RSA No.2481 of 2008 (O&M) 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH R.S.A. No. 2481 of 2008 (O&M) Date of Decision: November 23, 2009 Ranjit Singh ...........Appellant Versus Karnail Kaur and others ..........Respondents Coram: Hon'ble Mrs. Justice Sabina Present: Mr.Suresh Goel, Advocate for the appellant. ** Sabina, J. Ranjit Singh, plaintiff filed a suit for recovery. The suit of the plaintiff was dismissed by the Additional Civil Judge (Senior Division) Barnala vide judgment and decree dated 28.10.2006. Aggrieved by the same, plaintiff preferred an appeal and the same was dismissed by the Additional District Judge, Barnala vide judgment and decree dated 14.8.2007. Hence, the present appeal by the plaintiff. The facts of the case, as noticed by the Additional District Judge in paras 2 to 4 of its judgment, read as under:- “2.Succinctly, the facts leading to the filing of the present appeal are that initially, Ranjit Singh, plaintiff filed the suit for the recovery of Rs.1,99,320/- against the defendants. It is averred in the plaint that original borrower Jaswant Singh, son of Kirpal Singh resident of village Bhaini Jassa, has since died and the RSA No.2481 of 2008 (O&M) 2 defendants are his legal heirs and are owners in possession of the estate of deceased Jaswant Singh and, therefore, liable to pay the disputed amount to the plaintiff and the plaintiff is entitled to recover the same from them. Further, it is averred in the plaint that Jaswant Singh, son of Kirpal Singh, husband of defendant No.1 and father of defendant No.2 and 3 and son of defendant No.4 on 25.6.2000 took a cash loan of Rs.1,15,800/- on interest @ Rs.2% per month and in pursuance of the same, executed the pronote and receipt in favour of the plaintiff. This pronote and receipt was got scribed from Kewal Krishan, son of Bant Ram, resident of Bhaini Jassa. Jaswant Singh had thumb marked the pronote and receipt and the receipt was also attested by Gurdev Singh, son of Bishan Singh, resident of Bhaini Jassa and also by scribe by Kewal Krishan. Further, it is averred that thereafter, despite repeated requests made by the plaintiff, neither Jaswant Singh nor his legal heirs returned, either towards principal amount or the interest accrued thereon. The defendants have inherited the estate of Jaswant Singh, deceased and, therefore, the defendants are now liable to pay the outstanding amount. Even registered notices were sent to the defendants to make the payment of the outstanding amount, but to no effect. 3. In pursuance of the notice issued by the Court at the first instance, the defendants were proceeded against exparte. However, later on, they joined the proceedings and filed the written statement. In the written statement, the defendants raised the legal objections that Jaswant Singh deceased was a drunkard RSA No.2481 of 2008 (O&M) 3 person and after providing liquor to Jaswant Singh, Jeon Singh, father of the plaintiff used to obtain his thumb impressions on the pronote and then filed it in favour of his sons. Deceased Jaswant Singh was never in need of money nor Jaswant Singh deceased constructed any house nor performed the marriage of his son. As such, question did not arise about his borrowing any amount from the plaintiff. In fact, his thumb impression were taken under the influence of liquor. In this regard, a gathering had taken place in the village and in that gathering, it came to know that many persons had obtained the thumb impressions of Jaswant Singh on pronote and receipts and in the said gathering, on the asking of the Panchayat, Jeon Singh had shown the pronote in his favour as well as in favour of his sons and he hold that the pronote and receipt were scribed after settling the account, as a security, they used to fill three pronotes and on asking of Jeon Singh, the Panchayat got the sale deed executed from Jaswant Singh regarding 10 kanals of land in favour of himself and his son and father of the plaintiff then stated that now they do not have any pronote. The value of 10 kanals of land was worked out to be Rs.3,27,000/- and the entire amount was settled. However, the same was executed for an amount of Rs.2,60,000/- only to save the stamp duty. As such, the plaintiff has no locus standi and cause of action to file the present suit. Father of the plaintiff had concealed the pronote and did not hand over the same to the Panchayat. On the asking of Jeon Singh, Jaswant Singh had executed the sale deed of his land. Jeon Singh had joint RSA No.2481 of 2008 (O&M) 4 family headed by him. The pronote and receipt in question are forged and fabricated documents. On merits, borrowing an amount of Rs.1,15,800/- by Jaswant Singh from the plaintiff, as alleged by the plaintiff, has been denied and as such, the execution of the pronote and receipt in pursuance of the same, has also been denied. The pronote and receipt in question is alleged to be forged and fabricated document. All other averments have been specifically, denied. 