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ALKA SARIN, J. –

1. The present regular second appeal has been preferred by the plaintiff-appellant challenging the judgment and decree dated 17.08.2011 passed by the First Appellate Court whereby the appeal filed by the defendant-respondent was allowed and the judgment and decree dated 04.12.2009 passed by the Trial Court was reversed.

2. The brief facts relevant to the present lis are that the plaintiff-appellant herein filed a suit for recovery of Rs.46,963/- on the ground that the plaintiff-appellant is running a commission agency in the name and style of M/s Prem Nath Jiwan Ram and that the plaintiff-appellant is the sole proprietor of the firm. It was further averred in the plaint that the defendant-respondent had a running account for the last four years and he used to take loans from the firm. It was further the case set up that on 30.11.2000 the defendant-respondent took a sum of Rs.20,000/- through cheque, on 01.05.2001 he took Rs.4,400/- through cheque, on 09.06.2001 he took a sum of Rs.4,300/-, on 12.06.2001 he again took a sum of Rs.1,225/- and on 31.12.2001 he took a sum of Rs.5,386/-. Thereafter, on 31.12.2001, after taking loan of Rs.5,386/-, the defendant-respondent got the outstanding amount calculated in his name which came to Rs.35,311/- towards principal amount. It was further the case that despite promises, the amount had not been repaid. A legal notice was issued on 08.11.2004. However, no reply was sent to the legal notice. Hence, the suit for recovery. The defendant-respondent filed his written statement controverting all the assertions in the plaint. Besides the preliminary objections, on merits the stand taken by the defendant-respondent was that he is an employee of the Market Committee, Thanesar since 1985 and that he had never obtained any loan from the plaintiff-appellant. The legal notice was served only with a view to create evidence. He also denied entries in the bahi khattas. It was further the case that the defendant-respondent was not an agriculturist. Replication was filed controverting the assertions in the written statement and reiterating those in the plaint.

3. On the basis of the pleadings of the parties the following issues were framed :

1. Whether the plaintiff is entitled for a decree of recovery of Rs.46,963/- along with interest @ 1% per month as prayed for ? OPP

2. Whether the suit of the plaintiff is not maintainable ? OPD

3. Whether the suit is time barred ? OPD

4. Whether the suit is bad for want of non-joinder of necessary parties? OPD

5. Whether the suit is bad for want of proper court fee ? OPD

6. Whether the plaintiff is estopped by his own act and conduct from filing the present suit ? OPD

7. Relief.

4. The Trial Court decreed the suit vide judgment and decree dated 04.12.2009. Aggrieved by the same an appeal was filed by the defendant-respondent which appeal was allowed by the First Appellate Court vide judgment and decree dated 17.08.2011 and the suit was accordingly dismissed. Hence, the present regular second appeal.

5. Learned counsel for the plaintiff-appellant has vehemently contended that the First Appellate Court has erred in reversing the well considered judgment and decree dated 04.12.2009 passed by the Trial Court. It is further the contention that the bahi khatta entries produced on the record as Ex.P1 and Ex.P2 (Hindi translation), Ex.P8 and Ex.P9 respectively, clearly showed that there were entries against the name of defendant-respondent.

6. Heard.

7. In the present case the only reliance of the plaintiff-appellant was on the bahi khatta entries which were not signed by the defendant-respondent. Though an assertion was made in the plaint that the amounts were given as loan vide different cheques, however, neither the details of the cheques nor the account number/account statement was produced by the plaintiff-appellant. It was incumbent upon the plaintiff-appellant to prove his case by leading affirmative evidence. The onus to prove that the loan was taken by the defendant-respondent lay heavily on the plaintiff-appellant who failed to discharge the same. It has further been noticed by the First Appellate Court that even the record was not summoned from the concerned Bank to show that the amount had been debited from the account of the plaintiff-appellant. The defendant-respondent had denied the bahi khatta entries and hence the onus lay on the plaintiff-appellant to prove the signatures in the bahi khatta entries. No handwriting expert was produced to show that the signatures in the bahi khatta entries are that of the defendant-respondent. No other argument has been raised by learned counsel for the plaintiff-appellant.

8. In view of the above, no question of law, much less any substantial question of law, arises in the present case. The appeal being devoid of any merit is accordingly dismissed. Pending applications, if any, also stand disposed off.

Appeal dismissed.

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