Personal testimony is essential in monetary claims; absence undermines credibility.

ORAL JUDGMENT

The captioned appeal is directed against the judgment and decree dated 7.1.2011 passed in O.S.No.10498/1993 whereby the suit filed by the plaintiff for recovery of Rs.1,09,166/- with interest came to be decreed.

2. For the sake of convenience, the parties are referred to as per their rank before the trial Court.

3. The facts leading to the case are as under:

The plaintiff instituted the suit asserting that on 03.03.1993, the defendant approached him seeking a hand loan of Rs.1,00,000/-. It is specifically pleaded that the plaintiff advanced the said sum on the very same day and that the defendant, in acknowledgment thereof, executed an on-demand promissory note along with a consideration receipt, undertaking to repay the principal with interest at 24% per annum. It is further averred that the defendant agreed to pay Rs.2,000/- per month towards interest until full discharge of the loan. According to the plaintiff, despite repeated oral demands, the defendant failed to repay the amount, compelling the plaintiff to issue a legal notice dated 17.04.1993 and thereafter institute the present suit for recovery.

4. On service of summons, the defendant entered appearance and filed a detailed written statement stoutly denying each and every allegation made in the plaint. The defendant categorically denied having borrowed any amount from the plaintiff or having executed the alleged promissory note and consideration receipt. He further contended that several suits had been engineered against him at the instance of one D.P. Gupta under benami names and that the present suit was also a part of such orchestrated litigation. Alleging collusion and abuse of the judicial process, the defendant sought dismissal of the suit.

5. In order to substantiate their respective claims, both parties led oral and documentary evidence. The plaintiff examined his wife and General Power of Attorney holder as P.W.1, an alleged attesting/independent witness as P.W.2, and a handwriting expert as P.W.3, and marked documents at Exs.P1 to P25. The defendant examined himself as D.W.1 and another witness as D.W.2 and produced documents marked as Exs.D1 to D5. The documents secured through the Court Commissioner were marked as Exs.C1 to C6.

6. The trial Court, upon appreciation of the oral and documentary evidence, decreed the suit. The decree is primarily founded on the testimony of P.W.1, being the wife and GPA holder of the plaintiff, the supporting evidence of P.W.2, and the opinion evidence of the handwriting expert. The trial Court also placed reliance on the Commissioner’s report while recording its findings in favour of the plaintiff. Hence, the present appeal is preferred by the defendant calling in question the correctness and legality of the said judgment and decree.

7. In view of the rival submissions and the material available on record, the following points arise for consideration in this appeal:

"(i) Whether the finding of the trial Court that the plaintiff has proved the alleged loan transaction and the execution of the promissory note and consideration receipt suffers from perversity and is unsupported by cogent and reliable evidence?

(ii) Whether the trial Court erred in not drawing an adverse inference against the plaintiff for his non-examination, particularly when the evidence of P.W.2 does not inspire confidence?

(iii) Whether the trial Court was justified in decreeing the suit?

(iv) What Order?"

Findings on point Nos. (i) to (iii):

8. The very substratum of the plaintiff’s case rests upon the alleged advancement of a hand loan of Rs.1,00,000/- said to have been made on 03.03.1993. The existence of this transaction constitutes the sole foundation for the claim based on the on-demand promissory note and consideration receipt. However, s