RSA No. 2419 of 2009 (O&M) 1 In the High Court for the States of Punjab and Haryana at Chandigarh. Decided on 22.7.2010. Mukand Singh --Appellant vs. Kanta Rani --Respondent CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr.A.K.Khunger,Advocate, for the appellant Rakesh Kumar Jain, J, This appeal is directed against the judgment and decree of both the Courts below, whereby suit filed by the plaintiff for recovery of Rs.3,50,000/- along-with interest @ 12% per annum from the date of advancement of the loan till the date of payment was decreed with future interest @ 6% per annum on the decretal amount till its realization.. Case of the plaintiff is that the defendant had taken cash loan of Rs.3,50,000/- from him on interest @ 2% per month after executing a pronote and receipt. In reply, the respondent denied the execution of pronote and receipt and had rather alleged forgery on the part of the plaintiff. It was RSA No. 2419 of 2009 (O&M) 2 alleged that the plaintiff is involved in money lending business without licence. On the conflicting stand, issues were framed and after taking the evidence oral as well as documentary, both the Courts below have come to the conclusion that the defendant had taken loan from the plaintiff after executing pronote and receipt and is liable to repay the same. Only argument raised by the learned counsel for the appellant is that the plaintiff was not having sufficient money, therefore, was not in a position to lend the same. In this regard, learned First Appellate Court has recorded the following reasons :- “ It is undisputed fact that defendant/appellant had been selling his crop through the commission agency of plaintiff and his father M/S Roshan Lal Manish Kumar and it is further case of the defendant/appellant that plaintiff is running commission agency shop along with his father M/S Waryam Mal Ganeshi Lal. Thus, the plaintiff being partner in two firms, the contention of learned counsel for the defendant/appellant that plaintiff has no source to advance loan cannot be believed as correct. Moreover, capacity of the plaintiff to pay loan amount is not challenged in the written statement wherein defendant has only alleged that he was never in need of suit amount. He had not solemnized any marriage in the family neither constructed house nor plaintiff was in a position to pay this amount. At one stage the defendant/appellant is alleging that the firm of the plaintiff is indulging in money RSA No. 2419 of 2009 (O&M) 3 lending to people on interest without licence and at another stage taking the plea that plaintiff had no capacity to pay the loan are inconsistent pleadings and do not go together especially when the defendant failed to prove to whom the plaintiff had lent the money on interest. The plaintiff being a commission agent, selling crops of the farmers, any loan transaction is done only in furtherance of sale and purchase through the commission agency. The defendant has not disputed in his written statement as well as in his statement before the Court in the form of affidavit Ex.DW1/A that pronote Ex.P-1 and receipt Ex.P-2 bears his thumb impression. Once the defendant has admitted his thumb impressions on a negotiable instrument act the presumption u/s 118 arises and it was rightly held by learned trial Court that the defendant failed to rebut this presumption. Had the father of the plaintiff been using to obtain thumb impressions of the defendant on blank pronote and receipt or any other paper the defendant would have been at liberty to demand the return of the same when he allegedly settled the account with the father of the plaintiff and for their failure to return the document to approach the concerned authorities or Court. This is not done by the defendant/appellant for the reasons best known to him. The learned trial Court while referring 1996 (1) Apex Court Journal,267 (SC) wherein it was observed by the Hon'ble Apex Court that “when the execution is RSA No. 2419 of 2009 (O&M) 4 proved, there is presumption of consideration until the contrary is proved and rightly held that pronote and receipt was executed after passing of consideration of Rs.3,50,000/- by the plaintiff in his individual capacity to the defendant and the defendant thumb marked the same after taking this amount. The loan transaction was also witnessed by PW-1 Gobind Rai and PW-3 Sohan Lal as stated by the plaintiff. The defendant has not examined Gobind Rai in his defence nor attributed any malafide or ill will to him. Thus, pronote and receipt were rightly held as legal and genuine documents by learned trial Court”. I have heard learned counsel for the appellant and am of the view that once execution of pronote (Ex P-1) and receipt (Ex.P2) is not disputed, the defendant cannot raise the plea that the plaintiff was not having money to lend the same to the defendant. In view of the above discussion, I do not find any substantial question of law involved in this appeal and the same is hereby dismissed in limine. No costs. 22.7.2010 (Rakesh Kumar Jain) RR Judge