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1997 Supreme(Sikk) 8
HIGH COURT OF SIKKIM
M. SENGUPTA
B. B. LOHAR - Appellant
Versus
PREM PRAKASH GOYAL - Respondents
Civil Second Appeal 1 Of 1996
Decided On : July 26, 1997
G.P.ROY, N.K.P.Sarraf, N.K.Rai
Oral evidence is admissible to explain the real intention of the parties to a document under Section 92 of the Evidence Act.
Headnote:
NEGOTIABLE INSTRUMENTS ACT, 1881 - SECTION 4, 92 - PROMISSORY NOTE - INTERPRETATION - ORAL EVIDENCE - ADMISSIBILITY - COURT'S DISCRETION - FACTUAL FINDINGS - SECOND APPELLATE COURT'S JURISDICTION.
Fact of the Case:
Plaintiff claimed that he gave a loan of Rs. 5,000/- to the Defendant on 12-2-1981, evidenced by a document signed by the Defendant. The Defendant denied the loan and claimed that the Plaintiff had taken a loan of Rs. 7,000/- from him on 11-6-1980, out of which Rs. 5000/- was repaid on 12-2-1981, leaving a balance of Rs. 2000/-. The trial court held that the document was not a promissory note and dismissed the suit. The First Appellate Court reversed the trial court's decision and decreed the suit.
Finding of the Court:
The Second Appellate Court held that the First Appellate Court was justified in interpreting the document in the light of probability and with the help of the evidence on record. The court found that the Defendant's version of events was not supported by the evidence and that the Plaintiff had proved his case on a preponderance of probabilities.
Issues: 1. Whether the document in question was a promissory note as defined under Section 4 of the Negotiable Instruments Act, 1881? 2. Whether oral evidence was admissible to explain the real intention of the parties to the document under Section 92 of the Evidence Act? 3. Whether the First Appellate Court erred in reversing the trial court's decision?
Ratio Decidendi: 1. A promissory note must contain an acknowledgment of receipt of a specified sum by the receiver with an unconditional undertaking to repay the same. The document in question was a mere receipt acknowledging receipt of Rs. 5000/- by the Defendant from the Plaintiff, without any undertaking to repay the amount. Therefore, it could not be considered a promissory note. 2. Under Section 92 of the Evidence Act, oral evidence is admissible to explain the real intention of the parties to a document. The First Appellate Court was justified in considering the oral evidence to determine the nature of the transaction. 3. The First Appellate Court did not err in reversing the trial court's decision. The evidence on record supported the Plaintiff's claim that he had given a loan of Rs. 5,000/- to the Defendant.
Final Decision: The Second Appellate Court dismissed the appeal and affirmed the judgment and decree passed by the First Appellate Court.
( 1 ) THIS is an appeal against the judgment and decree passed on 31-7-1996 by Shri T. D. Rinzing, District Judge, South and West in Civil 1st Appeal No. 2 of 1993 arising out (of) judgment and decree passed on 4-9-1993 by Mrs. M. Rai, Civil Judge, East in Civil Suit No. 9 of 1985.
( 2 ) THE fact, in short, is that the Plaintiff gave a loan of Rs. 5,000/- on 12-2-1981 to the Defendant. A document was signed by the Defendant to that effect and it was agreed upon that the Defendant would reply the amount within a month therefrom. As the Defendant neglected to repay any amount within the stipulated period in spite of repeated verbal requests the plaintiff sent a letter of request or demand by registered post. This also could not fetch any result and, therefore, the Plaintiff sent a notice through his lawyer on 7-11-1984 demanding principal amount with interest thereon.
( 3 ) IN the written statement the Defendant refuted the contention of the plaintiff. The case of the Defendant is that the Plaintiff himself took a loan of Rs. 7,000/- on 11-6-1980 from the Defendant. Out of the said amount a sum of Rs. 5000/- was repaid on 12-2-1981 leaving a balance of Rs. 2000/ -. As the plaintiff insisted upon, the Defendant executed a receipt acknowledging receipt of Rs. 5000/- to the Plaintiff.
( 4 ) THE learned Civil Judge did not accept the Plaintiff's version of the case and held that the document in question could not be treated as promissory note and, therefore, could not be acted upon. Learned District Judge dealing with the case as the First Appellate Court could not agree with the views of the learned trial Court and decreed the suit for the principal amount, costs and interest pendente lite and for future period @ 6% per annum with effect from 1-5-1985 as the suit was filed on 30-4-1985.
( 5 ) BEING aggrieved by the aforesaid decision of the learned First Appellate Court the Defendant has come up before this Court with this second appeal.
( 6 ) IT should be noted at the outset that the scope of the Second Appellate Court is very limited and the Second Appellate Court should confine itself within the points of laws involved. Normally the Second Appellate Court should not intrude into the question of facts. Though this is a basic principle of law, there is or cannot be any rigid rule in this respect. In deciding a second appeal in proper perspective, the Second Appellate Court may have to enter into the questions of facts. A few decisions were submitted from the Bar which are AIR 1992 All 174, Nathu Singh Hariya v. Jagdish Singh Thumman; AIR 1986 MP 53, Jernail Singh v. Kanhaiyalal and AIR 1994 Bom 293, Amruta Babaji Mozaz v. Kondabai. It may be noted that these decisions do not help to arrive at a conclusion on the above point. In all these decisions it has been noted that the Second Appellate Court in exercising jurisdiction u/s. 100, CPC would not interfere on the questions of fact when there are concurrent findings of the two lower Courts on the points of facts. The case under our study is not of such nature. Here the two Courts below had contrary findings on the points of fact. Another decision reported in AIR 1990 SC 1973, Ram Chandra Pandurang v. Murlidhar Ramchandra, has also been cited. This case too comes to no assistance. In that case the High Court interfered with the findings on grounds which were not made out even by the Plaintiff in his plaint or evidence. Supreme Court held that High Court was not justified in doing so.
( 7 ) IN the instant case we may safely hold that the Court below differed widely on factual points which are to be looked into to come to a definite finding.
( 8 ) LEARNED Trial Court held that the document in question cannot be said to be a promissory note as defined u/s. 4 of Negotiable Instruments Act. It is apparent that the impugned document is simply a receipt acknowledging receipt of Rs. 5000/- by the Defendant from the Plaintiff. In this receipt there is no indication of any prom
