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2000 DIGILAW 525 (PNJ)

Pritam Dass v. Ajaib Singh

2000-05-16

R.L.ANAND

body2000
JUDGMENT R.L. Anand, J. - The delay of 35 days in filing the appeal stands condoned. 2. This is a defendants appeal and has been directed against the judgment and decree dated 16.11.1999 passed by Addl. District Judge, Fatehgarh Sahib, who dismissed the appeal of the present defendant Pritam Dass while affirming the judgment and decree dated 9.8.1995 passed by the trial Court which decreed the money suit for a sum of Rs. 24,000/- with proportionate costs. 3. Some facts can be noticed in the following manner :- Initially plaintiff Ajaib Singh filed a money suit for a sum of Rs. 32,640/- including interest at the rate of Rs. 1 per cent per month from 13.6.1987 to 12.6.1990 on the basis of pronote and receipt dated 13.6.1987 and the case set up by the plaintiff in the trial Court was that defendant took a sum of Rs. 24,000/- by way of loan for domestic and agricultural purposes on 13.6.1987 and executed a pronote and receipt on the same very day in his favour. The defendant agreed to pay the said amount within one month from the date of the execution of the pronote and receipt. It was also agreed that if the defendant returned the amount in question within one month, then the plaintiff would not be entitled to any interest. It has been further alleged by the plaintiff that in spite of the demand made by him, the defendant did not pay the amount. Hence this suit. The suit was contested by the defendant. He stated that the plaintiff was a money lender and that the suit is barred by time. On merits, the stand of the defendant was the Mohtmim of the property of Dera, but the Dera had mortgaged the property in favour of the son of the plaintiff. The plaintiff acted on behalf of his son and no cash transaction took place on 13.6.1987. Actually on that day the defendant paid the amount of the mortgage money executed by him in favour of the plaintiff. The plaintiff received the amount and executed a receipt on 13.6.1987, which is signed by Darshan Singh and Mohan Singh, who were the attesting witnesses. It was further alleged by the defendant that the receipt under reference was scribed by Gurmukh Singh and the amount as detailed in the plaint related to the mortgage. The plaintiff received the amount and executed a receipt on 13.6.1987, which is signed by Darshan Singh and Mohan Singh, who were the attesting witnesses. It was further alleged by the defendant that the receipt under reference was scribed by Gurmukh Singh and the amount as detailed in the plaint related to the mortgage. The plaintiff even admitted this fact at the time of making his statement before the Asstt. Collector IInd Grade, Samrala on 25.10.1989. With this broad defence, the defendant has prayed for the dismissal of suit. 4. The plaintiff filed a re-joinder to the written statement in which he reiterated his allegations by denying those of the written statement. 5. The pleadings of the parties gave rise to the following issues :- 1. Whether the defendant has taken loan of Rs. 24,000/- at the rate of 1% per month interest and executed pronote & receipt in favour of plaintiff ? OPP 2. Whether pronote is entitled to special costs to the tune of Rs. 2000/- ? OPP 3. Whether the pronote is not properly stamped ? OPD 4. Whether the pronote is without consideration ? OPD 5. Relief. 6. The parties led evidence in support of their respective cases and both the Courts held that pronote Ex. P1 and receipt Ex. P2 are duly proved and a consideration has passed in favour of the present appellant and in these circumstances the suit was decreed to the extent of Rs. 24,000/- with proportionate costs. The defendant filed first appeal before the Addl. District Judge, Fatehgarh Sahib, who for the following reasons as given in the judgment dated 16.11.1999 dismissed the same :- "It has been vehemently contended on behalf of the defendant-appellant that no loan was advanced by the plaintiff to him on 13.6.87, as a matter of fact defendant had mortgaged some land in favour of the son of the plaintiff which was got redeemed by him on 13.6.1987 after making payment of Rs. 35,000/- to the plaintiff. A receipt Ex. D6 was also executed in this regard. Therefore, the question of taking the loan of Rs. 24,000/- from the plaintiff does not arise. It was further urged that the plaintiff while appearing as witness in a case pertaining to Khasra Girdawri pending before A.C. 2nd Grade, Samrala, made a statement that he had received an amount of Rs. D6 was also executed in this regard. Therefore, the question of taking the loan of Rs. 24,000/- from the plaintiff does not arise. It was further urged that the plaintiff while appearing as witness in a case pertaining to Khasra Girdawri pending before A.C. 2nd Grade, Samrala, made a statement that he had received an amount of Rs. 24,000/- in instalments, therefore, question of payment on the basis of the alleged pronote Ex. P1 and receipt Ex. P2 does