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2012 DIGILAW 285 (PNJ)

Sukhdev Singh v. Angrej Singh

2012-02-17

L.N.MITTAL

body2012
L.N. Mittal, J. (Oral) : Defendant Sukhdev Singh who was successful in the trial court but has been unsuccessful in the lower appellate court has filed the instant second appeal. 2. Plaintiff Angrej Singh filed suit against defendant-appellant for recovery of Rs 4,40,000/- alleging that defendant on 31.3.2005 borrowed Rs 3,22,000/- from the plaintiff for payment to Commission Agent M/s Sukhbir Singh and brothers, Muktsar and promised to repay the amount within 3/4 months. However, when the defendant did not repay the amount, he executed pronote and receipt dated 18.8.2005 to repay the amount along with interest @ 18% per annum. Defendant, however, failed to repay the amount. Accordingly, plaintiff sought recovery of Rs 3,22,000/- as principal amount and Rs 1,18,000/- as interest till filing of suit. 3. The defendant broadly denied the plaintiff’s averments. The defendant alleged that impugned pronote-cum-receipt is forged and fabricated document. It has been fabricated by plaintiff in connivance with the aforesaid Commission Agent. The defendant used to sell his agricultural produce through the said Commission Agent which used to take blank signed pronote from the defendant as security. Dispute arose between the defendant and the said Commission Agent. The dispute was settled and defendant cleared all the dues of the Commission Agent. Plaintiff is relative of defendant. The plaintiff assured that the blank signed pronote would be taken later on from the Commission Agent. However, the plaintiff after obtaining the said blank signed pronote from the Commission Agent fabricated the impugned pronote and receipt. The defendant never borrowed any amount from the plaintiff. Various other pleas were also raised. 4. Learned Additional Civil Judge (Senior Division), Sri Muktsar Sahib vide judgment and decree dated 21.12.2010 dismissed the plaintiff’s suit. However, first appeal preferred by plaintiff has been allowed by learned District Judge, Sri Muktsar Sahib vide judgment and decree dated 16.11.2011 and thereby plaintiff’s suit has been decreed for recovery of principal amount of Rs 3,22,000/- along with interest @ 9% per annum till filing of suit and @ 6% per annum from the date of filing of suit till recovery. Feeling aggrieved, defendant has filed the instant second appeal. I have heard learned counsel for the appellant at considerable length and perused the case file. 5. Feeling aggrieved, defendant has filed the instant second appeal. I have heard learned counsel for the appellant at considerable length and perused the case file. 5. Plaintiff himself appeared in the witness box as PW1 and examined both witnesses of the impugned pronote-cum-receipt Kahan Singh PW3 and Faqir Chand PW4 and also scribe thereof Gurmit Singh PW2. All of them have broadly stated according to the plaintiff’s version. In addition to it, Bal Mukand PW5 Accountant of the aforesaid Commission Agent stated with reference to the account books of the firm that the defendant had paid Rs 3,22,000/- to the aforesaid Commission Agent on 31.3.2005. On the other hand, the defendant himself appeared as DW1 and broadly stated according to his version. Defendant also examined DW2 Pritam Singh and DW3 Santa Singh. They stated that they had paid Rs 2 lacs and Rs 1,30,000/- respectively to the defendant for payment to the aforesaid Commission Agent. 6. Counsel for the appellant vehemently contended that interest amount for the period from 31.3.2005 the date of advancement of loan till 18.8.2005, the date of execution of pronote-cum-receipt was not included in the impugned pronote-cum-receipt. It was also contended that the defendant had taken the amount from Pritam Singh and Santa Singh for payment to the Commission Agent. It was also argued that presumption under section 118 of the Negotiable Instruments Act, 1881 (in short, the Act) is not the absolute presumption and once the defendant by direct or ircumstantial evidence or by use of other presumption of law or fact shows that the pronote is not supported by consideration, the burden shifts to the plaintiff and legal burden of the plaintiff is revived and presumption under section 118 of the Act disappears at this stage and no longer subsists. Reliance in support of this contention has been placed on two judgments of Hon’ble Supreme Court in M.S.Narayana Menon @ Mani vs. State of Kerala, 2006-MADLJ-2-1266; Bharat Barrel and Drum Manufacture company Limited vs. Amin Chand Payrelal, 1999-ALLMR-2-269 and Full Bench judgment of Andhra Pradesh High Court in G.Vasu Vs Syed Yaseen Sifuddin Quadri, 1987-ALT-1-1. It was also contended that plaintiff’s witnesses admitted that the amount was not paid in their presence by the plaintiff to the defendant. 