4. In the replication, the plaintiff reiterated the facts pleaded in the plaint. On the pleadings of the parties, the following issues were framed:- “1.Whether the plaintiff is entitled to recover the suit amount?OPP 2. Whether the plaintiff is entitled to remove interest on the suit amount, if so, at what rate?OPP 3. Whether the plaintiff has no locus standi to file the present suit?OPD 4. Whether the pronote and receipt are false and friviolous?OPD 5.Whether the suit of the plaintiff is not maintainable in the present form?OPD 6. Relief.” After hearing the learned counsel for the appellant, I am of the opinion that the present appeal deserves to be dismissed. Plaintiff had filed a suit for recovery basing his claim on pronote and receipt dated 25.6.2000. Plaintiff had technically proved the RSA No.2481 of 2008 (O&M) 5 execution of the pronote and receipt by examining Kewal Krishan,PW1, Scribe of the Pronote and Receipt, PW5 Navdeep Gupta, Handwriting and Finger Prints Expert, PW2 Gurdev Singh, Attesting Witness of the receipt. However, the defendants succeeded in rebutting the presumption that the pronote and receipt had been executed for consideration in this regard. Learned Additional District Judge in its judgment has held as under:- “In the back drop of the aforesaid dictum, on the close scrutiny of the evidence led on record, the defendants to my mind have been successful in rebutting the presumption that has been raised against them, in view of the testimony of the plaintiff and his witnesses. No doubt, the plaintiff and his witnesses, have deposed about the execution of the pronote and receipt on 25.6.2000 by deceased Jaswant Singh after borrowing an amount of Rs.1,15,800/- but however at the same time, it is necessary to note that there are such circumstances, appearing in the testomony of the plaintiff and his witnesses, which strengthen the version of the defendants. At the very outset, it is significant to note that Kewal Krishan PW1, who is the scribe of the pronote and receipt in question, while facing cross-examination, has very specifically admitted to be correct that Jeon Singh got Ex. P1 and Ex.P2 executed in favour of his son Ranjit Singh. He also admitted to be correct that Jeon Singh had settled previous accounts with Jaswant Singh, in lieu of that pronote Ex.P1 and receipt Ex.P2 were got scribed by him. He further stated that nothing was paid in his presence to the deceased Jaswant Singh by the plaintiff or Jeon Singh. He further states that the parties had settled their RSA No.2481 of 2008 (O&M) 6 accounts themselves. He further stated that by parties, he means Jaswant Singh and Jeon Singh, settled their accounts, but he had not seen the pronote at the time of scribing of Ex.P1 and Ex.P2. Further it is also significant to note that Gurdev Singh PW2, who is an attesting witness to the receipt, which facing cross- examination as PW2 has also stated that Ex.P1 and Ex.P2 were scribed at the instance of Jeon Singh and Jaswant Singh. However, Jaswant Singh had executed the pronote and receipt in favour of the plaintiff at the instance of Jeon Singh. Previous pronote, in which, Jaswant Singh and Jeon Singh settled their accounts was in favour of Jeon Singh and in lieu of that pronote, present pronote Ex.P1 and receipt Ex.P2 were executed. He also admitted to be correct that Jeon Singh after the execution of pronote and in lieu of this money got the sale deed executed in favour of his son Jarman Singh as Jarman Singh had got less share than his other brothers. He also admitted to be correct that at the time of execution of pronote, all the brothers alongwith their father were joint, but later on, they had separated. He further stated that nothing was paid in his presence either by Ranjit Singh or by Jaswant Singh. Likewise, further it is also significant to note that plaintiff himself when stopped into witness box as PW3 while facing cross-examination has admitted about, they being three brothers namely Uttam Singh, Jarman Singh and Ranjit Singh and Jeon Singh, being their father. He also did not deny that Jaswant Singh had taken money Jeon Singh or his other