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1990 DIGILAW 478 (ALL)

Narbada Prasad Bidhua v. Radhey Shyam

1990-05-03

N.N.MITHAL

body1990
JUDGMENT N.N. Mithal, J. - This is a defendants appeal challenging the concurrent findings of the two courts below decreeing the plaintiffs suit based on a pronote and holding that the plaintiffs claim was within time in view of the payment made by him. 2. The main ground of attack was that decree of the trial court was set aside and the case was remanded for giving an opportunity to the defendants to adduce the evidence of the handwriting expert for disproving his signatures on the pronote and on the back of the pronote. During the trial an expert had been produced by the plaintiff to prove the signatures of the defendant 011 the pronote but the expert did not examine the defendants alleged signatures on the back of the pronote. The defendants signature and the endorsement appearing on the back of the pronote was proved by the plaintiff by examining other witnesses. 3. On remand the defendant did not persue his application for examining the expert and gave a statement to have it dismissed. The court on a consideration of material before it again decreed it, placing reliance on plaintiffs evidence in respect of the endorsement. 4. In appeal, the defendant contended that the pronote had not been properly proved. This contention was, however, rejected by the appellate court it is true that in paragraph 13 of the Judgement of the lower appellate court it has been wrongly mentioned that endorsement on the back of the pronote had been proved by the plaintiffs handwriting expert. This, however, was not the sole ground for dismissing the appeal. The court in fact, considered all the other relevant evidence and concluded that the endorsement had been duly proved. This contention of the appellant therefore has no merit. 5. The other contention of the appellant was that Section 13 mandates that money-lender must issue a receipt in respect of all payments made by the debtor to him. However, merely from non-issue of any receipt by the moneylender, no legal consequences follow. The contention was that if no receipt was issued it ought to be assumed that no payment had been made and that if that be so, the suit of the plaintiff will be barred by time. There is no warrant to accept this submission. 6. However, merely from non-issue of any receipt by the moneylender, no legal consequences follow. The contention was that if no receipt was issued it ought to be assumed that no payment had been made and that if that be so, the suit of the plaintiff will be barred by time. There is no warrant to accept this submission. 6. Even if a receipt be issued by the money lender in the ordinary course it would be m possession of the debtor himself. Law does not prescribe that money lender while issuing a receipt should maintain a counter-foil also with him. Therefore, if the Debtor were to suppress the receipt the money lender would find it impossible to prove that a receipt had been issued by him Besides if we accept the contention of the defendant that no payment had in fact been made by him then there would be no question of issuing the receipt at all in these circumstances, therefore, it is not possible to accept the appellants submission. 7. Mere non-issue of a receipt for the payment received by a money lender, Therefore, cannot give rise to a presumption of non-payment of money by the debtor. This issue must necessarily be decided on the evidence adduced in the case. 8. Having considered the Judgements of the two courts below, therefore, I am of the opinion, that no substantial question of law is involved in this appeal. The appeal is accordingly dismissed under order 41, Rule 11 C.P.C.