not arise. On the other hand, it has been urged on behalf of the plaintiff that the passing of the consideration to the tune or Rs. 24,000/- stands fully proved from the testimony of Mohan Singh (PW1), defendant himself had admitted the execution of the pronote and receipt Ex. P1 and Ex. P2 respectively. The defendant is a literate person, he made endorsement over the receipt Ex. P2 with regard to receipt of amount of Rs. 24,000/- in cash in English. Therefore, now he cannot wriggle out of the admissions made by him. The defendant did not plead payment in the written statement, therefore, no amount of evidence, if any beyond the pleadings can be taken into consideration for disposal of the appeal. The statement Ex. D1 and Ex. D2 were not specifically put to the witnesses, therefore, the same are not relevant and sufficient to rebut the evidence led by the plaintiff as such he prayed for dismissal of the appeal. Having given my thoughtful consideration to the rival contentions I do not find any merit in the arguments advanced on behalf of the defendant-appellant. Before laying my hands on the evidence as well as legal position involved in the matter, I deem it appropriate to discuss the pleadings of the parties. The plaintiff-respondent filed this suit for recovery of Rs. 32,640/- on the basis of Promissory Note and receipt Ex. P1 and Ex. P2 which have been fully proved on the record by PW1 Mohan Singh, an attesting witness to the receipt Ex. P2. His testimony has been supported by the plaintiff (PW2). The defendant has denied having executed any pronote and receipt, however, he submitted that no cash transaction took place on 13.6.1987, in fact on 13.6.1987 he had paid the amount of mortgage executed in favour of Gurmukh Singh, to the plaintiff after receiving the amount of the said mortgage a receipt was executed. The defendant has denied having executed any pronote and receipt, however, he submitted that no cash transaction took place on 13.6.1987, in fact on 13.6.1987 he had paid the amount of mortgage executed in favour of Gurmukh Singh, to the plaintiff after receiving the amount of the said mortgage a receipt was executed. The amount detailed in the plaint was with respect to the said mortgage amount. The payment of the mortgage amount has been admitted by the plaintiff in his statement before the A.C. Second Grade, Samrala on 23/25.10.1989 in a case pertaining to correction of Khasra Girdawri. From the above referred pleadings, it is amply clear that the plaintiff did not take any plea with regard to the payment of the amount of Promissory Note as advanced to him on 13.6.1987. In order to prove the execution of the Promissory Note Ex. P2 besides the statements of Mohan Singh PW1 and Ajaib Singh plaintiff (PW2) defendant Pritam Dass while appearing in the witness box admitted the execution of the Promissory Note and passing of the consideration under it. The relevant extract from his statement is reproduced as under :- "I am literate man and I know how to read and write in Punjabi and English. Q. Whether the pronote and receipt Ex. P1 & Ex. P2 bear your signatures ? When the witness was asked as to whether the signatures and date on revenue stamps of Ex. P1 are his or not, he evaded the reply and stated that he put his signatures in connection with some redemption case. It is a fact that the pronote and receipt were scribed by Gurmukh Singh. It is correct that it is for a sum of Rs. 24,000/-. It is correct that it is executed in favour of Ajaib Singh. It is correct that on Ex. P2 whatever written is with my own hand. It is correct that witnesses are the same as mentioned in receipt. I do not remember the details of the amount paid in instalments." The admission with regard to execution of the Pronote and Receipt Ex. P1 and Ex. P2 impel this Court to reproduce the writing made by defendant himself on the receipt Ex. P2 which he admittedly made in his own hand :- "Received Rs. 24000/- only." Not only this, the defendant even in his examination-in-chief deposed that out of the amount of Rs. P1 and Ex. P2 impel this Court to reproduce the writing made by defendant himself on the receipt Ex. P2 which he admittedly made in his own hand :- "Received Rs. 24000/- only." Not only this, the defendant even in his examination-in-chief deposed that out of the amount of Rs. 34,700/- he paid Rs. 10,700/- in cash and executed a Pronote and Receipt for the remaining amount of Rs. 24,000/- which is Ex. P1 and Ex. P2. This amount of Rs. 24,000/- was paid by him in the instalments. Now from this part of the statement it appears that the plaintiff wants to shift his plea by pleading payment which has not been taken initially by him in his written statement. In the written statement he had stated that the entire amount of mortgage was paid under a receipt. Now he wants to show that he had executed a Pronote and Receipt with regard to amount of Rs. 24,000/- which he had paid in instalments to the defendant. So far as the statement of Mohan Sigh and Ajaib Singh recorded before