RSA No.4322 of 2009 (O&M) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.4322 of 2009 (O&M) Date of Decision: 17 th May, 2011 Inderjit Singh ….Appellant Versus Harkishan Singh ….Respondent CORAM: - HON’BLE MR. JUSTICE L. N. MITTAL PRESENT: Mr. Sunil Chadha, Advocate for the appellant. * * * * * L. N. Mittal, J. (Oral) CM No. 13094-C of 2009: For reasons mentioned in the application, delay of 16 days in re-filing the appeal is condoned. Main Appeal: Inderjit Singh-defendant having failed in both the courts below has filed the instant second appeal. Respondent-plaintiff Harkishan Singh filed suit against defendant-appellant for recovery of ` 4,88,000/- alleging that on 05.12.2000, defendant borrowed ` 4,00,000/- from the plaintiff and executed pronote and receipt for the same and agreed to repay the -1- RSA No.4322 of 2009 (O&M) same with interest @ 2% per month. However, the plaintiff has claimed interest @ 1% per month only. Accordingly, the plaintiff sought recovery of ` 4,00,000/- as principal amount and ` 88,000/- as interest till filing of the suit. Defendant inter alia pleaded that pronote and receipt in question were executed under coercion, fraud and undue influence and the same are without consideration. Pronote and receipt have also been altered materially. It was denied that defendant borrowed ` 4,00,000/- from the plaintiff. It was alleged that no consideration was paid to the defendant on 05.12.2000. Pronote and receipt in question were executed to create white money to depict the same to the Embassy of England, because Harjit Singh a relative of the defendant wanted to send his son and daughter abroad. Two other pronotes and receipts were also executed by defendant in favour of two other persons. Various other pleas were also raised. Learned Civil Judge (Senior Division), Moga vide judgment and decree dated 15.11.2007 decreed the plaintiff’s suit for recovery of ` 4,88,000/- along with pendente lite interest @ 1% per month and future interest @ 6% per annum. First appeal preferred by the defendant has been dismissed by learned Additional District Judge, Moga vide judgment and decree dated 08.01.2009. Feeling aggrieved, defendant has preferred the instant second appeal. -2- RSA No.4322 of 2009 (O&M) I have heard learned counsel for the appellant and perused the case file. The plaintiff himself appeared as PW-1 and made his statement of examination-in-chief according to his version, but he did not appear for cross-examination and, therefore, his statement has been excluded from consideration. Plaintiff examined Mohan Singh, PW-2 witness of the pronote and receipt in question and Resham Singh, Deed Writer PW- 3 who scribed the pronote and receipt in question. Both of them supported the plaintiff’s version. Plaintiff’s attorney Daljit Singh PW- 4 has also broadly stated according to plaintiff’s version. On the other hand, no evidence has been led by the defendant. Plaintiff has led sufficient evidence to prove his case. Statements of attesting witness and scribe of the pronote and receipt are sufficient to prove due execution of the pronote and receipt by the defendant and also to prove payment of consideration by the plaintiff to the defendant. In addition to the aforesaid, the defendant in the written statement has admitted the execution of the pronote and receipt in question. Consequently, in view of Section 118 of the Negotiable Instruments Act, 1881, it has to be presumed that the pronote was executed for consideration. The said presumption has not been -3- RSA No.4322 of 2009 (O&M) rebutted by defendant in any manner. Defendant’s version stands completely unsubstantiated. The defendant himself did not dare to enter the witness box and, therefore, strong adverse presumption arises against him. There is also no other evidence led by the defendant to depict that the pronote and receipt were executed by him without consideration. Learned counsel for the appellant emphatically contended that plaintiff himself has not appeared as witness and, therefore adverse presumption arises against the plaintiff. Reliance in support of this contention has been placed on two judgments of Hon’ble Supreme Court in the cases of Iswar Bhai C. Patel alias Bachu Bhai Patel versus Harihar Behera and another, AIR 1999 (Supreme Court), 1341 and Vidhyadhar versus Mankikrao and another, 1999 AIR (Supreme Court), 1441(1). It was also contended that statement of Daljit Singh attorney of the plaintiff cannot be taken to be statement of the plaintiff himself, because Daljit Singh was not present when the pronote and receipt were executed. Reliance has been placed on judgment of Hon’ble Supreme Court in Janki Vashdeo Bhojwani Versus Indusind Bank, 2004(10) J.T., 264 and judgment of this court in Kushalya Devi versus Bhupinder Kumar, 2001(2) RCR (Civil), 226. The aforesaid contentions, although very forceful on first blush, cannot be accepted in the facts and circumstances of the -4- RSA No.4322 of 2009 (O&M) instant case. The plaintiff has led sufficient evidence to prove his case by examining one attesting witness and the scribe of the pronote and receipt in question. Their statements could not be impeached in cross-examination. On the contrary, the aforesaid contention would go against the defendant-appellant because he has not stepped into the witness box nor has led any other evidence and, therefore, adverse presumption arises against him. In addition to it, the onus was on the defendant to prove that pronote and receipt were executed without consideration, but he has failed to discharge the said onus. Thus contentions raised by counsel for the appellant noticed in the preceding paragraph are completely devoid of merit. Learned counsel for the appellant also referred to statement allegedly made by the plaintiff in criminal case. However, said statement is not part of the evidence in the instant case and, therefore, the same cannot be referred to. Moreover, the statement allegedly made by the plaintiff in the criminal case cannot be used as substantive evidence in this case and could be used only to corroborate or contradict the plaintiff. The contention raised by counsel for the appellant, on the basis of the said statement, is thus patently frivolous and meritless. For the reasons aforesaid, it is manifest that the instant second appeal has no merit. Concurrent finding recorded by both the courts below in favour of plaintiff-respondent is fully justified by -5- RSA No.4322 of 2009 (O&M) the unrebutted evidence of the plaintiff and also in view of pleading of appellant himself. The said finding is not shown to be perverse or illegal in any manner nor it is based on misreading or misappreciation of evidence on record. Consequently the said finding does not warrant interference in exercise of second appellate jurisdiction. No question of law, much less substantial question of law, arises for determination in this second appeal. Accordingly the appeal is dismissed in limine. (L. N. MITTAL) JUDGE 17th May, 2011 ‘raj’ -6-