JUDGMENT : Goutam Bhaduri, J. Heard. 1. The present appeal is against the judgment and decree dated 25/01/2018 passed by the 5th Additional District Judge, Raipur in Civil Suit No.24B/13, whereby the suit filed by the respondent was decreed for Rs.10 Lakhs along with interest @ 6% p.a. from 08/03/2013. 2. The defendant being aggrieved by such judgment and decree has filed this appeal. 3. The plaintiff Smt. Purnima filed a suit on the ground that a joint account was opened by her mother Indurani Dhadda & father B.L. Dhadda on 04/02/2011 at Bank of Baroda, Raipur. The account was to be operated by either of the account holder. Plaintiff further stated that the defendant firm through his partner Suresh Atlani requested for a loan from plaintiff of Rs.10 Lakh on 17/02/2011. It was further stated that defendant agreed to pay an interest @ 18% p.a. Accordingly, an amount of Rs.10 Lakhs by way of loan was advanced to Suresh Atlani and in the said cheque the joint account holder Smt. Indurani Dhadda had signed it and after receipt of the money a promissory note of 17/02/2011 was executed by Suresh Atlani in favour of Smt. Indurani Dhadda. 4. The plaintiff contended that on two occasions i.e. on 23-2-2011 and 23-5-2011 an amount of Rs.27,000/-, respectively, was paid by way of interest but subsequently no repayment was made. Then plaintiff made a demand of Rs.10 Lakhs to liquidate the loan, wherein the defendant had issued a cheque of Rs.10 Lakhs on 18/06/2012 in name of her mother. The said cheque was deposited in the joint account of the plaintiff, her mother and father but it got dishonoured. Thereafter, legal notice was served to the defendant on 04/07/2012 despite that no payment was made, therefore, eventually, the suit was filed. 5. Per contra, the defendant denied to have received the loan and consequently denied to have executed the promissory note. The averments and allegation also of payment of Rs.27000/- at two occasions by way of interest was also denied. In continuation, the service of notice and the reply too was also denied. 6. On the basis of the pleading, issues were framed and plaintiff examined herself and the defendant examined witness Suresh Atlani. The trial Court came to a finding of transaction took place in between the parties and decreed the suit in favour of the plaintiff. Hence this appeal. 7. 6. On the basis of the pleading, issues were framed and plaintiff examined herself and the defendant examined witness Suresh Atlani. The trial Court came to a finding of transaction took place in between the parties and decreed the suit in favour of the plaintiff. Hence this appeal. 7. Learned counsel for the appellants would submit that the institution of the suit by Smt. Purnima Jain would be bad as neither any transaction took place in between Smt. Purnima Jain and the appellant nor any promissory note was executed in her favour. He would further submit that the promissory note (Ex. P/8) would show that it was in name of Smt. Indurani Dhadda and there being no endorsement in the promissory note, plaintiff cannot be a holder in due course. He would further submit that learned trial Court has completely misdirected itself to draw a presumption under Section 118(g) of the Negotiable Instruments Act, 1881 (hereinafter referred to as “NI Act”) which is rebuttable in nature and the very document on which the suit is based i.e. promissory note and subsequent cheque which was issued in name of the mother of the plaintiff would show that there was no privity of transaction in between plaintiff and defendant. He placed his reliance in the case of Pradeep Kumar and Another v Postmaster General and Others reported in (2022) 6 SCC 351 to submit that holder in due course cannot be presumed and would submit that in order to be a holder in due course either it should be for consideration and the exchange of instrument should be before the amount became payable. He would further submit that in this case, the amount became payable on 18/06/2021 when the cheque issued in favour of the mother of the plaintiff was dishonoured. Therefore, the plaintiff cannot be a holder in due course and the case is liable to be dismissed. 8. Per contra, learned counsel for the respondent would submit that the ground which is raised before this appellate Court was neither pleaded nor agitated before the trial Court. He would further submit that the respondent cannot be taken by surprise to allow the appellant to agitate those grounds when they were not pleaded and when the issues were not framed. Per contra, learned counsel for the respondent would submit that the ground which is raised before this appellate Court was neither pleaded nor agitated before the trial Court. He would further submit that the respondent cannot be taken by surprise to allow the appellant to agitate those grounds when they were not pleaded and when the issues were not framed. He would further submit that the case of the plaintiff was that from the joint account the amount was given and the case was not based on promissory note and it was only an additional feature for security. Therefore, the decree passed by the Court below is well merited which do not call for any interference. 9. We have heard learned counsel for the parties and perused the record. 10. Perusal of the record would show that the suit was filed by Smt. Purnima. According to the pleading the loan was given from the joint account and thereafter a promissory note of Rs.10 Lakhs was executed on 17/02/2011 in favour of the one of the joint account holder Smt. Indurani Dhadda. The submission of the respondent, therefore, that the promissory note was ancillary security of loan is against the pleading made before the trial Court. Be that as it may, we went through the pleading, evidence and the respective sections of NI Act. 11. Admittedly, as per documents which are filed, Ex. P/8 is a promissory note of Rs.10 Lakhs issued in favour of Smt. Indurani Dhadda. The defendants have completely disowned those facts that they have received any amount but no evidence has been placed to support the same. On the contrary, the plaintiff stated that Rs.10 Lakhs of loan was advanced from a joint account and the accounts were in name of plaintiff i.e. Smt. Purnima along with her mother Indurani Dhadda and father B.L. Dhadda. According to the plaintiff, the account was a joint account and was operated by either of the account holder. The statement of the defendant would show in cross-examination, it was admitted that he had received a cheque of Rs.10 Lakhs as he was in need of money for his business. He further admitted that after receipt of the cheque he executed a promissory note of Rs.10.00 lacs on 17-2-2011. 