Naresh Kumar Sanghi, J.

CM-449-C-2014:

1. Prayer in this application, filed under Section 151, CPC, is for condonation of delay of 126 days in re-filing the appeal.

2. After hearing learned counsel for the applicant/appellant and going through the contents of the application, which is duly supported by an affidavit, delay of 126 days in re-filing the appeal is condoned.

3. Civil Miscellaneous application stands disposed of.

RSA-192-2014:

4. Present regular second appeal has been filed by the appellant, Harjinder Singh, son of Avtar Singh, challenging the judgment and decree dated 18.3.2013, passed by learned Additional District Judge, Shaheed Bhagat Singh Nagar, whereby the appeal filed by Harjinder Singh challenging the judgment and decree dated 7.8.2012, passed by learned Additional Civil Judge (Senior Division), Shaheed Bhagat Singh Nagar, arising out of Civil Suit No. 81 of 2007, was dismissed.

5. Brief facts of the case are that the respondent/plaintiff was a registered firm and dealing in food grains as commission agent at Dana Mandi, Rahon, Tehsil Nawanshahr, District Shaheed Bhagat Singh Nagar, through its partners, namely, Devinder Nath and Ranjit Singh. Defendant No. 1, Avtar Singh, was dealing with the plaintiff firm for last several years. Defendant No. 1 used to take loan from the plaintiff firm from time to time by putting his thumb mark on the daily roznamcha (day-to-day account book) duly maintained by the plaintiff firm. Defendant No. 1 was selling his agricultural produce with the plaintiff firm. Defendant No. 2 (appellant) was also taking loan from the plaintiff firm on behalf of his father, i.e. defendant No. 1, after putting his signatures on the daily roznamcha. The defendants had agreed to pay interest @ 1% per month to the plaintiff firm on the amount borrowed by them. 'J' forms were being issued by the plaintiff firm to the defendants. The defendants had promised to sell their entire agricultural produce with the plaintiff firm and to clear the borrowed amount along with interest. As per the calculations by the plaintiff firm, a sum of Rs. 2,22,105.42 paise (Rupees two lacs twenty-two thousand one hundred five and forty-two paise) was due against defendant No. 1, besides future interest. Defendant No. 1 with mala fide intention started selling his agricultural produce to other commission agents and failed to clear dues against him (defendant No. 1), in spite of repeated demands by the plaintiff firm through its partners. When the defendants failed to pay the amount, then the plaintiff had no other remedy except to file the suit before learned Civil Judge (Senior Division), Shaheed Bhagat Singh Nagar.

6. On notice, the defendants appeared through their counsel and filed written statement taking preliminary objections that the plaintiff had no locus standi to file the suit; the suit was not maintainable; the plaintiff had not come to the Court with clean hands; it was denied that the defendants had borrowed the money from the plaintiff firm or ever signed or thumb marked on the daily roznamcha or any bahis in token of receipt of the loan amount; the defendants were selling the agricultural produce to the plaintiff firm and it was paying the amount to the defendants as per its convenience; the plaintiff firm never issued 'J' forms in favour of the defendants; and that only kaccha parchies were issued by the plaintiff firm to the defendants.

7. The plaintiff had not filed any replication to the reply filed by the defendants.

8. From the pleadings of the parties, the following issues were framed:-

"1. Whether the plaintiff is entitled to recover Rs.2,22,105.42 paise along with interest as prayed? OPP

2. Whether the suit is not maintainable in the present form? OPD

3. Relief."

9. In order to prove its case, plaintiff firm examined its partner, Devinder Nath as PW-1, who tendered his affidavit, to be read in evidence, and proved on record the documents (Exs. P-1 to P-50) and thereafter the evidence of the plaintiff was clo

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