t^- ^ ^ IN THE HIGH COURT OF JUDICATURE AT BILASPUR SECONDAPPEAL N0. ^f^ OF 2005.. APPELLANT: Sachchanand Moolchandani, son of Late Jockey Rara Moolchandani, aged about 55 years, resident of Kelkarpara, Raipur. vs Dr. Meghraj K Raranani, aged about 53 years, son of Shri Khilunial Raranani, resident of Jawahar Nagar, Mamta Nursing Home, Raipur. SECQND APPEALJJNDER SECTION 100 QF THE CQDE OF CIVIL PROCEDURE, 1908 -TP^r.-t-—r,^^/.o1Trn1u^d__aJ_ RESPONDENT: [Plaintiff] AF^ Appellant/ Defendant RespondenV Plaintiff HIGH COURT OF CHHATTISGARH : BILASPUR Second Appeal No. 485 of 2005 Sachchanand Moolchandani Vs. : Dr. Meghraj K Ramnani AppellanVdefendant byShriB.P. Sharma, Advocate. JUDGMEN (Delivered on ^ ^- / ^ //2006) DhirendraMishra. J 2. The appellant/defendant has preferred this second appeal under Section 100 of the Code of Ch/il Procedure (for brevity 'the Code') as he is aggrieved by the impugned judgment and decree passed by learned lower appellate Court and by which the appeal preferred by the appellant against the judgment and decree dated 28.03.2005 passed in civil suit No. 36- B/2002 has been dismissed and the appeal preferred by the respondent/plaintiff against the above judgment and decree has been partly allowed. (Parties hereinafter shall be referred to as per their description before the trial Court.) The plaintiff fried a civil suit for recovery of amount of Rs.25,000/- advanced to the defendant against two promissory notes dated 25.05.1992 for Rs.15,000/- and 26.05.1992 for Rs. 10,000/- and the Snterest atthe rate of 18% per annum against the above amount and other expenses. Thus the plaintiff claimed recovery of a total sum of Rs. of Rs.34,000/- and interest at the rate of 18% per annum from the date of institution of the suit titt the re- payment of loan advanced. 3. The defendant denied the averments ofthe plaint and submtttedthat he has not taken any loan from the plaintiff and he does not recognize him and in fact as per prevailing practice vrfienever he required money in business, he obtained the same through broker Amrft Kumar Jaisinghani who provided the requjred amount after obtaining his signature overthe blank promissory note. In the present case also he had contacted said Amrit Kumar for loan who provided Rs.25,000/- after obtaining his signatures on two blank promissory notes. He further submitted that he had r^urned the said amount to Amrit Kumar, however two promissoiy notes bearing his signatures had not been retumed and the plaintiff had filed the above sutt by filling in his name and date fraudulently in the above promissory notes. He further objected that the suit was liabte for dismissal for non-joinder of necessary party Amirt Kumar as the promissory notes bear the signature of Amirt Kumar. 5. 4. The trial Court after framing several issues decreed the suit of the plalntiff by recording a finding that the plaintiff is not money lender, the defendant had taken loan of Rs.15,000/- and 10.000/- on 25.05.1992 and 26.05.1992 and had admitted to pay interest at the rate of 18% per annum as the defendant had executed two promissory notes against the said loan and interest accrued on the loan, thesuit is not barred by limitation and it is not proved that the defendant obtained Rs.25,000/- from broker Amirt Kumar after putting his signature on two promissory notes. It has been further held by the trial Court that Amirt Kumar is not a necessary party and accordingly the suit was decreed for a sum of Rs.25,000/- with Costs. The leamed trial Court also cfirected that the documents in question are bonds and the plaintiff is required to aflix stamp duty at the rate of 4% over the above documents. The plaintHT as also the defendant preferred separate civil appeals against the above judgment wtiteh are registered as Ch/il Appeal No.13-8/2005 and 12-B/2005 respectively and the leamed lower appellate Court by the impugned judgment and decree dismissed the civil appeal preferred by the appellantfdefendant and partly allowed the civil appeal preferred by the ^ respondent/plaintiff by recording a finding that bdh the documents of Ex.P/1 and P/2 are promissory notes and not bonds and therefore the finding ofthe trial Court that the same are bonds, has been set aside and accordingly the direction regarding payment of stamp duty has also been set aside. By the impugned judgment and decree the tearned lower appellate Court has also arrived at the conclusion that the defendant is money lender, hovwever, interest against the said toan amount from the date of institution ofthe sujt till re-payment ofloan amount, has been refused on the ground that the plaintiff has not complied with the mandatory provisions of Sections 3 and 7 ofthe Money Lending Act and interest at the rate of 6% per annum over Rs 25,000/- from the date of institution ofthe suit till the re- payment has been ordered. 6. Learned counsel for the appellant has assailed the impugned judgment and decree on the followng grounds; 1. that findings of both the Courts below that the loan was advanced by the plaintiff to the defendants ar6 based on improper appreciation of oral and documentary evidence available on record. 