KAPIL KUMAR versus RAJ KUMAR on 14 October 2022

Issues

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 05.08.2019 passed by the High Court of Punjab andHaryana at Chandigarh in Regular Second Appeal No. 1727 of 2016, bywhich, the High Court has allowed the said appeal preferred by theEoriginal defendant and has set aside the judgment and order passed bythe First Appellate Court as well as the Trial Court decreeing the suit forrecovery of Rs. 1,36,550/- the original plaintiff has preferred the presentappeal.

2. The appellant herein – original plaintiff instituted the suit againstFthe respondent – original defendant for recovery of Rs. 1 lakh. It wasthe case on behalf of the plaintiff that the defendant has borrowed asum of Rs. 1 lakh from him on 29.06.2007 and has also executed a pro-note (exhibit P1) and receipt (exhibit P2) in favour of the plaintiff. Thedefendant denied the execution of pro-note and took the stand that noloan was taken by the defendant and in fact the transaction was in betweenGthe father of the plaintiff and the defendant had paid the whole amountborrowed by him from the father of the plaintiff. The learned Trial Courtframed the relevant issues.

2.1 The plaintiff examined four witnesses, namely, PW1 – KapilKumar (plaintiff), PW2 – Yashpal Chand (handwriting and finger printH

expert), PW3 – Satish Kumar (deed writer) and PW4 – Sat Narian(clerk to prove legal notice).

2.2 The defendant examined three witnesses, namely, DW1 –Dinesh Kumar (clerk cum cashier, SBI to prove the deposit of amount inbank account), DW2 – Raj Kumar (defendant) and DW3 – Phool Singhs/o Puran Singh (father of plaintiff).

2.3 On appreciation of evidence, the learned Trial Court believedthe execution of pro-note executed by the defendant in favour of theplaintiff and consequently decreed the suit. The appeal filed by thedefendant before the learned First Appellate Court came to be dismissed.In the second appeal under Section 100 of Code of Civil Procedure, theHigh Court has interfered with the concurrent findings recorded by boththe courts below on execution of the pro-note by the defendant in favourof the plaintiff, solely on the ground that attesting witness to the pro-notehas not been examined therefore, the content of the pro-note has notbeen proved and consequently has allowed the second appeal.

2.4 Feeling aggrieved and dissatisfied with the impugned judgmentand order passed by the High Court the original plaintiff has preferredthe present appeal.

3. Learned counsel appearing on behalf of the appellant – originalplaintiff has vehemently submitted that in the facts and circumstancesof the case the High Court has erred in upsetting and/or quashing theconcurrent findings recorded by both the courts below on execution ofthe pro-note by the defendant in favour of the plaintiff, in exercise ofpowers under Section 100 of CPC.

3.1 It is submitted that when the findings on facts were recordedby both the courts below on execution of pro-note by the defendant infavour of the plaintiff which as such were on appreciation of evidenceon record, more particularly, the testimony of PW3, the same was notrequired to be interfered with by the High Court in exercise of powersunder Section 100 of CPC.

3.2 It is submitted that if the deposition of PW3 is considered as awhole, it is apparent that PW3 – deed writer has specifically stated thatwhen he asked the defendant as to whether he had received the moneythen the defendant admitted the receipt of money. It is submitted in thatview of the matter and the deposition of PW1 – plaintiff and the depositionof deed writer – PW3 the execution of pro-note and even the content of A

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Apayment of the consideration mentioned in the pro-note has beenestablished and proved. Therefore the High Court has committed a veryserious error in allowing the second appeal and consequently quashingand setting aside the judgment and decree passed by the learned TrialCourt confirmed by the learned First Appellate Court.B3.3 It is further submitted that even the signature on the pro-noteof the defendant has been established and proved by the plaintiff byexamining handwriting expert – PW2.

3.4 Making the above submissions and relying upon Section 4 ofthe Negotiable Instruments Act, 1881 (NI Act) and the findings recordedCby the learned Trial Court as well as the learned First Appellate Court, itis prayed to allow the present appeal and restore the judgment and orderpassed by the learned Trial Court confirmed by the learned First AppellateCourt.

4. While opposing the present appeal the learned counsel appearingDon behalf of the original defendant has vehemently submitted that as theplaintiff has failed to prove the execution of pro-note by examining thewitness to the pro-note the High Court has rightly quashed and set asidethe decree passed by the learned Trial Court confirmed by the learnedFirst Appellate Court.