sons. He further stated that entire money was given in cash and after RSA No.2481 of 2008 (O&M) 7 settling the accounts, pronote was executed. He also admitted to be correct that various pronotes and receipts were executed by Jaswant Singh in favour of his father Jeon Singh, himself as well as his other brothers. He admitted to be correct that the pronote ExD1 and receipt Ex.D2 were executed in his favour. He also admitted to be correct that Ex.D3 and ExD.D4 were executed in favour of his brother and also that Ex.D5 and Ex.D6 were executed in favour of Jangir Singh Ex.D7 and Ex.D8 were executed also in favour of Jangir Singh, Ex.D9 and Ex.D10 were executed in favour of Jarman Singh Ex.D-11 and Ex.D12 were executed in favour of Jarman Singh. Ex.D13 and Ex.D14 were executed in favour of Jangir Singh, Ex.D15 and Ex.D16 were also executed in favour of Jangir Singh. Ex.D17 and Ex.D18 were executed in favour of Jarmanjit Singh, Ex.D19 and Ex.D20 were executed in favour of Jangir Singh.Ex.D21 and Ex,.D22 were executed in favour of Jarman Singh, Ex.D.23 and Ex.D24 pronote and receipt were executed in favour of Jangir Singh, Ex.D25 and Ex.D26 were executed in favour of Jarman Singh, Ex,D 27 and Ex.D28 were executed in favour of Jangir Singh Ex.D29 and Ex.D30 were executed by Jaswant Singh in favour of his father Jeon Singh. He also admitted to be correct that the pronotes and receipt Ex.D31, Ex.D32, Ex.D33, Ex.D.34 Ex.D35, Ex.D36, Ex.D37, Ex.D38, Ex.39 Ex.D40, Ex.D41, Ex.D42, Ex.D43 and Ex.D.44, which are prontoes and receipts were executed by Jaswant Singh in his favour. From the aforesaid cross- examination of the plaintiff, it is evident that there is voluminous RSA No.2481 of 2008 (O&M) 8 evidence brought on record about the various pronotes and receipts executed by Jaswant Singh in favour of Jeon Singh and his sons, However, from the cross-examination of material witnesses of the plaintiff, it is evident that nothing was paid in cash in their presence which is contrary to their examination-in- chief and as per the pleadings of the plaintiff. Although, it is true that parts consideration can also be there, but however, the witnesses of the plaintiff have admitted that in lieu of the outstanding money, Jaswant Singh had executed the sale deed in favour of son of Jeon Singh, namely, Jarman Singh as Jarman Singh had got less share than his brothers in the parititon. Also from the cross-examination of the witnesses, it is evident that at the time of execution of the pronote and receipt in question, the plaintiff and his brothers were joint with their father. From the aforesaid it is evident that the plaintiff is not coming out with the true picture. There were earlier transactions of borrowing between the plaintiff and his father as well as his other brothers with Jaswant Singh, deceased and in the settlement of the outstanding amount, the sale deed was executed. Rather, in fact, the pronote and receipt in question were not executed for the amount, as it is now stated in the present suit. In fact, from the cross-examination of the plaintiff and his witnesses, the fact of lack of consideration is amply established and consequently it implies that the defendants have successfully rebutted the presumption raised against them under Section118 of the Negotiable Instruments Act and thus, passing of the consideration RSA No.2481 of 2008 (O&M) 9 as alleged by the plaintiff is not established. Consequently, the suit has been rightly dismissed by the learned lower court. Resultantly, the appeal, being without merits is also dismissed with costs.” Thus, the defendants were successful in proving numerous pronotes and receipts executed by Jaswant Singh in favour of Jeon Singh, father of the plaintiff and in favour of brothers of the plaintiff. The witness examined by the plaintiff admitted that in lieu of outstanding amount, Jaswant Singh had executed the sale deed in favour of Jerman Singh son of Jeon Singh at the time of execution of the pronote and receipt in question. Admittedly, plaintiff and his brothers were joint with their father. In these circumstances, learned Additional District Judge, after appreciating the evidence led by the parties on record, rightly came to the conclusion that the suit of the plaintiff was liable to be dismissed as the passing of the consideration at the time of pronote and receipt had not been established. No substantial question of law arises in this case which would warrant interference by this Court. Accordingly, this appeal is dismissed. ( Sabina ) Judge November 23, 2009 arya