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2005 DIGILAW 335 (JK)

J&K Bank Ltd. v. Attar Poultry Farm

2005-12-01

J.P.SINGH

body2005
1. This is an appeal against decree dated 22-5-1999 of learned 1st Additional District Judge (Bank Cases), Jammu, whereby he has dismissed the suit of the appellant. 2. In a suit for recovery of Rs. 96,904.43, filed by the Jammu and Kashmir Bank Limited against M/s Attar Poultry Farm and another, ten issues came to be framed by the learned trial Judge. The issues read thus: 1. Whether the suit is barred by limitation? OPD 2. Whether Sh. Subash Chander Sharma is authorized to sign and verify the plaint? OPP 3. Whether defendant No.1 has executed loan documents in favour of plaintiff? OPP 4. Whether defendant No.1 has executed confirmation receipts admitting outstanding amount of Rs. 52,593.43 ps and Rs. 94,934.43 ps as on 31.12.1986 and 31-3-1992 respectively and demand promissory note on 1.1.87 in favour of plaintiff-bank? OPP 5. Whether the plaintiff is entitled to recover suit amount from the defendants? 6. Whether the defendant is entitled to the debt relief of Rs. 10,000/- and subsidy of 25%? OPD-1 7. Whether Deposit Insurance and Credit Guarantee Corporation is a necessary party? OPD-2 8. Whether the deed of guarantee is not admissible in evidence, if so, how? OPD-1 9. Whether Deed of Guarantee has been executed by defendants No.2 and 3? OPP 10. Relief? 3. After evaluating evidence led by the parties, learned District Judge, decided Issues Nos.2, 3, 5, 6, 7, 8 and 9 in favour of the Bank. Issues Nos.1 and 4 were, however, decided against the Bank. 4. Shri A.V. Gupta, learned senior counsel appearing for the appellant-Bank, submits that the learned District Judge has erred in appreciating evidence led by the appellant and has ignored to take into consideration the admission of the respondents. Learned senior counsel argues that the documents relied upon by the plaintiff-Bank were put to the defendants, who had recorded admission of their signatures on the documents relied upon by the plaintiff-Bank. Learned senior counsel submits that the trial Court has erred in omitting to consider the endorsement made by the defendants admitting their signatures on the documents. It is further urged that Shri Jaswant Singh, in his statement on oath, had admitted the receipt of loan and execution of documents. 5. Learned senior counsel submits that the trial Court has erred in omitting to consider the endorsement made by the defendants admitting their signatures on the documents. It is further urged that Shri Jaswant Singh, in his statement on oath, had admitted the receipt of loan and execution of documents. 5. Shri B.L. Kalgotra, learned counsel for the defendants-respondents, on the other hand, submits that the suit is barred by time and the acknowledgement alleged to have been signed by his clients, appears to have been signed after the expiry of period of limitation. 6. I have considered the submissions of learned counsel for the parties and gone through the evidence on record as also the documents forming part of the records. 7. Learned District Judge, while returning finding on Issue No.4, appears to have been influenced by the fact that plea of acknowledgement raised by the plaintiff-Bank in the plaint, had not been so reflected in the promissory note dated 1-1-1987. Discussion made by learned District Judge, while dealing with this Issue, is wholly irrelevant because learned District Judge, while dealing with this Issue, appears to have lost track of the Issue. Rather than giving his reasons regarding execution of confirmation receipts dated 31st December 1986 and 31st March 1992, learned District Judge has addressed himself only on the promissory note dated 1-1-1987 to find out as to whether or not any acknowledgement was recorded in the promissory note. Learned District Judge has, thus, missed the direction in which the Issue was required to be addressed. Confirmation receipts dated 31st December 1986 and 31st March 1992 are on records. On the back of these receipts, the defendant, Jaswant Singh, has recorded as follows: Signature admitted, contants denied.� 8. Admission by the defendant of his signatures on these two receipts has gone unnoticed by learned District Judge. Learned District Judge has further omitted to notice similar endorsement on the back of the promissory note dated 1-1-1987. 