The main legal point established in the judgment is the application of Section 36 of the Indian Stamp Act, which bars the questioning of the admissibility of a document once it is admitted in evidence, and the principle of preponderance of probabilities in civil trials.

JUDGMENT :

Soumen Sen, J.

1. The appeal is against a money decree.

2. There is a cross appeal preferred by the plaintiff in so far the decree document allow pendent lite interest. Both the appeal and the cross appeal are taken up together and disposed of by this common judgment.

3. The plaintiff filed a suit for recovery of a sum of Rs.39,44,000/- on account of money lent and advanced. The plaintiff alleged that in or about March, 2005 the defendant had approached the plaintiff for a temporary financial assistance to the extent of Rs.29 lakhs for the purpose of development of his business and agreed to repay the said amount within 30th June, 2005. The plaintiff claimed that the relationship between the parties was cordial and on the assurance that the plaintiff would repay the same within the aforesaid period, the plaintiff had given three account payee cheques bearing no.765916 dated 3rd March 2005, 765918 dated 21st March 2005 and 765919 dated 3rd March 2005 respectively drawn on Standard Chartered Bank, Shyambazar Branch aggregating to Rs. 29 lakhs towards loan.

4. In acknowledgement of the receipt of such sums the defendant executed a promissory note on 8th March 2005 and undertook to repay the said sum by 30th June, 2005. The plaintiff alleged that although the defendant had encashed the said three cheques and appropriated the entire amount for his own benefit, the defendant had neglected and refused to pay the said sum along with interest at the agreed rate. In spite of demand and legal notices dated 13th February, 2006, 29th March 2006 and 31st March 2008 the defendant had failed and neglected to pay the said sum. Hence the plaintiff filed the suit for recovery of the said sum along with interest aggregating to Rs.39,44,000/-.

5. The defendant had entered appearance and filed a written statement. In the written statement the defendant had denied the jural relationship of debtor and creditor as well as execution of the promissory note.

6. On the basis of the pleadings as well as the documents disclosed the learned Single Judge framed the following issues for trial:-

(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 lakhs 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 loan to the tune of Rs.29 lakh only alongwith interest as claimed by the plaintiff?

(8) Whether the defendant received the legal notices dated February 13, 2006, March 29, 2006 and March 31, 2006, by putting his signature on the acknowledgement due cards. Whether his signatures appearing on the said A/D cards are forged?

(9) Whether the plaintiff is entitled to get decrees as prayed for?

(10) To what relief or reliefs, if any is the plaintiff entitled?"

7. On the basis of the oral and documentary evidence the learned Single Judge had arrived at the conclusion that the plaintiff had lent and advanced a sum of Rs.29 lakhs and the defendant had acknowledged the debt by executing the promissory note.

8. This decree is under challenge.

9. Mr. Swarnendu Ghosh, the learned Counsel appearing on behalf of the appellant/defendant has submitted that the said decree was passed on conjecture and surmise inasmuch as the judgment suffers from error of law. Mr. Ghosh submits that the d