R.S.A. No.2692 of 2007 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** R.S.A. No.2692 of 2007 Date of Decision:20.10.2008 Gurmail Singh .....Appellant Vs. Om Parkash .....Respondent CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present:- Mr. H.S. Rakhra, Advocate for the appellant. Mr. Rajan Bansal, Advocate for the respondent. **** HARBANS LAL, J. This appeal is directed against the judgment/ decree dated 26.3.2007 passed by the Court of learned District Judge, Bathinda whereby he dismissed the appeal preferred against the judgment/ decree dated 1.11.2006 vide which the learned Civil Judge (Junior Division), Phul had decreed the suit of the plaintiff for the recovery of Rs.4,50,000/- together with interest at the rate of Rs.9% per annum from the date of execution of the pronote and receipt till the filing of the suit and future interest at the rate of Rs.6% per annum from the date of filing of the suit till the realisation of the decretal amount. The cross objections filed by the plaintiff were also dismissed by the learned District Judge, Bathinda vide his above-mentioned judgment/ decree. The genesis of the case is that on 4.6.2002, the defendant borrowed a sum of Rs.4,50,000/- in cash from the plaintiff with the promise to repay the same on demand along with interest at the rate of Rs.2% per mensum. In consideration thereof, he executed a pronote and receipt in favour of the latter in the presence of Sat Pal as well as Inder Singh. R.S.A. No.2692 of 2007 -2- Despite demand and presentation of the original pronote as well as receipt, he did not repay the loan amount. On these allegations, the plaintiff filed the suit for the recovery of Rs.7,74,000/- comprising principal amount Rs.4,50,000/- and interest Rs.3,24,000/-. In his written statement, the defendant inter-alia pleaded that the plaintiff has no locus standi or cause of action to file the suit; that the suit is barred by limitation; that the plaintiff is a money lender without licence. He denied to have borrowed the alleged amount as well as execution of the disputed pronote and receipt in plaintiff's favour. He put forth that the alleged pronote and receipt are forged and fabricated documents having been prepared in connivance with the witnesses who are his own party men. It is further alleged that the plaintiff is doing the business of pesticides and the answering defendant used to purchase the medicines etc., from him and in good faith, the plaintiff used to obtain his signatures on blank paper on the pretext that they have to check the accounts from the Department and he might have converted the same into alleged pronote and receipt. The following issues were framed:- 1. Whether the defendant had borrowed a sum of Rs.4,50,000/- from the plaintiff and defendant executed pronote and receipt dated 4.6.2002 in favour of the plaintiff? OPP 2. If issue No.1 is proved, whether the plaintiff is entitled to recovery along with interest at to what rate? OPP 3. Whether the plaintiff has no locus- standi to file the present suit? OPD 4. Whether the plaintiff is a money lender without obtaining any licence? OPD R.S.A. No.2692 of 2007 -3- 5. Whether there are material alternations in the pronote and receipt? OPD 6. Whether the suit is barred by limitation? OPD 7. Whether the defendant is entitled to special costs U/S 35- A CPC? OPD 8. Relief. After hearing the learned counsel for the parties and examining the evidence on record, the learned trial Court decreed the suit as noticed supra. Feeling aggrieved therewith, the defendant went up in appeal which along with the Cross-objections filed by the plaintiff was dismissed by the learned District Judge, Bathinda vide his judgment/ decree dated 26.3.2007. Being undaunted and dissatisfied therewith, he has preferred this appeal. I have heard learned counsel for the parties, besides perusing the findings returned by both the Courts below with due care and circumspection. Mr. H.S. Rakhra, Advocate appearing on behalf of the appellant argued that the promissory note in dispute is of doubtful authenticity for the reason that the attesting witness thereto is none else but the son and an employee of the plaintiff. Furthermore, the execution of the pronote as well as receipt has not been demonstrated in a legal manner. He further argued that the plaintiff- respondent being an agent of pesticides, the defendant/ appellant used to purchase the pesticides from him and in that course, he used to obtain the signatures of the appellant/ defendant on the pretext to check up their accounts with the Department and by all probabilities, such blank signed papers have been converted into the pronote and receipt in dispute. R.S.A. No.2692 of 2007 -4- To overcome these submissions Mr. Rajan Bansal, Advocate representing the respondent/ plaintiff argued that the execution of the disputed pronote and receipt has been proved by the witnesses and the moment, the plaintiff/ respondent did so, the onus shifted on to the defendant/ appellant in view of the observations rendered by the Apex Court in re: Mallavarapu Kasivisweswara Rao v. Thadikonda Ramulu Firm and Others, 2008(3) Recent Civil Reports (Civil) 336. These contentions merit acceptance for the discussion to follow hereunder. As surfaces in the cross-examination of Inder Singh, PW2, the attesting witness of the disputed pronote, the payment was made first and then the pronote was executed and the currency notes were counted by Gurmail Singh. A glance though his cross-examination with sedulous care would reveal that his credibility with regards to the execution of the disputed pronote and receipt could not be impeached in any manner. Of course, Satpal, PW1 another attesting witness has admitted that Om Parkash (referring to the plaintiff) is his father but he also could not be shattered or shaken in any manner during his cross-examination. It is in his cross- examination that on that very day, his father had withdrawn this amount from the bank. It is in his further cross-examination that the consideration has passed within his view. He has further testified that Gurmail Singh and PW2 Inder Singh had come together. Thus to say the least of it, there is not even an iota of evidence, to disbelieve the execution of the pronote and receipt in dispute by the defendant in favour of the plaintiff. The defendant has come up with the plea in his written statement that the blank signed papers have been made into the disputed pronote and receipt. He failed to establish this fact on the record. A glance through the photostat copy of the R.S.A. No.2692 of 2007 -5- pronote produced at the bar would reveal that the disputed pronote and receipt is in the shape of printed forms. The relevant columns therein have been filled in. The signatures of Gurmail Singh affixed on the revenue stamps on both these documents overlap the surface of these documents as well as the revenue stamps fixed thereon. Thus as is borne out from the evidence, the disputed pronote and receipt were executed by the defendant in favour of the plaintiff. On proof of execution, the onus shifted on to the defendant to prove that these documents were executed without consideration. As ruled in re: Mallavarapu Kasivisweswara Rao's case (supra), “If the defendant fails to discharge proof by showing the non- existence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118(a) of Negotiable Instruments Act, 1881 in his favour.” In the instant case, the defendant- appellant has not discharged this onus that the disputed pronote and receipt are without consideration. Consequently, the contentions raised by Mr. Rakhra being bereft of any merit are turned down. The rate of interest applied by the learned trial Court has not been assailed in any manner. No substantial question of law arises for determination by this Court in this appeal. In consequence of the preceding discussion, this appeal fails and is dismissed. Of course, having regard to the peculiarity of facts and circumstances of the case, the parties are directed to bear their own costs. October 20, 2008 ( HARBANS LAL ) renu JUDGE Whether to be referred to the Reporter? Yes/No R.S.A. No.2692 of 2007 -6-