Balkishan Brothers (Firm) vs Pradeep Kumar

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

Advocates:
G. P. Agarwal and H. B. Mangal for applicants; R. A. Roman and R. C. Lahoti for non-applicants.

Headnote:(1) Civil P. C., 1908 -- O. 6, R. 5 -- better particulars under -- plaintiff when bound to supply -- suit on promissory notes reciting prior payment -- execution not receipt of consideration denied -- better particulars regarding payment should be supplied.
        (2) Civil P. C. 1908 -- O. 6. R. 13 -- presumption under -- when available -- facts constituting presumption denied -- effect -- Negotiable Instruments Act, 1881 -- S. 118.
        (3) Negotiable Instruments Act, 1881 -- S. 118 -- presumption under -- when available -- execution and receipt of consideration denied -- promissory notes reciting prior payment -- presumption not available -- Civil P. C., 1908 -- O.6, R. 13.
        The trial Court granted unconditional leave to the defendants to defend the suit. The defendants then filed an application for better particulars of the alleged consideration as stated in the plaint to enable them to know what case they have to meet and to prevent surprise at the trial so that they may not have to go to trial embarrassed by the obscurity and incompleteness of the case which they have to meet. The application was opposed, and it has been rejected by the trial Court, as it thought that there is a presumption in favour of the plaintiff about payment of consideration under section 118 of the Negotiable Instruments Act.
        Held : The defendants have a right to know the nature of the case they have to meet at the trial in view of the peculiar circumstances of the present case: more so, when the promissory notes recite that they are executed for the consideration already received. The defendants have not admitted the execution of the promissory notes of the payment of consideration. They have only mentioned that their signatures were taken by the father of the plaintiff, who was their legal adviser under certain circumstances. The District Judge was not right in observing that in view of the presumption under section 118 of the Negotiable Instruments Act, the plaintiff need not supply the particulars, and that the burden is on the defendants to prove payment of consideration. This is not quite correct. Under Order 6, rule 13 of the Code, neither party need in any pleading allege any matter of fact which the law presumes in his favour or as to which the burden of proof lies upon the other side unless the same has first been specifically denied (e. g. consideration for a bill of exchange where the plaintiff sues only on the bill and not for the consideration as a substantive ground of claim). So, the plaintiff is bound to give necessary particulars as to how and when the considerations were paid under these promissory notes. AIR 1937 PC 50, AIR 1967 SC 878 and AIR 1940 Nag. 261=26 MPLC 233 relied on. Revision allowed.