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2006 DIGILAW 1759 (RAJ)

Beg Raj Sharma v. Om Prakash Kaushik

2006-05-19

K.C.SHARMA

body2006
Judgment K.C. Sharma, J.-This civil first appeal under Section 96 CPC arises out of the Judgment and decree dated 05.08.1989 passed by the learned Additional District Judge, Kishangarh-bas thereby dismissing the plaintiffs suit for recovery of Rs. 16,775-. 2. The plaintiff s case as set out in the plaint was that he advanced loan of a sum of Rs. 11,000/-alongwith interest @ 5% p.m. to the defendant so as to enable him to purchase some land and the defendant in turn, executed a pro-note in favour of plaintiff . In addition to pro-note, the defendant also issued a receipt. Since the defendant failed to re-pay the principal sum and interest within time as assured by him, the plaintiff got served a legal notice. Despite service of notice, the defendant did not pay the principal amount and the interest. It was with these allegations that the plaintiff instituted a suit for recovery of Rs. 11,000/-as principal amount and Rs. 5775.00 as interest thereon, totaling to Rs. 16775/-. 3. The defendant contested the suit by filing written statement and denied the allegations. In the written statement the defendant pleaded that he did not borrow cash of Rs. 11000/-as alleged by the plaintiff . According to the defendant, the plaintiff is the son-in-law of his uncle and he is residing alongwith his in-laws. The defendant was interested in purchase of land of his another uncle Deeg Ram. Likewise, plaintiff was also interested in purchase of some of the land. The land which the defendant intended to purchase was already in his physical possession. However, at the relevant time he was not having sufficient fund to purchase the land. In these circumstances it was agreed upon between the parties to get an agreement executed and registered according to which it was agreed that defendant would pay Rs. 11000/-to his uncle Deeg Ram as against the land and that plaintiff would be orally responsible for payment of the aforesaid sum. Accordingly, the plaintiff in his capacity as a surety obtained the signature of the defendant on a blank pro-note with assurance that this pro-note would be destroyed after he pays Rs. 11000/-to Deeg Ram. 11000/-to his uncle Deeg Ram as against the land and that plaintiff would be orally responsible for payment of the aforesaid sum. Accordingly, the plaintiff in his capacity as a surety obtained the signature of the defendant on a blank pro-note with assurance that this pro-note would be destroyed after he pays Rs. 11000/-to Deeg Ram. On the basis of pleadings of the parties, the learned trial Court framed as many as 4 issues and at the conclusion of trial and on hearing the parties, at the learned trial Court dismissed the plaintiff s suit vide its impugned Judgment and decree. Hence this appeal by the plaintiff . 4. I have heard learned Counsel for the appellant and gone through the impugned Judgment and the evidence on record. 5. The learned trial Court on consideration of evidence adduced on behalf of the parties has dismissed the suit of the plaintiff on the ground that plaintiff has not been able to prove that defendant had executed the pro-note for some consideration. In fact it was executed by way of security. 6. According to the defendant, he extended security by putting his signature on the pro-note, Exhibit 1 and that he had paid Rs. 11,000/-some time in April 1985 itself . The defendant (DW1) in his statement has stated that since Deeg Ram was trusting upon the plaintiff and therefore, he executed pro-note of Rs. 11,000/-in question in favour of plaintiff . He had returned the aforesaid sum in the month of April, 1985. DW2 Phool Chand is a witness to the receipt issued by the defendant. This witness has specifically stated that plaintiff did not give any cash to the defendant and clarified further that defendant purchased the land of Deeg Ram and since amount was found short, he executed a pro-note and receipt for the amount found short. DW3 Om Prakash has also supported the statement of defendant that he had returned Rs. 11000/-to the plaintiff in the month of April. Similarly, DW4 Ajeet has also stated that defendant had returned the aforesaid sum to the plaintiff . Yet another witness DW5 Hem Chand has also supported the version of the defendant. According to this witness, he himself , defendant Om Prakash and the plaintiff had purchased the land of Deeg Ram. At the time of purchase the defendant could not pay Rs. 11,000/-which remained due as against sale consideration. Yet another witness DW5 Hem Chand has also supported the version of the defendant. According to this witness, he himself , defendant Om Prakash and the plaintiff had purchased the land of Deeg Ram. At the time of purchase the defendant could not pay Rs. 11,000/-which remained due as against sale consideration. For the amount which remined due, the plaintiff executed a pro-note in favour of Deeg Ram and the defendant, in turn, executed a pro-note in favour of the plaintiff . Even the plaintiff s witness Gauri Shanker (PW1) has categorically stated that no cash was paid to defendant in his presence. PW4 Kashi Ram scribe of pro-note Exhibit 1 and receipt Exhibit 2 has also stated that no cash was paid in his presence. In cross-examination, this witness has admitted that since defendant was unable to pay Rs. 11,000/-as against sale consideration of Exhibit A1 executed by Deeg Ram in favour defendant, therefore, the defendant executed a pro-note in favour of plaintiff and the plaintiff , in turn, executed a pro-note in favour of Deeg Ram. The documents, Exhibit 1 and Exhibit 2 were executed in favour of plaintiff by the defendant simply for the reason that Deeg Ram was not trusting upon the defendant. The witnesses examined by the plaintiff has not supported the plaintiff s case that he had given in cash a sum of Rs. 11000/-to the defendant in the presence of Phool Chand and Gauri Shanker. Evidently thus, the documents Exhibits 1 and 2 were not executed for any cash consideration. 7. From what has been discussed above, it must be concluded that plaintiff has not been able to prove that consideration for execution of the pro-note Exhibit 1 and receipt Exhibit-2 was cash. In fact, the promissory note was executed by way of security and further that the defendant had already paid a sum of Rs. 11,000/-in the month of April, 1985 itself to the plaintiff and the plaintiff , in turn, gave the said sum to Deeg Ram. In my considered view, the learned trial Court thas rightly held that since defendant had executed the pro-note by way of security, the plaintiff was not entitled to get a decree. 11,000/-in the month of April, 1985 itself to the plaintiff and the plaintiff , in turn, gave the said sum to Deeg Ram. In my considered view, the learned trial Court thas rightly held that since defendant had executed the pro-note by way of security, the plaintiff was not entitled to get a decree. Had the plaintiff come forward with the case hat promissory note was executed by way of security, then also he would not be able to get a decree on the basis of pro-note without proving further that defendant committed breach of the agreement. In the circumstances, therefore, I am of the considered view that the learned trial Court has appreciated the evidence in true perspective and has rightly dismissed the plaintiff s suit. 8. Resultantly, this appeal being devoid of merit has no force and is hereby dismissed, with no order as to costs.