9. Plaintiff-appellant has produced evidence proving the execution of these documents. Shri Rattan Lal Koul, Manager of the Bank, is categoric in proving these documents, which stand exhibited. Finding of the learned District Judge that there is no evidence to prove these documents is, thus, against evidence. Learned District Judge, it appears, has not noticed Chapter XIII of Negotiable Instruments Act 1881, which prescribes Special Rules Of Evidence. Shri Rattan Lal Koul, Manager of the Bank, is categoric in proving these documents, which stand exhibited. Finding of the learned District Judge that there is no evidence to prove these documents is, thus, against evidence. Learned District Judge, it appears, has not noticed Chapter XIII of Negotiable Instruments Act 1881, which prescribes Special Rules Of Evidence. Perusal of Section 118 of the Negotiable Instruments Act may thus be advantageous: Section 118 Presumptions as to negotiable instruments. ---Until the contrary is proved, the following presumptions shall be made: (a) of consideration: that every negotiable instrument was made or drawn for consideration, and that every such instrument when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration; (b) as to date: that every negotiable instrument bearing a date was made or drawn on such date; (c) as to time of acceptance: that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity; (d) as to time of transfer: that every transfer of negotiable instrument was made before its maturity; (e) as to order of indorsement: that the indorsements appearing upon a negotiable instrument were made in the order in which they appear thereon; (f) as to stamp: that a lost promissory note, bill of exchange or cheque was duly stamped; (g) that holder is a holder in due course: that the holder of a negotiable instrument is a holder in due course; 10. Perusal of Section 118 leaves no manner of doubt that until the contrary is proved, presumption of consideration, date, time of acceptance, has to be drawn against a person, who is alleged to have executed a promissory note. 11. Admission of his signatures by the defendant on the documents including receipts of endorsement, coupled with the presumption available under Section 118 of the Negotiable Instruments Act, 1881, leaves no other course open for me except to hold that the execution of the documents relied upon by the plaintiff-appellant stood proved, because no evidence has been led by the defendants to either rebut the presumption or disprove the facts proved by the plaintiff-Bank through its unimpeachable evidence. 12. Plea of learned counsel for the respondents that acknowledgement has not been executed within the period of limitation, is against facts. 12. Plea of learned counsel for the respondents that acknowledgement has not been executed within the period of limitation, is against facts. Both the acknowledgement signed by the defendants, have been so executed within the expiry period of limitation of six years. Plea raised by Shri Kalgotra is, therefore, rejected. 13. Apart from admission and presumption, the appellant/plaintiff has proved the execution of documents by producing evidence. At this stage, it would be fruitful to refer to the finding of learned District Judge on Issue No.5, whereby he has held the Bank entitled to recover the suit amount from the defendants. Finding of learned District Judge on Issue No.4, thus, even otherwise, cannot be upheld. 14. Finding of learned District Judge on Issue No.4 is, thus, reversed and Issue No.4 decided in favour of the plaintiff-Bank and against the defendants. 15. Finding of learned District Judge on Issue No.1, too, is unsustainable because, while delivering finding on Issue No.1, learned District Judge has sought support from the finding returned by him on Issue No.4, which finding has been upset by me. Learned District Judge has held that the acknowledgement had not been certified within the prescribed period of limitation, which finding of learned District Judge is based on the non-proof of receipts of acknowledgement. This finding of learned District Judge is, thus, upset because of my finding on Issue No.4 holding that acknowledgements were duly proved by the plaintiff-Bank. 16. Finding of learned District Judge on Issue No.1 is, thus, upset and Issue No.1 decided in favour of the plaintiff-Bank and against the defendants. 17. In view of the aforementioned discussion, this appeal succeeds and is accordingly allowed. 18. The suit of the plaintiff-Bank is decreed with costs. The judgment and decree of learned District Judge is set aside. 19. The appellant shall be entitled to costs of this appeal, which is assessed at Rs. 2,000/- (Rupees two thousand only). Registry to draw decree accordingly.