2. that both the Courts below were not justrfied in drawing adverse inference against the defendant for not examining broker Amirt Kumar as a witness and the above finding has been arrived at by jgnoring the common practice prevailing in the business of money lending which is done through brokers. 3. that the documents of Ex.P/1 and P/2 bear the signatures of Amrit Kumar who has also executed a document of Ex.D/1 v^iich mentions that he received a sum of Rs.25,000/- on behalf of Sachchanand from Tirupati Sales Corporation and also stipulates that he shall be retuming the promissory notes after receiving the same. 7. The lower appellate Court after examinmg the documents of Ex.P/1, P/2 and D/1 and after discussing the evidence available on record in detail has arrived at the conclusion that the execution of the promissory notes has been established by the admission ofthe defendant that he has signed the above documents and therefore, it was the onus of the defendant to ^l 8, e^ablish that he had repaid the said amount against two proinissory notes through broker and he has faited to discharge his onus as he has not examined broker Amirt Kumar in support of his contention. The above finding is based onproperappreciationofevidenceonrecord andthe same is concurrent finding of fact recorded by both the Courts below which cannot be interfered at the stage of second appeal. Learned counsel for the appeltant has further argued that the documents of Ex.P/1 andP/2 are in fact bondsas deflned in Section 2(5) of Indian Stamp Act as it bear the signature of a wAness and is not a promissory note. In support of his contentlon he relies upon the judgment offull Bench of M.P. High Court reported in AIR 1976 M.P. 144 in the matter of Santsinah Vs. Madandas Panika and another. 9. In the aforesajd judgment the definition of bond as given in Section 2(5) and promissory note as given in Section 2(22) of the Indian Stamp Act and further the definition of promissory note under Section 4 ofthe Negotiable Instmment Act have been reproduced and thereafter it has been held as under; The essentiafs afa promissory noteare:-- (1) An uncond&tonal undeftaking to pay; (2) The sum sfwukl be a sum of money and shoulcl be eeiiam; (3) The payment sfwukf be to tfye order af a person who is ceftain, orto the bearerofthe instrument; an<f (4) The maker shoukl sing &: If these fotir condStons exist, the in^rument is a promissory note. The essentials of a bond are- (1) There must be an undertaking to pay, (2) The sum shoukt te a sum of money but not necesserify ceiiwn; ^ (3) The payment w8f 6e to aootfcer person named in the nstnimen^; (4) The maker shoukf sign ft; (5) The instrument musS Ae a^tested by a w^ness; and (6) ft must nct be payable to onfer orbearer. On a comparison bet\ween the essentials of a promissory note and those of a bond, three dlstmguishing features have been enumerated as /L under; (1) Ifmoney payabte underthe instrument is not ceitain, S cannot be a promissory note, afhough Scan bea bond. (2) If the insttvmef^: is nc^ aHestecf by a wSness, i cannot be a boncf, afthough K may be a promissory ncrfe. (3) lf the instrument is payable to order or bearer, 9 cannat be a bond, bt^ i can be promissoFynote. Accordingly, it has been held in the above cited case that the bond must be attested by a witness and it must nd; be payable to order or bearer. 10. However, in the instant case the documents of Ex.P/1 and P/2 cteariy stipulate payment payable to the bearer or order and in the aforesaid circumstances, the same cannot be sald to be a bond as the above documents do not have the features of a bond whereas it has all the Teatures of promissory note and simply because tt is attested by a witness, it does not become bond and therefore, the leamed lower appellate Court has not committed any illegality by recording a finding that the documents in question are promissory notes and not bond. 11. The other question of law proposed by leamed counsel for the appetlant is 'whether the learned lower appellate Court was Justified in recording a finding in the firstappeal on a point which was never raised by the appellant in his memo of appeal as per provisions of Order 41 Rute 2 ofthe Code as admittedly no leave was granted to the parties to address their arguments ^s^. regarding the nature of the documents in question?" The above argument by learned counsel for the appellant cannot be sustained in view of the fact that the plaintiff has ,also preferred civil appeal No. 13-B/2005 and had challenged the findings of the trial Court by which he was directed to pay stamp duty at the rate of 4% and by the impugned common judgment both the appeals have been disposed of. 12. Thus on the basis of aforesaid discussions, no substantial question of law as proposed by learned counsel for the appellant is involved for adjudication of this appeal which requires interference by this Court and accordingly, the appeal fails and is dismissed at the motion stage itself with nocosts. \ sd/- Dhirendra Mishra Judge <9^701/2606