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IN THE HIGH COURT OF PUNJAB AND HARYANA
RAJ MOHAN SINGH, J.
Vijay Kumari – Appellant
Versus
Jaggar Singh – Respondent
RSA No. 4585 of 2010
Decided On : 20-07-2016
(B) Negotiable Instruments Act, 1881, S.118 – Promissory Note – The presumption in the context of Section 118(a) of the Act is to be raised unless and until contrary is proved with regard to consideration, date of instrument, time of acceptance of the promissory note, time of transfer of the promissory note, as to order of endorsement, as to appropriate stamps and holder being a holder in due course. (Para 20)
(C) Evidence Act, 1872, S.106 – Burden of Proof – Word 'until the contrary is proved' casts obligation on the defendants to lead evidence so as to dispel the presumption attached to a document whose execution is otherwise proved – Negotiable Instruments Act, 1881, S.118. (Para 20)
(D) Negotiable Instruments Act, 1881, S.118 – Suit for recovery – Promissory Note – Presumption of execution – The pronote carries the endorsement of the word 19 to complete it for the year, whereas the transaction took place in the year 2007 – The document itself is not proved to be beyond reasonable doubt, therefore, the presumption in terms of the Section 118(a) of the Act does not arise as the same would arise only where execution of instrument is proved. (Para 23)
(E) Negotiable Instruments Act, 1881, S.118 – Suit for recovery – Promissory Note – Presumption of execution – The defendant has discharged the onus by showing that the existence of consideration was improbable and doubtful and, therefore, plaintiff was required to prove that the pronote was executed for consideration – The failure on the part of plaintiff have to entail in declining the grant of relief on the basis of negotiable instrument.
RAJ MOHAN SINGH, J.
1. Plaintiff has preferred this Regular Second Appeal against the judgment and decree dated 24.08.2010 passed by Additional District Judge (Adhoc) Fast Track Court, Mansa vide which judgment and decree dated 13.11.2009 passed by Civil Judge (Senior Division) Mansa was set aside and suit of the plaintiff was dismissed with costs throughout.
2. Brief facts of the case as gathered from the record are that plaintiff fled suit for recovery of Rs. 2,12,650/- on the basis of pronote and receipt dated 18.06.2007 on the ground that the defendant had borrowed a sum of Rs. 2,00,000/- from her on 18.06.2007 with interest @ 1% per month and had also executed a pronote and receipt in her favour in the presence of witnesses. However, the amount was not paid towards principal or interest till filing of the suit despite the request made by the plaintiff. Hence the suit for recovery of Rs. 2,12,650/- (Rs. 2,00,000/- being the principal amount and Rs. 12,650/- as interest calculated @1% per month till filing of the suit) was filed.
3. The suit was contested by the defendant on all counts. He alleged that plaintiff had not obtained any money lending licence. The suit was filed on wrong facts. The alleged pronote and receipt were without consideration. The suit was contested on other counts of limitation and locus standi. Defendant denied that he ever obtained any loan from the plaintiff, nor he executed any pronote and receipt in favour of the plaintiff. The alleged pronote and receipt were claimed to be forged and fabricated and without consideration.
4. After filing replication, both the parties went to trial on the following issues:-
"1. Whether the plaintiff advanced a sum of Rs. 2,00,000/- to defendant on 18.06.2007 and the defendant executed pronote and receipt therefore? OPP.
2. If issue No.1 is proved, whether the plaintiff is entitled to interest, if so, at what rate? OPP.
3. Whether the plaintiff has concealed material facts, if so its effect? OPD.
4. Whether the pronote and receipt are forged and fabricated documents without consideration? OPD
5. Whether the suit is bad for want of licence of Money Lender Act? OPD.
6. Relief."
5. Plaintiff herself examined as PW-1 besides examining one Kashmiri Lal as PW-2. Defendant on the other hand stepped in the witness box as DW-1 and thereafter evidence of the defendant was closed.
6. After appraisal of the evidence, trial Court decreed the suit of the plaintiff vide judgment and decree dated 13.11.2009, however the same was reversed in appeal before the Additional District Judge (Adhoc) Fast Track Court, Mansa, who accepted the appeal vide judgment and decree dated 24.08.2010 and dismissed the suit throughout.
7. In the present appeal, in para No.9 of the ground of appeal, appellant has framed the following substantial questions of law:-
"(a) Whether the judgment and decree passed by the learned lower court is based on the mis-appreciation and mis-reading and mis-lead placed on the record.
(b) Whether in the absence of the clear cut admission by the defendant, an oral evidence can be relied upon?
(c) Whether the defendant pleaded the misrepresentation and forgery has been able to prove the same on the record?
(d) Whether the documents Ex. P.1 i.e. pronote and receipt has been duly proved by the sufficient evidence?"
8. I have heard arguments of both sides and have also carefully perused the record.
9. Learned counsel for the appellant vehemently argued that the defendant while appearing as DW-1 has admitted his signatures on the pronote and receipt in so many words and once the signatures on pronote and receipt are admitted, presumption under Section 118(a) of the Negotiable Instruments Act, 1881 (hereinafter to be referred as 'the Act') comes into being in order to make the instrument to be lawful enforceable.
10. Perusal of statement of DW-1 reveals that defendant has admitted his signatures on pronote Ex. P-1 and receipt Ex. P-2, who has claimed that these were obtained by the husba
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