RSA No.2838 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2838 of 2009 (O&M) Date of decision 10.8.2011. Jagdev Singh ...... Appellant. versus Ajaib Singh ...... Respondent. CORAM : HON'BLE MR. JUSTICE K.C.PURI Present : Mr. Ajay Pal Singh, Advocate for the appellant. Mr. Daljit Singh, Advocate for the respondent. K.C.PURI . J. Challenge in this regular second appeal are the judgment and decree dated 8.5.2009 passed by Ms.Sukhvinder Kaur, learned Additional District Judge, Patiala filed against the judgment and decree dated 9.4.2008 passed by Ms.Anshul Berry, Additional Civil Judge (Senior Division), Nabha vide which the appeal of the defendant/appellant was dismissed. 2. Briefly stated the facts of the case of the plaintiff are that on 16.11.98 defendant took cash loan of Rs.2,40,000/- along with interest @ 1.56% per month from plaintiff and as a security thereof defendant RSA No.2838 of 2009 2 executed pronote and receipt in favour of plaintiff in the presence of marginal witnesses Devinder Kumar and Vikramjit Singh. Defendant further agreed to repay the loan amount with interest up to date on his demand. Plaintiff requested defendant many times to repay the borrowed sum with interest but he did not pay even single penny, hence the suit. 3. On put to notice, defendant appeared and filed written statement denying borrowing any sum of Rs.2,40,000/- and execution of any pronote and receipt by him in favour of plaintiff on 16.11.98. The alleged pronote and receipt are forged and fabricated document and is without consideration. As defendant did not borrow any amount from plaintiff so question of its repayment or any interest does not arise. Plaintiff is not entitled for recovery of any amount from defendant. It is further averred that pronote and receipt in question has material alterations and it is result of forgery and misrepresentation and prepared by plaintiff in connivance with the witnesses. After taking additional objections regarding maintainability, cause of action, locus standi, prayer for dismissal of suit with costs has been made. 4. Plaintiff filed replication, controverted the stand taken by defendant in written statement and reiterated the averments of the plaint. 5. From the pleadings of parties, following issues were framed :- 1. Whether on 16.11.98 the defendant took a cash loan of Rs.2,40,000/- from plaintiff ? OPP 2. Whether the plaintiff is entitled to interest at the rate of 1.56 % per month ? OPP 3. Whether the suit is not maintainable in the present form ? OPD RSA No.2838 of 2009 3 4. Whether the plaintiff has no cause of action to file the present suit ? OPD 5. Whether the pronote and receipt is forged and fabricated document ? OPD 6. Whether the suit is false and frivolous ? OPD 7. Whether the suit has not been filed in accordance with law and the plaint is liable to be rejected u/o 7 Rule 11 CPC? OPD 8. Relief. 6. The parties have led their respective evidence on the aforesaid issues. The trial Court after hearing the learned counsel for the parties and after appraisal of the evidence, decreed the suit of the plaintiff for the recovery of Rs.2,40,000/- along with interest @ 1% per month from the date of pronote and receipt and future interest thereafter @ 6% per annum till realization of the entire decretal amount vide judgment and decree dated 9.4.2008. 7. Feeling dissatisfied with the aforesaid judgment and decree dated 9.4.2008, the defendant preferred Ist appeal before the First Appellate Court, Patiala, who after hearing the learned counsel for the parties vide judgment and decree dated 8.5.2009 dismissed the appeal of the defendant. 8. Still feeling dissatisfied with the aforesaid judgments and decrees passed by the Courts below, the defendant-appellant has preferred the present regular second appeal. 9. The appellant in paragraph No.7 of the grounds of appeal has mentioned that following substantial questions of law have arisen in the present appeal :- RSA No.2838 of 2009 4 (I) Whether both the learned courts below have misread and misconstrued the evidence led by the parties ? (II) Whether the burden to prove the execution of pronote and receipt and passing of the consideration is upon the plaintiff ? (iii) Whether the suit can be decreed only on the basis of the sole witness who has personally known to the plaintiff and further being unreliable ? (iv) Whether the examination -in-chief of the plaintiff can be read into evidence when he deny the execution of the same ? (v) Whether passing of the consideration and execution of alleged pronote and receipt requires cogent evidence particularly when plaintiff refused to identify the defendant to whom he lended the money ? 10. Learned counsel for the appellant has submitted that the plaintiff examined Vikramjit Singh to prove the pronote and receipt besides his own testimony. The said testimony is not sufficient to prove the pronote and receipt. The pronote and receipt are the result of fraud committed by the plaintiff against the defendant/appellant. Both the Courts below have misread and misinterpreted the evidence. The burden to prove the execution of pronote and receipt was upon the plaintiff and plaintiff has failed to discharge the onus on that issue. 11. Counsel for the respondent has supported the judgment of both the Courts below. 12. I have carefully considered the submissions made by both the sides and have gone through the records of the case with their able assistance. RSA No.2838 of 2009 5 13. The only issue involved in the present appeal is whether the plaintiff has been able to prove the execution of pronote and receipt and passing of the consideration. Both the Courts below have given concurrent finding of fact that plaintiff has been able to prove the execution of pronote and receipt and passing the consideration. The defendant has simply denied the execution of the pronote and receipt. The pronote and receipt are thumb marked by the defendant. He could easily disprove the execution of pronote and receipt but he has not chosen to examine the expert. Plaintiff himself appeared as his own witness and also examined the marginal witness of the pronote and receipt. There is nothing on the file to show that both the Courts below have misread and misinterpreted the evidence on the file. The plaintiff has been able to prove the execution of pronote and receipt. There is presumption of Section 118 of the Negotiable Instructions Act that pronote and receipt are for consideration unless contrary is proved. There is nothing on the file to establish that passing of consideration has not been proved in the present case. 14. Learned counsel for the appellant has submitted that plaintiff has failed to identify the defendant in the Court and this fact disproves the execution of pronote and receipt. However, from the perusal of the file, it is revealed that the plaintiff has recognized the defendant at a later stage. So, the finding of fact regarding execution of pronote and receipt cannot be challenged in the regular second appeal. 15. So, in view of the above discussion, the substantial questions of law raised by the learned counsel for the appellant are answered against the appellant. RSA No.2838 of 2009 6 16 Consequently, the appeal is without any merit and the same stands dismissed 17. A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE August 10, 2011 sv