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2009 DIGILAW 1179 (PNJ)

Balwant Singh And Others v. Ashok Kumar Goel

2009-07-17

HEMANT GUPTA

body2009
Judgment Hemant Gupta, J. 1. The legal heirs of the deceased-defendant Darbara Singh are in second appeal aggrieved against the judgment and decree passed by the learned first Appellate Court decreeing the suit for Rs.27,000/- on the basis of pronote dated 13.9.1995 and also granting interest @ 1% per month on the decretal amount from the date of filing of the suit till the date of realisation. 2. The plaintiff filed a suit for recovery of Rs.27,000/-, which includes Rs.20,000/- as principal amount on the basis of pronote dated 13.9.1995 and Rs.7,000/- as interest. Defendant-Darbara Singh filed his written statement and denied execution of the pronote and also of the passing of consideration. To prove execution of the pronote, the plaintiff himself appeared as PW1 and examined Ashok Kumar, an attesting witness, as PW2. The plaintiff also produced pronote and receipt Exhibits P.1 and P.2. On the other hand, one of the sons of deceased-defendant Dev Raj appeared as DW1. 3. The learned trial Court dismissed the suit, inter-alia, for the reason that the plaintiff has failed to prove the execution of the pronote and that it was the defendant, who had approached the plaintiff for the purpose of loan. The learned trial Court also recorded a finding that the scribe of the pronote i.e., Mam Chand has not been examined and the plaintiff has failed to aver as to who scribed and witnessed the pronote. It was also found that after the death of Darbara Singh on 5.5.2001 heavy onus was on the plaintiff to prove the execution of the pronote. It was also found that the plaintiff has failed to explain that the pronote was not scribed by any deed writer(i), who are easily available at the premises of District Courts, Ambala situated at about 20 feets from the house of the plaintiff. 4. The learned first Appellate Court considered the entire evidence and reversed the findings recorded by the learned trial Court. It found that Mam Chand scribe, has, in fact, died. It noticed that earlie- Mam Chand appeared in ex-parte evidence, but after the ex-parte proceedings were set aside, Mam Chand was not available for examination. It also found that the testimony of PW-2 Ashok Kumar, one of the attesting witnesses is sufficient to prove the execution of the pronote and the receipt. It noticed that earlie- Mam Chand appeared in ex-parte evidence, but after the ex-parte proceedings were set aside, Mam Chand was not available for examination. It also found that the testimony of PW-2 Ashok Kumar, one of the attesting witnesses is sufficient to prove the execution of the pronote and the receipt. He has deposed that an amount of Rs.20,000/- was advanced to Darbara Singh, in his presence. The Court also recorded the finding that there is no cutting and overwriting on these documents and that the pronote and receipt appear to have been filled up at one time only. The pronote and receipt appear to bear the thumb impression of defendant and that such thumb impression is legible and clear. It also considered the statement of DW1 Dev Raj and found that he is neither a witness of the pronote nor the receipt and that such evidence is not sufficient to rebut the presumption of consideration attached to the execution of the pronote. Aggrieved against the said judgment and decree, the defendant is in the present Regular Second Appeal before this Court. 5. Learned counsel for the appellants has produced a photo copy of the pronote and receipt during the course of hearing. A perusal of the pronote and receipt shows that the thumb impressions of Darbara Singh are partly appearing on the revenue stamps as well. The revenue stamps seem to have been cancelled by single stroke on two rows on pronote. Therefore, the argument raised by the learned counsel for the appellant that old and used stamp papers have been used for the execution of the pronote is absolutely meaningless. Still further, the argument that Ashok Kumar is witness to a receipt and not to the pronote is inconsequential. It is true that Ashok Kumar is a witness of a receipt, but the law does not contemplate that the pronote is a document which compulsorily requires attestation. Ashok Kumar has appeared as a witness and deposed that Darbara Singh thumb marked the pronote and receipt in his presence. The presence of Ashok Kumar at the time of execution of the pronote is proved in view of the fact that he is a signatory to the receipt. In view of the said fact, the execution of the pronote and receipt stands proved. The presence of Ashok Kumar at the time of execution of the pronote is proved in view of the fact that he is a signatory to the receipt. In view of the said fact, the execution of the pronote and receipt stands proved. In fact, the entire arguments raised by the learned counsel for the appellant are in the realm of re-appreciation of evidence. The reasoning given by the learned trial Court is not legally sustainable, which have been rightly considered by the learned first Appellate Court and reversed. It could not be pointed out that any evidence has been misread and not taken into consideration, while returning a finding of fact by the learned first Appellate Court. 6. Learned counsel for the appellants has placed reliance upon Sri Khetramohan Ray v. Udayanarayan Panda and another, A.I.R. 1991 (Orissa) 25; P. Venkatamma and another v. Dontham Sulochana, 2006(1) R.C.R. (Civil) 598 and Balbir Singh v. Harbans Singh, (2009-2) 154 P.L.R. 424, to contend that the presumption of consideration has to be drawn in terms of Section 118 of the Negotiable Instruments Act, 1881 . There is no dispute with the proposition laid down in the aforesaid judgments. The law is clear that once the plaintiff is able to prove the execution of the pronote, it is for consideration. It is the executant of the pronote, who has to rebut the presumption available under Section 118 of the aforesaid Act. 7. Learned counsel for the appellants further argued that the interest awarded is excessive. 8. I find that the learned first Appellate Court has awarded pendente lite and further interest on the decretal amount i.e., Rs.27,000/- which means that the plaintiff has been granted interest on the amount of Rs.7,000/- as well, which is not permissible. 9. Learned counsel for the respondent, who is present in Court, has no objection if the decree regarding the grant of interest on the decretal amount is modified so as to read as interest on the amount of pronote only. 10. With the consent of the counsel for the respondent, the decree passed by the learned first Appellate Court is modified so as to read that the suit is decreed for Rs.27,000/-. However, the interest @ 1% per month shall be payable on the amount of Rs.20,000/- from the date of filing of the suit till its realization. 10. With the consent of the counsel for the respondent, the decree passed by the learned first Appellate Court is modified so as to read that the suit is decreed for Rs.27,000/-. However, the interest @ 1% per month shall be payable on the amount of Rs.20,000/- from the date of filing of the suit till its realization. With the said modification, the appeal is dismissed as no substantial question of law arises for consideration. Appeal dismissed