12. The statement of the defendant would show in cross-examination, it was admitted that he had received a cheque of Rs.10 Lakhs as he was in need of money for his business. He further admitted that after receipt of the cheque he executed a promissory note of Rs.10.00 lacs on 17-2-2011. 12. The plaintiff stated that after the advance of cheque, by way of repayment on two occasions i.e. 23-2-2011 and 23-5-2011 a cheque was received by her i.e. Smt. Purnima Jain and total amount of Rs.54,000/- was deposited in the joint account. The defendant at para 11 of the statement says that he had paid amount of interest to Indurani by way of a cheque. According to the plaintiff, thereafter, she demanded the money of Rs.10.00 lacs and having made the demand, a cheque of Rs.10.00 lacs was given to her on 18-6-2012, which was deposited in their bank, which got dishonoured. Thereafter, a notice (Ex.P/5) dated 16-7-2012 was served. Perusal of notice Ex.P/5 would show that the notice was served on behalf of Indurani Dhadda, B.L. Dhadda and Purnima Jain in whose favour the promissory note was executed. The said cheque having been deposited in the account got dishonoured, which is also proved by PW-2 Tusharkant Sahu, Senior Manager of the Bank, for want of sufficient fund. According to the statement of PW-2 Tusharkant Sahu it would show that the cheque of Rs.10.00 lacs was deposited in the joint account of Indurani Dhadda, B.L. Dhadda and Purnima Jain. The facts, therefore, show that initially the plaintiff who was holding the joint account with Indurani Dhadda and B.L. Dhadda, an amount of Rs.10.00 lacs was given as a loan for which on two occasions interest was deposited and subsequently after demand the cheque was given which having deposited in the joint account was dishonoured. 13. Admittedly, the suit is filed by Purnima Jain. The question looms large as to whether she would be holder in due course as per Section 9 of the NI Act and whether the presumption of Section 118(g) can be drawn that by mere holder of a negotiable instrument she would be holder in due course. In order to explore this, Sections 9 and 118 (g) of the NI Act would be relevant, which are quoted below for ready reference : 9. In order to explore this, Sections 9 and 118 (g) of the NI Act would be relevant, which are quoted below for ready reference : 9. Holder in due course”.—“Holder in due course” means any person who for consideration became the possessor of a promissory note, bill of exchange or cheque if payable to bearer, or the payee or indorsee thereof, if payable to order, before the amount mentioned in it became payable, and without having sufficient cause to believe that any defect existed in the title of the person from whom he derived his title. 118. Presumptions as to negotiable instruments. —Until the contrary is proved, the following presumptions shall be made:— xxx xxx xxx (g) that holder is a holder in due course —that the holder of a negotiable instrument is a holder in due course: First part of Section 9 of the NI Act purports that ‘holder in due course” means any person who for consideration became the possessor of a promissory note. In the instant case, it is established that the amount was advanced from the joint account. Subsequent thereto the Section purport that holder in due course would be the person who is in hold of the negotiable instrument before the amount mentioned in it became payable. 14. PW-1 Smt. Purnima Jain in her evidence categorically stated that after the advance made from the joint account a promissory note was issued in favour of the mother. The amount having been debited or withdrawn from the joint account it cannot be stated and presumed that she being the joint holder of the account did not have any right over such amount. Apart from that the evidence of PW-1 Purnima Jain would show that repayment of Rs.27,000/- by way of interest was made to her. This also draws inference that before the demand was made she came in possession of the promissory note and further the evidence would show that she has stated that she made a demand to Suresh Atlani for repayment. Thereafter, the cheque of Rs.10.00 lacs was issued consequently she became the holder of negotiable instrument i.e. promissory note before the amount mentioned in it became payable. 15. Thereafter, the cheque of Rs.10.00 lacs was issued consequently she became the holder of negotiable instrument i.e. promissory note before the amount mentioned in it became payable. 15. Section 118 (g) of the NI Act which covers the special rule of evidence and Section 118 (g) purport that it would be presumed that the holder of a negotiable instrument is a holder in due course. 16. The Supreme Court in the matter of Pradeep Kumar and Another v Postmaster General and Others reported in (2022) 6 SCC 351 while interpreting the ‘holder in due course’ has held that as per Section 9 ‘holder in due course’ is a person who for consideration has become a possessor of the instrument if payable to a bearer or if payable to the order to the person mentioned, i.e. the payee, or becomes the indorsee thereof. It further explained that holder in due course means the original holder or a transferee in good faith, who has acquired possession of the negotiable instrument for consideration without having sufficient cause to believe that there was any defect in the title of the person and the negotiation in case of transfer should be before the amount mentioned in the negotiable instrument becomes payable. 17. As has been held that a negotiation of the instrument had already taken place, as the evidence of plaintiff remains unrebutted that amount of Rs.27,000/- twice was paid to her before it became due and after the payment the cheque was issued in the name of her mother which got dishonoured. The evidence suggest that the amount was parted from a joint account of plaintiff, her mother Indurani and father B.L. Dhadda would go to show that she was holder in due course before the amount became payable. Therefore, the presumption of Section 118 (g) of the NI Act would follow and the custody of cheque by plaintiff was without any fraud or any offence, Section 47 of the NI Act also support the fact that the negotiable instrument can be negotiated through delivery and no exception has been brought fore to hold it otherwise. 18. In a result, we are of the view that the impugned judgment and decree passed by the Court below is well merited warranting no interference of this Court. 19. Accordingly, the present appeal is dismissed, leaving the parties to bear their own cost(s). 20. 18. In a result, we are of the view that the impugned judgment and decree passed by the Court below is well merited warranting no interference of this Court. 19. Accordingly, the present appeal is dismissed, leaving the parties to bear their own cost(s). 20. A decree be drawn accordingly.