E4.1 It is vehemently submitted by the learned counsel appearingon behalf of the defendant that as held in the case of Mirza GorganiVs. (Firm) Bhola Mal Nihal Chand; AIR 1934 Lahore 293 (2)burden to prove the execution of promissory note is on the plaintiff, evenif signatures are admitted and execution of document is denied.

F4.2 It is further submitted that even the plaintiff has to prove theconsideration which in the present case plaintiff has failed to prove. It issubmitted that in the facts and circumstances of the case presumptionunder Section 118 of the NI Act shall not be attracted as the executionof pro-note has not been proved.

4.3 It is submitted that as rightly observed by the High Court non-Gexamination of witness to the pro-note is fatal to the case of the plaintiff.It is submitted that as observed and held by this Court in the case ofM.S. Narayana Menon alias Mani Vs. State of Kerala and Anr.;(2006) 6 SCC 39 in the case of negotiable instrument in case ofwithholding of relevant evidence adverse inference can be drawn againstH

the person and presumption can be rebutted on the bases ofpreponderance of probabilities.

4.4 Making the above submissions it is prayed to dismiss the presentappeal.

5. We have heard learned counsel appearing on behalf of therespective parties at length and have gone through the judgment andfindings recorded by the learned Trial Court while decreeing the suitconfirmed by the learned First Appellate Court. We have also gonethrough the impugned judgment and order passed by the High Court.We have also re-appreciated the entire evidence on record including thedeposition of relevant witnesses examined by both the sides.

5.1 At the outset it is required to be noted that as such there wereconcurrent findings of facts recorded by the learned Trial Court as wellas the learned First Appellate Court on execution of pro-note by thedefendant in favour of the plaintiff. The said findings were on appreciationof entire evidence on record. Therefore, unless the concurrent findingsrecorded by the courts below were found to be perverse, the same werenot required to be interfered with by the High Court in exercise of powersunder Section 100 of CPC. Even the substantial question of law framedby the High Court cannot be said to be as such a question of law muchless substantial question of law. From the impugned judgment and orderpassed by the High Court it appears that as such no specific substantialquestion of law seems to have been framed by the High Court. However,it appears that what was considered by the High Court was whether theplaintiff has proved the execution of pro-note and the receipt by leadingcogent evidence. The aforesaid can be said to be a question of facts andcannot be said to be a question of law much less substantial question oflaw. Therefore, as such the High Court has committed a very seriouserror in upsetting the findings of facts recorded by the learned TrialCourt confirmed by the learned First Appellate Court on execution ofpro-note by the defendant in favour of the plaintiff.

6. Even otherwise on merits also the impugned judgment and orderpassed by the High Court is unsustainable. The signature of the defendanton the pro-note has been established and proved by the plaintiff byexamining the handwriting expert – PW2. No contrary evidence hasbeen led by the defendant to disprove his signature on the pro-note.Even the execution of pro-note has been established by the plaintiff by A

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Aexamining the deed writer - PW3. Now so far as the considerationmentioned in the pro-note is concerned there may be some minorcontradictions in the depositions of PW1 and PW3. However, at thesame time if the deposition of PW3 as a whole is considered, in thecross-examination it has come out that when the deed writer asked thedefendant that he has received the consideration, he has admitted theBsame.

6.1 In view of the above facts and circumstances of the caseemerging from the evidence on record, non-examination of the witnessto the pro-note cannot be held against the plaintiff. At this stage it isrequired to be noted that as per the provision of Section 118 of the NICAct there is a presumption of consideration in the negotiable instrument[Section 118(a)]. It is true that such presumption may be rebutted.However, no rebuttal evidence is led by the defendant. Under thecircumstances also the High Court has erred in allowing the secondappeal and quashing and setting aside the decree passed by the learnedDTrial Court confirmed by the learned First Appellate Court.

7. In view of the above and for the reasons stated above theimpugned judgment and order passed by the High Court is unsustainableboth, on law as well as on facts and the same deserves to be quashedand set aside and the same is accordingly quashed and set aside. TheEjudgment and decree passed by the learned Trial Court decreeing thesuit confirmed by the learned First Appellate Court is hereby restored.The present appeal is accordingly allowed. No costs.

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Bibhuti Bhushan Bose(Assisted by : Rakhi, LCRA)

Appeal allowed.

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