding and recoverable from the defendant after deducting the amount of Rs. 56,690/- paid on 7.5.1999. The plaintiff requested the defendant to make the payment of the outstanding amount but he refused to do so and that gave rising to the filing of the suit.

(3.) THE trial Court on appreciation of the oral as well as the documentary evidence adduced by the parties held that the plaintiff failed to prove the execution of the pronote and receipt dated 18.10.1997 on the basis of which compromise dated 30.7.1998 was effected. It was further held that the plaintiff was not entitled to the recovery of Rs. 6,25,000/- from the plaintiff and that the suit of the plaintiff was time barred. Accordingly, the trial court vide judgment and decree dated 19.8.2005 dismissed the suit of the plaintiff. Feeling aggrieved, the plaintiff approached the lower appellate court which vide judgment and decree dated 4.6.2008 accepted the appeal. The lower appellate court while setting aside the judgment and decree of the trial court held that the suit was filed within limitation. The lower appellate court recorded that the parties had entered into a written compromise/agreement on 30.7.1998 whereby the defendant had accepted the liability of outstanding amount of Rs. 3,65,000/- which was to be deposited with the respondent-plaintiff in two installments, i.e. first installment of Rs. 1,65,000/- on 31.10.1998 and second installment of Rs. 2,00,000/- on 15.5.1999. Further, in the criminal complaint filed by defendant-Subeg Singh against Raj Kumar-plaintiff, an application, Ex.P11, was filed by the defendant wherein he had admitted that he had entered into a compromise for Rs. 3,65,000/- and the criminal court after recording the statement of the defendant on 29.9.1998 ordered the complaint to be dismissed as withdrawn vide Ex.P7/A. Accordingly, it was held that the defendant-appellant had admitted the compromise between him and the plaintiff concerned by virtue of Ex.P11 and the suit of the plaintiff was decreed to the extent that he was entitled to recover Rs. 3,65,000/- along with interest at the rate of 12% per annum from the date of execution of the pronote, i.e. 18.10.1997 till the date of decision of the appeal, i.e. 4.6.2008, and future interest at the rate of 6% per annum from 4.6.2008 till the date of realization.