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2018 DIGILAW 936 (PNJ)

AMARJIT SINGH v. JASPAL SINGH

2018-02-21

ANIL KSHETARPAL

body2018
JUDGMENT : ANIL KSHETARPAL, J. C.M. No. 17759-C-2016 Prayer in this application is for amending the grounds of appeal. In view of the assertion made in the application, which is supported by an affidavit of the counsel, the application is allowed, amended grounds of appeal are taken on record. MAIN Plaintiff-appellant is in regular second appeal against the judgment passed by the learned first appellate court reversing the judgment passed by the learned trial court in a suit for recovery of Rs. 1,35,000/- consisting of Rs. 1,00,000/- as principal and Rs. 35,000/- as interest from 02.07.1998 to 01.06.2001. 2. Plaintiff filed a suit claiming that the original defendant who later died during the pendency of the litigation, had taken a loan of Rs. 2,00,000/- and executed a pronote and receipt dated 18.11.1996. It is further the case of the plaintiff that out of Rs. 2,00,000/-, Rs. 1,00,000/- was re-paid vide cheque dated 02.07.1998 and for remaining Rs. 1,00,000/-, a new pronote was executed. 3. On the other hand, defendant admitted the execution of the first pronote dated 18.11.1996 against the loan. However, defendant pleaded that the entire amount has been re-paid and hence new pronote is result of forgery. 4. In order to prove the execution of the second pronote, scribe Rajinder Kumar Kohar was examined. Plaintiff also appeared in the witness box to prove the case set up by him. 5. Learned trial court after appreciation of the evidence available on file, decreed the suit filed by the plaintiff for a sum of Rs. 1,35,000/- along with interest pendente lite @ 9% per annum and future interest @ 6% per annum. 6. First appeal preferred by the defendant-respondent, was allowed. Learned first appellate court has given three reasons for reversing the judgment of the learned trial Court:- (i) There was no occasion to execute the new pronote once previous pronote i.e. dated 18.11.1996 had already been executed; (ii) The execution of the second pronote is not proved therefore, the limitation would begin to run from pronote executed on 18.11.1996 and hence the suit filed by the plaintiff on 17.07.2001 is barred by limitation; (iii) No consideration is proved to have been paid on the day the new pronote was executed. 7. 7. In the considered opinion of this Court, question of law which needs determination is "whether the judgment of the first appellate court is result of misreading and non reading of evidence available on the file". 8. Learned first appellate court has reversed the findings of the learned trial court on the basis of assumptions. The first appellate court has not correctly appreciated the pleadings of the parties. It is undisputed that a loan of Rs. 2,00,000/- was taken by the defendant and a pronote and receipt were executed on 18.11.1996. Out of Rs. 2,00,000/-, Rs. 1,00,000/- was returned vide cheque dated 02.07.1998, although, it is the case of the defendant that the entire amount was re-paid. On the same day, a new pronote dated 02.07.1998 was executed. New pronote again bears thumb impressions of the defendant Sadha Singh on the pronote as well as the receipt. Sadha Singh has put his thumb mark on the revenue stamp pasted on the receipt. A careful reading of the pronote dated 02.07.1998 further establish that there is a reference to transactions dated 26.11.1999. Hence, the reason for execution of the new pronote stands established. 9. The next reason assigned by the first appellate court to accept the appeal and reverse the judgment of the trial court is that the suit is barred by limitation. 10. In the considered opinion of this Court, new pronote or second pronote dated 02.07.1998 is in continuation of previous pronote dated 18.11.1996. Once a partial payment was made and new pronote was executed for the remaining amount, the limitation cannot be counted from previous pronote dated 18.11.1996. 11. The next reason assigned by the learned first appellate court is that no consideration for execution of the next pronote has been proved. 12. It may be noticed that there was a earlier pronote dated 18.11.1996 for a sum of Rs. 2,00,000/- out of which Rs. 1,00,000/- was repaid on 02.07.1998 and a new pronote was executed on the same day i.e. on 02.07.1998 for the remaining balance amount. Of course the reference date is wrong because the first pronote is dated 18.11.1996. Whereas it has been referred as pronote dated 26.11.1998. 13. However, taking into consideration the totality of the facts available on the file, it cannot be said that the pronote was not executed for consideration. 14. Of course the reference date is wrong because the first pronote is dated 18.11.1996. Whereas it has been referred as pronote dated 26.11.1998. 13. However, taking into consideration the totality of the facts available on the file, it cannot be said that the pronote was not executed for consideration. 14. Still further, learned first appellate court has over-looked the provisions of Section 118 of the Negotiable Instrument Act. It provides for a statutory presumptions in favour of correctness of the negotiable instrument. The pronote and receipt are negotiable instruments. section 118 of the Negotiable Instruments Act is extracted as under:- 18. 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 a negotiable instrument was made before its maturity; (e) as to order of indorsements:- that the indorsements appearing upon a negotiable instrument were made in the order in which they appear then on; (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 : provided that, where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him. 15. It was for the defendant to rebut the aforesaid presumption. In the considered opinion of this Court, defendant-respondent has failed to rebut the presumption as available to the Negotiable Instrument. 16. In view of the discussion made herein-above, the question of law framed in the previous part of the judgment is answered in favour of the appellant. 15. It was for the defendant to rebut the aforesaid presumption. In the considered opinion of this Court, defendant-respondent has failed to rebut the presumption as available to the Negotiable Instrument. 16. In view of the discussion made herein-above, the question of law framed in the previous part of the judgment is answered in favour of the appellant. The judgment and decree passed by the learned first appellate court is set aside and that of the trial Court is restored. 17. The regular second appeal is allowed.