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2017 Supreme(Cal) 399
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
SHIVAKANT PRASAD, J.
Rajib Saha - Plaintiff
Versus
Monjur Alam Mallick - Defendant
EOS No. 8 of 2015 with CS No. 130 of 2008 (Original Side)
Decided On : 25-04-2017
For the Plaintiff:Chanchal Kumar Dutt, Sakya Sen, Rajarsi Dutt, Krishna Mallick, Sunil Gupta, Advocates.
For the Defendant:Swarnendu Ghosh, Debasish Chakraborty, Surya Maity, Amrita Maji, Anirban Chakraborty, Advocates.
The admissibility of a promissory note under Section 36 of the Indian Stamp Act and the burden of proof in establishing the terms of a contract.
Headnote:
FRAUD - LOAN AGREEMENT - INDIAN EVIDENCE ACT - INDIAN STAMP ACT - [FACT OF THE CASE] The plaintiff alleged that the defendant, based on representations and assurances, agreed to repay a loan of Rs. 29 lakhs but failed to do so. The defendant denied the agreement and alleged a criminal conspiracy. [FINDING OF THE COURT] The court found that the plaintiff proved the payment and utilization of the loan amount by the defendant and that the defendant promised to repay the amount. [ISSUES] The issues included the admissibility of the promissory note, the authenticity of signatures, and the defendant's liability to repay the loan. [RATIO DECIDENDI] The court held that the promissory note was admissible under Section 36 of the Indian Stamp Act and that the plaintiff proved the payment and the defendant's promise to repay. [FINAL DECISION] The plaintiff's suit was decreed, and the defendant's suit was dismissed.
1. C.S. 130 of 2008 and EOS 8 of 2015 have been tried together as the issues and the parties involved in both the suits are common. So, these two suits can be decided by a common judgment.
2. In CS 130 of 2008 the plaintiff has prayed for a decree for Rs. 39,44,000.00, interim interest and interest on judgment @ 15% per annum and other reliefs.
3. The plaintiff’s case, in brief, is that the plaintiff by virtue of their cordial relationship and relying upon representations and assurances given by the defendant and believing the same to be true and correct had agreed to lend a sum of Rs. 29 lakhs and accordingly disbursed the said amount to the defendant by three A/c. payee cheques being nos. 765916 dated March 14, 2005, 765918 dated March 21, 2005 and 765919 dated March 30, 2005, respectively drawn on the Standard Chartered Bank, Shyambazar Branch, in favour of the defendant.
4. The defendant executed a Promissory Note on 8th March, 2005 acknowledging receipt of a sum of Rs. 29 lakhs undertaking to repay the said amount to the plaintiff by 30th June, 2005 which amount was duly encashed by the defendant and appropriated for his own benefit but the defendant in breach of his promise failed and neglected to repay the same.
5. The plaintiff issued legal notices dated 13th February, 2006; 29th March, 2006 and 31st March, 2006 through his Advocate by registered post, with acknowledgement due calling upon the defendant to repay the entire amount due within ten days of receipt of such notice which was duly received by the defendant and a reminder was issued on 31.3.2006 duly received by him but of no effect.
6. Hence the suit.
7. The defendant contested the suit by filing a written statement denying all material particulars made in the plaint and contended inter alia, that he never approached the plaintiff in March 2005 or on any date for temporary financial assistance for the said sum of Rs. 29 lakhs for the purpose of development of his business agreeing to repay the same within 30.6.2005.
8. Specific case of defendant is that the plaintiff entered into criminal conspiracy with some bank officials to make unlawful gain and committed fraud upon this defendant and denied having executed any Promissory Note on 8th March, 2005 acknowledging receipt of a sum of Rs. 29 lakhs and undertaking to repay the said sum by 30th June, 2005. The defendant by separate suit prayed for declaration of the promissory note dated 08.3.2005 as forged and null and void by filing a T.S. 28/2011 in the Court of 1st Civil Judge (Jr. Division), Sealdah which suit on being transferred to this Hon’ble Court, was registered as EOS 8/2015 for the defendant’s signature has been forged. According to the defendant, the purported notice of demand dated 13th February, 2006, 29th March, 2006 and 31st March, 2008, alleged to have been issued through the plaintiff’s Advocate calling upon this defendant to repay and amount was never received by this defendant.
9. On the above pleadings following issues are framed for determination of the disputes between the parties:
(1) Is the instant suit maintainable either in law or in fact as framed?
(2) Had the defendant encashed three cheques being nos. 765916 dated March 14, 2005, 765918 dated March 21, 2005 and 765919 dated March 30, 2005, respectively drawn by the plaintiff on the Standard Chartered Bank, Shyambazar Branch, in favour of the defendant?
(3) Whether the defendant executed the Promissory Note dated March 8, 2005 promising to pay to the plaintiff an aggregate amount of Rs. 29 lakh only on or before June 30, 2005?
(4) Whether the so-called Promissory Note is inadmissible in evidence because of not drawing the same on proper stamp papers?
(5) Whether the defendant acknowledged the receipt of the payment thereby indicating to repay the plaintiff?
(6) Whether the signatures of the defendant appearing on the said Promissory Note is forged and was never executed by the defendant?
(7) Whether the defendant is liable to repay the lo
