Suit for Recovery--Execution of pronote and receipt cannot be held to be disproved merely because attesting witness, to execution of pronote and receipt, having an old family relationship with plaintiff

Amol Rattan Singh, J.

This is the second appeal filed by the defendant in a suit instituted by the respondent, seeking recovery of a sum of Rs.3 lacs which the respondent-plaintiff claimed had been borrowed by the appellant-defendant on 05.05.2007, with a promissory note having been duly executed by the appellant to that effect, and a receipt of the aforesaid amount also having been acknowledged by the appellant, both the pronote and the receipt having been exhibited in evidence as Exhibits P-1 and P-2 respectively.

2. To prove the execution of the aforesaid pronote and receipt of the sum borrowed by the appellant pursuant thereto, the respondent-plaintiff examined the marginal witness to the receipt, i.e. Rakesh Kumar, as PW-2, as also the Deed Writer of the pronote, i.e. one Rajinder Singh, as PW-1. The plaintiff also examined himself as PW-3 and one Yashpal Chand Jain, handwriting & finger print expert, as PW-4.

3. The appellant in his written statement, other than taking the usual preliminary objections on non maintainability of the suit, lack of cause of action, locus standi etc., on merits had completely denied ever borrowing the aforesaid amount from the respondent-plaintiff or having ever executed any pronote and receipt, which he claimed had been prepared by the plaintiff by playing a fraud upon him.

It was further contended in the written statement that the plaintiff and his brother Gulab Singh are commission agents, carrying on the said business through several firms, with the appellant-defendant being an agriculturist, who had sufficient agricultural land and income there from, on account of which he was in no need of any loan.

Still further, it was contended that the appellant-defendant used to sell agricultural produce at the shop of the plaintiff and it was during the course of one of such sales that the plaintiff prepared the pronote and receipt by playing a fraud and by misrepresentation.

4. A replication having been filed to the written statement, the following issues were framed by the learned trial Court:-

'1. Whether the plaintiff is entitled to the recover Rs.3,00,000/- from the defendant with interest @ 2 1/2% per month from the date filing of the suit till the date of actual realization? OPP

2. Whether suit of the plaintiff is bad for want of legal notice? OPD

3. Whether the plaintiff has not cause of action against the defendant? OPD

4. Whether the suit of the plaintiff is not maintainable in the present form? OPD

5. Whether the plaintiff has not come in the Court with clean hands and has suppressed true and material facts from the Court? OPD

6. Whether plaintiff has no money lending licence under law? OPD

7. Whether plaintiff has no locus standi to file the present suit? OPD

8. Relief. '

5. The appellant-defendant examined himself as DW-1, one Mahavir Singh as DW-2 and Rameshwar Parshad, Mandi Supervisor in the Municipal Committee, Safidon as DW-3.

As regards DW-3, he is shown to have brought record pertaining to one M/s Saini Trading Company, Safidon, on the basis of which he testified that it was a partnership firm run by Inder Singh, Chander Singh and Gulab Singh, Chander Singh being the respondent plaintiff, in support of which testimony he tendered a certified copy of the register brought by him, as Ex. DW-3/A.

He also tendered a copy of a register pertaining to a firm known as M/s Musadi Lal Gulab Singh as Ex. DW-3/B, stated to be a proprietorship firm run by the aforementioned Gulab Singh.

Other documentary evidence was also tendered by the appellant defendant.

6. Upon appraising the evidence before it, the learned trial Court recorded a finding that Rajender Singh, Deed Writer (PW-1) had testified to having scribed the pronote Ex.P1 on the asking of the appellant-defendant, Ishwar, with the appellant having received Rs.3 lacs in his presence and having appended his signatures both, on the pronote as also the receipts (Exhibits P-1 & P-2 respectively), in the presence of the said witness. Similarly, PW-