7. I have carefully considered the aforesaid contentions. It was also contended that plaintiff’s witnesses admitted that the amount was not paid in their presence by the plaintiff to the defendant. 7. I have carefully considered the aforesaid contentions. The plaintiff besides himself stepping into witness box has examined both the witnesses of impugned pronote-cum-receipt as well as scribe thereof. They have supported the plaintiff’s case. The defendant has admitted his signatures on the impugned pronote-cum-receipt. The defendant alleged that the aforesaid Commission Agent had taken his signatures on blank pronote-cum-receipt as security and the same has been misused. However, this plea of the defendant is difficulty to accept. If the defendant repaid the huge amount of Rs 3,22,000/- to the Commission Agent on 31.3.2005, the defendant would not have left his blank signed pronote with the Commission Agent. At the time of paying the said huge amount, the defendant would have taken back the blank signed pronote from the Commission Agent. On the contrary, payment of the said amount by defendant to the Commission Agent stands admitted by the defendant in view of his own evidence. The said payment corroborates the plaintiff’s version that the plaintiff had paid the said amount to the defendant for payment to the Commission Agent. 8. Defendant’s evidence that he had taken Rs 2 lacs from Pritam Singh DW2 and Rs 1,30,000/- from Santa Singh DW3 is completely beyond pleadings and is also not supported by any document and is, therefore, not reliable. In the written statement, it was pleaded that the defendant cleared the account of the Commission Agent from his own family savings and adjustment. The defendant did not even remotely allege that he had borrowed any amount from any body else much less from Pritam Singh and Santa Singh. On the contrary, as per their statements, they had paid total amount of Rs 3,30,000/-, out of which the defendant paid Rs 3,22,000/- only to the Commission Agent. Thus, it is apparent that the defendant had no family savings or adjustment to pay the amount to the Commission Agent and rather he allegedly over-borrowed from Pritam Singh and Santa Singh. This evidence of defendant is contrary to his stand in his written statement. Statements of defendant and his witnesses are also not supported by any document. This version came for the first time when thed efendant led his evidence and obviously the plaintiff was taken by surprise. 9. This evidence of defendant is contrary to his stand in his written statement. Statements of defendant and his witnesses are also not supported by any document. This version came for the first time when thed efendant led his evidence and obviously the plaintiff was taken by surprise. 9. The aforesaid version of the defendant is thus completely unworthy of credence. 10. As regards inclusion of interest amount in the pronote, it is plaintiff’s case that no interest was agreed when the amount was initially advanced to defendant on 31.3.2005 because it was promised to be returned within 3/4 months. For the same reason, no pronote was got executed at that time. However, when the defendant failed to repay the amount, then pronote cum receipt was got executed on 18.8.2005 along with stipulation of payment of interest. Thus, no interest was payable for the period prior to execution of the pronote and therefore, no interest amount could be included in the pronote. 11. Statements of plaintiff’s witnesses that consideration for the pronote was not paid in their presence is consistent with the plaintiff’s version because according to the plaintiff’s version, the amount was paid by him to the defendant on 31.3.2005 whereas the pronote-cum-receipt was executed on 18.8.2005. 12. Presumption under section 118 of the Act has also not been rebutted by the defendant in this case. If the defendant had shown that the pronote is not supported by consideration, then of course presumption under section 118 of the Act would have disappeared. However, in the instant case, the defendant has failed to demonstrate that the impugned pronote is not supported by consideration. As noticed hereinbefore, defendant’s evidence is not credible whereas plaintiff’s version and evidence is consistent and credible. 13. For the reasons aforesaid, I find no merit in the instant second appeal. Suit of the plaintiff-respondent has been rightly decreed by the lower appellate court. Finding of the lower appellate court in favour of plaintiff cannot be said to be perverse or illegal or based on misreading or misappreciation of evidence so as to warrant interference in exercise of second appellate jurisdiction. No question of law much less substantial question of law arises for adjudication in the instant second appeal. The appeal is accordingly dismissed in limine.