Paramjeet Singh, J. - (1.) THIS regular second appeal is directed against the judgment and decree dated 20.01.2010 passed by learned Additional Civil Judge (Sr. Divn.), Dabwali whereby suit for recovery filed by plaintiff -appellant has been dismissed and against the judgment and decree dated 27.01.2012 passed by learned Additional District Judge, Fast Track Court, Sirsa whereby appeal preferred by appellant -plaintiff has also been dismissed. For convenience sake, reference to parties is being made as per their status in the suit.
(2.) THE detailed facts are already recapitulated in the judgments of the courts below and are not required to be reproduced. However, the brief facts relevant for disposal of this second appeal are to the effect that plaintiff -firm filed suit for recovery of Rs. 2,52,760/ - (Rs. 1,51,260/ - as principal and Rs. 1,01,500/ - as interest) on the basis of account books of plaintiff -firm. It was pleaded that the plaintiff -firm is doing the business of commission agents at Mandi Dabwali and Prem Parkash son of Hans Raj is partner of the said firm. The plaintiff -firm maintains its account books properly in regular course of business and same are produced before the Sales Tax and Income Tax Authorities from time to time. The defendants namely Pardeep Singh, Kuldee Singh and Lakhwinder Singh sons of Avtar Singh used to visit the shop of plaintiff. They agreed to bring their agricultural produce at the shop of the plaintiff for sale and also requested that the account be operated in the name of Pardeep Singh on behalf of all of them. On their request, an account was opened in the name of said Pardeep Singh and all the three brothers borrowed amount from, time to time and on 28.03.2002 Pardeep Singh confirmed balance of Rs. 1,48,000/ - and signed in the account book of the plaintiff -firm. It was further pleaded that all the three brothers borrowed money as detailed in para 5 of the plaint and signed the bahi entries of the plaintiff -firm. As per account books, an amount of Rs. 1,51,260/ - was outstanding against all the three brothers, which they had not repaid despite demand and legal notice dated 10.04.2003. It was pleaded that said Pardeep Singh has died and defendants No. 1 to 4 are his legal heirs and they are legally bound to pay the amount due against Pardeep Singh. It was also pleaded that all the three brothers also promised to pay interest @ 24% per annum on the amount due and in this manner, the defendants are liable to pay a sum of Rs. 2,52,760/ -. Hence, suit was filed. Defendants No. 1 and 4 to 6 resisted the suit and filed joint Written statement taking preliminary objections of maintainability, hats standi, concealment of facts and limitation. On merits, it was pleaded that Prem Parkash was not competent to file suit on behalf of the plaintiff -firm and the firm does not maintain its account books regularly. It was further pleaded that amount shown in the 'bahi' of the plaintiff -firm was false and fabricated one and that Pardeep Singh had opened account with the firm acting as agent of his father Avtar Singh and his other brothers Lakhwinder Singh and Kuldeep Singh used to sell the produce on behalf of their father, who had opened the account and used to operate the same and all the three brothers never requested the plaintiff -firm to advance money nor they confirmed any balance amount outstanding in the name of Pardeep Singh nor they agreed for payment of interest @ 2% per month. It was also pleaded that one account was opened by Avtar Singh but the plaintiff while manipulating the account books had filed two suits against the defendants, therefore, suit was barred under Order 2 Rule 2 CPC. Other averments in plaint were denied.
(3.) DEFENDANTS No. 2 and 3 also resisted the suit and adopted written statement filed by defendants No. 1 and 4 to 6.;