IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA 200/1998 Reserved on:26.9.2008 Decided on:17.10. 2008 Hukami Ram. …Appellant. Versus Khubi Ram. …Respondent Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. No For the Appellant : Mr. G.D.Verma, Senior Advocate with Mr. B.C. Verma, Advocate. For the Respondents: Mr. B.R.Verma, Advocate. Rajiv Sharma, J. This Regular Second Appeal is directed against the judgment and decree dated 31.12.1997 passed by the learned Additional District Judge, Shimla in civil appeal No. 51-S/13 of 1993. Brief facts necessary for the adjudication of this appeal are that the appellant-plaintiff (hereinafter referred to as ‘the plaintiff’ for convenience sake) filed a suit for recovery of Rs. 11,650/- in the court of learned Sub 1 Whether the reporters of Local Papers may be allowed to see the judgment? No. 2 Judge, 1st Class (1) Shimla. The case set out by the plaintiff was that in the month of May, 1988, the respondent-defendant (hereinafter referred to as ‘the defendant’ for convenience sake) purchased on credit 700 wooden apple packing boxes @ 14.50 paisa per box. He had agreed to pay the price of the wooden boxes by the end of August, 1988. On 12.5.1988, writing to this effect was executed by the defendant in the presence of witnesses. He failed to pay the amount of Rs. 10,150/-. The defendant contested the suit by filing a written statement. He had admitted that he approached the plaintiff for the supply of 700 wooden boxes and the boxes were to be supplied by the plaintiff to him in the month of June and July, 1988. The defendant sold his standing apple crop to a contractor, therefore, he did not require the wooden boxes for packing his apple crop. He informed the plaintiff about this development. The trial court on the basis of the evidence led by the parties dismissed the suit on 30.4.1993. The plaintiff preferred an appeal against the judgment and decree passed by the learned Sub Judge, 1st Class (1) Shimla before the learned Additional District Judge, Shimla. The learned Additional District Judge, Shimla dismissed the appeal on 31.12.1997. The present appeal was admitted on the following substantial questions of law: 1. “Whether the findings of the courts below are vitiated for want of appreciation of exhibit Ex.PW-2/A? 2. Whether in view of the admissions of the respondent regarding execution of exhibit PW-2/A, the appellant is entitled to suit amount? 3. Whether having admitted execution of exhibit PW-2, respondent was required to show that he is not liable to pay the suit amount and he has failed to discharge the onus? 4. Whether the findings of the Courts below are vitiated on account of misreading and mis-appreciation of pleadings, oral and documentary evidence?” 3 Mr. G.D. Verma, Senior Advocate has strenuously argued that the judgments and decrees passed by both the learned courts below are not sustainable in the eyes of law. He then argued that Ex.PW-2/A dated 12.5.1988 was a promissory note and the defendant was bound to honour the same by paying the money to him. He lastly contended that both the courts below have mis-appreciated the oral as well as documentary evidence brought on record. Mr. B.R. Verma, Advocate has supported the judgments and decrees passed by both the courts below. He strongly relied upon section 4 of the Negotiable Instruments Act, 1981 in order to strengthen his submission that Ex.PW-2/A was not a promissory note and to the contrary it was an agreement to sell. I have heard the learned counsel for the parties and perused the record carefully. Since all the questions of law are inter-connected, therefore, the same can be conveniently discussed together. The plaintiff has appeared as PW-1. He has deposed that in the month of May, 1988, the defendant had agreed to purchase 700 wooden boxes @ Rs. 14.50 per box and total cost thereof was Rs. 10,150/-. In his cross-examination, he has testified that he handed over the boxes to the defendant one day prior to the day when the writing Ex.PW-2/A was executed. He has deposed that the village of the defendant was at a distance of 2-3 KMs from his saw-mill. He further deposed that he did not see the defendant carrying the boxes from his saw-mill. PW-2 Jeet Ram has deposed that he wrote Ex.PW-2/A, however, in his cross-examination, he has deposed that the boxes were not handed over to the defendant in his presence nor the defendant lifted the boxes from the saw-mill in his 4 presence. The defendant has appeared as DW-1. He has deposed that on 12.5.1988, he entered into an agreement to purchase the apple boxes from the plaintiff. He sold his apple crop to the contractor, therefore, he did not purchase the boxes. He went to the plaintiff in order to cancel the agreement. He has denied the suggestion that the wooden boxes were supplied to him on 12.5.1988 and he carried the boxes on the same day. DW-2 Gurdyal and DW-3 Gopal have supported the version of defendant. Ex.PW-2/A was signed on 12.5.1988. PW-1 has stated, as noticed above, that he handed over the boxes to defendant on 11.5.1988. If the boxes had been handed over on 11.5.1988, he ought to have obtained the receipt from the defendant. This fact was also required to be mentioned in Ex.PW-2/A. PW-1 has not seen the defendant carrying the boxes from his saw-mill. PW-2 has deposed that the boxes were not handed over to the defendant in his presence nor the defendant lifted boxes from the saw-mill of the plaintiff. DW-1 has deposed that he did not receive the consignment of wooden boxes from the plaintiff since he had sold the orchard to a contractor. In case the plaintiff had handed over the boxes to the defendant as narrated by him, he ought to have seen the defendant carrying the boxes from his saw-mill. It is evident from the close scrutiny of Ex.PW-2/A that it is an agreement to sell and it cannot be termed as a promissory note as argued by Mr. G.D. Verma. What has to be seen before a document can be termed as a promissory note is that it should be a promissory note both in form and in intend. These ingredients are lacking in agreement Ex.PW-2/A. The findings recorded by both the courts below are findings of facts and the same need not be interfered by this Court in the present appeal. 5 In view of the observations made hereinabove, there is no substantial question of law involved in this appeal and the same is dismissed. There shall be no order as to costs. 17.10.2008 (Rajiv Sharma ), J. *awasthi*