IMPORTANT POINT
Pronote and receipt--Execution of--Proof of--Statement of plaintiff is supported by his own brother and uncle only--No independent witness has been examined--Execution of pronote-cum-receipt not proved.

Mr. L. N. Mittal, J. (Oral).- Rawat Singh – plaintiff, who was successful in the trial court, but has been non-suited by the lower appellate court, has filed the instant second appeal.

2. Plaintiff-appellant filed suit against defendant-respondent Mahender Singh for recovery of Rs.51,000/- alleging that on 11.06.2004, defendant borrowed Rs.33,500/- from the plaintiff and agreed to repay the same with interest @ 2% per month and executed pronote and receipt for the same, but the defendant failed to pay the principal amount and interest. Accordingly, the plaintiff claimed Rs.33,500/- as principal amount and Rs.17,500/- as interest thereon till filing of the suit.

3. The defendant broadly denied the plaint allegations. The defendant denied having received any loan amount from the plaintiff or having executed any pronote and receipt. It was pleaded that earlier, defendant’s father Deep Chand had taken loan of Rs.60,000/- from the plaintiff and mortgaged two acres land as security on 31.07.2000 and plaintiff had filed suit against defendant’s father for possession of the said land. During pendency of the said suit, Deep Chand died and his legal heirs including the present defendant contested that suit, which was decreed for recovery of money. That suit was instituted in the year 2003 and during pendency of the suit, the plaintiff would not have advanced loan to the defendant as their relations were not friendly or cordial, as alleged by the plaintiff. Various other pleas were also raised.

4. Learned Additional Civil Judge (Senior Division), Loharu, vide judgment and decree dated 18.07.2009, decreed the plaintiff’s suit. However, first appeal preferred by the defendant has been allowed by learned District Judge, Bhiwani, vide judgment and decree dated 29.03.2011 and thereby, suit filed by the plaintiff stands dismissed. Feeling aggrieved, plaintiff has preferred the instant second appeal.

5. I have heard learned counsel for the appellant and perused the case file.

6. In order to prove his case, the plaintiff himself appeared in the witness-box as PW-3 and examined his brother Raj Karan (PW-2) and uncle Ram Chander (PW-1) – both attesting witnesses of the impugned pronotecum- receipt. All of them have broadly stated according to the plaintiff’s version. On the other hand, the defendant himself appeared in the witnessbox as DW-1 and broadly stated according to his own version.

7. The plaintiff has not been able to prove the execution of the impugned pronote-cum-receipt and advancement of loan because statement of plaintiff is supported by his own brother and uncle only. No independent witness has been examined. Even scribe of the pronote-rum-receipt has not been examined by the plaintiff as witness nor any handwriting expert has been examined to depict that the pronote-cum-receipt bears signatures of the defendant. On the other hand, the defendant has denied the loan as well as his signatures on the pronote-cum-receipt and the execution thereof.

8. Admittedly, plaintiff had filed suit in October 2003 against defendant’s father. It is highly improbable that during pendency of the said suit, the plaintiff advanced loan to the defendant.

9. It is also worth mentioning that Ram Chander (PW-1) is a practising lawyer in Rajasthan – about 50 kilometers from Loharu. The pronote was executed at 11:00 A.M. i.e. during working hours on a working day. It also creates doubt about the very presence and veracity of testimony of Ram Chander (PW-1). Statements of plaintiff’s witnesses have also been found to be contradictory.

10. Learned counsel for the appellant vehemently contended that brother and uncle of the plaintiff could also be good witnesses. Reliance in support of this contention has been placed on judgment of this Court in the case of Dharam Pal vs. Pirthi Singh reported as [2009(3) Law Herald (P&H) 2212] : (2009-3) The Punjab Law Reporter 236, wherein attesting witness of the pronote happened to be nephew of the respondent-plaint