the Revenue Authorities (Ex. D1 and Ex. D2) are concerned, the same did not in any way help the case of the defendant. These statements Ex. D1 and Ex. D2 were not specifically put to the plaintiff as well as Mohan Singh. They were not confronted with these statements which he wants to argue now before me. It is well settled that unless a witness is specifically confronted with his portion of statement, the same cannot used to discredit that witness. Had a specific portion of the statement been put to the witness, then he would have been able to explain as to how and in what circumstances he had made such statement. In any case Ajaib Singh did not say anywhere that he had received the amount of Promissory Note from the defendant. But there is a discussion of mortgage amount. The statement of Mohan Singh PW is more clarificatory in nature. Both these statements were recorded on the same date i.e. on 25.10.1989. In his statement Ex. D2, Mohan Singh clearly deposed that Pritam Dass had paid only Rs. 10,000/- to the plaintiff and he had executed a pronote with regard to the remaining amount which he had not paid till today. Both these statements were recorded on the same date i.e. on 25.10.1989. In his statement Ex. D2, Mohan Singh clearly deposed that Pritam Dass had paid only Rs. 10,000/- to the plaintiff and he had executed a pronote with regard to the remaining amount which he had not paid till today. Thus this court has no hesitation to conclude that the defendant had executed the Pronote and Receipt Ex. P1 and Ex. P2 respectively and had received a sum of Rs. 24,000/- on the basis of the said Pronote and Receipt. On analytical study of mortgage deed Ex. D2 and the recital in the redemption receipt, it appears that the plaintiff had paid the amount of mortgage to the defendant in instalments. Therefore, he wanted to compensate him by paying him Rs. 24,000/- without interest which he had received on redemption with interest, so that defendant may not have any grudge in his mind and utilize the amount of Rs. 24,000/- for a limited period. Thus after receiving the redemption amount from the defendant, he advanced a sum of Rs. 24,000/- to the plaintiff without interest. Under these circumstances the admissions made by the plaintiff in the statement made by Mohan Singh PW impel this court to conclude that the amount of Rs. 24,000/- was advanced by the plaintiff to the defendant on the Promissory Note Ex. P1 and receipt Ex. P2, therefore, the findings returned by the trial Court on issue No. 1 are correct and do not call for any interference by this Court. The appellant has not advanced any argument in order to assail the findings returned by the trial Court on Issues No. 2 to 4, therefore, the findings returned by the court on these issues remain unchanged." 7. Aggrieved by the judgments and decrees of the Courts below, the present appeal. 8. The very first argument, which was raised by the learned counsel for the appellant, was that there is no satisfactory proof with regard to the passing of the consideration. He submitted that it is highly improbable that within two hours of the redemption of the mortgage the amount has been advanced to the defendant. The argument of the learned counsel for the appellant may look alluring at the first instance but on deeper scrutiny I found it without any force. He submitted that it is highly improbable that within two hours of the redemption of the mortgage the amount has been advanced to the defendant. The argument of the learned counsel for the appellant may look alluring at the first instance but on deeper scrutiny I found it without any force. The defendant is a literate person and he knows how to read and write Punjabi and English. He has admitted the due execution of the pronote and has categorically stated that he scribed the pronote and receipt in favour of the plaintiff. In these circumstances, the onus heavily is upon the defendant to show that no consideration has passed in his favour. This aspect of the case has been considered properly by both the Courts below and concurrent finding of fact based on proper appreciation of evidence cannot be disturbed in regular second appeal. 9. Faced with this difficulty, the learned counsel for the appellant then submitted that pronote, in fact, is a chargeable bill of exchange for the purpose of stamp and as such it is not admissible in evidence. This argument of the learned counsel can be rejected on two grounds. Firstly, that no argument was addressed by the appellant before the first Appellate Court on issues No. 2 to 4, as is evident from the following observations of the Court :- "The appellant has not advanced any argument in order to assail the findings returned by the trial court on Issues No. 2 to 4, therefore, the findings returned by the trial court on these issues remain unchanged." Otherwise also the suit of the plaintiff could always be decreed for the consideration received and had by the defendant. There is no merit in this appeal. Dismissed. Appeal dismissed.