SHANTI DEVI Vs. PAWAN KUMAR

JUDGEMENT

(1.) Heard the learned counsel. According to the case of the appellants, they had filed a suit against Kishen Kumar for recovery of the amount lent to him along with the interest. It is the contention of the appellants that Rs. 25,000/- was paid by the appellants to Kishan Kumar on 3.11.1972 and it was agreed that interest would be paid at the rate of 12% per annum. The suit was filed after the death of Kishan Kumar. The suit was dismissed. The appeal filed over the suit was also dismissed and hence this Regular Second Appeal.

(2.) The first question is of limitation. The Courts below have considered this point and held against the appellants. The suit having been filed on 6.10.1987 was held to be beyond the period of limitation. It is the contention of the appellants that Kishan Kumar paid Rs. 10/- on 19.11.1975, 18.10.1978, 12.10.1981 and 6.10.1984 towards the interest and made endorsement on the back of the receipt.l He also wrote some letters on 19.10.1975, 18.10.1980 and 12.10.1981 acknowledging the loan amount due with interest. This contention was not accepted by the Courts below. It has been observed by the lower appellate Court that it will be unbelievable that only few days before the expiry of period of the limitation meagre amount of Rs. 10/- would be paid by the deceased who had taken the loan and that too just before the expiry of the period of limitation. Regarding signatures of Kishan Kumar, it has been observed by the lower appellate Court that Handwriting Expert was produced by the Respondents who compared the signatures of Kishan Kumar on various documents. The signatures of Kishan Kumar were found totally different from his signatures on some documents from the office of Sale Tax and Income Tax Department. The signatures of Kishan Kumar were found totally different from his signatures on the disputed documents. Moreover, the loan was allegedly given by Harish Chander Jain, who has stepped into the witness box. Though, the suit was filed by Harish Chander Jain through his attorney Jainender, yet Jainender also did not enter into the witness box. Another attorney of Harish Chander Jain is Anil Kumar, who had been examined as a witness.

(3.) When the signatures of Kishan Kumar were disputed and Kishan Kumar himself was not living, there was no reason why Harish Chander Jain, who allegedly lent the amount to Kishan Kumar, has not entered into the witness box. He had the best knowledge and though by giving power of attorney, rights to do particular acts such as filing of suit etc. can be given to a person holding the power of attorney, the personal knowledge cannot be transferred and this is a case where a person having personal knowledge has not entered into the witness box though he was the complainant in the suit.