R.S.A. No.2328 of 2006 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** R.S.A. No.2328 of 2006 Date of Decision:30.10.2008 Diwan Singh and others .....Appellants Vs. Gurdial Singh .....Respondent CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present:- Mr. Vinod Khunger, Advocate for the appellants. Mr. O.P. Kamboj, Advocate for the respondent. **** HARBANS LAL, J. This appeal is directed against the judgment/ decree dated 4.1.2006 passed by the Court of learned District Judge, Ferozepur, whereby he dismissed the appeal filed against the judgment/ decree dated 11.6.2005 rendered by the Court of learned Civil Judge (Junior Division), Ferozepur decreeing the suit of the plaintiff for the recovery of Rs.34,000/- as principal amount against defendant No.2 and legal representatives of Khan Bahadur to the extent of what they have inherited from the estate of Khan Bahadur along with interest at the rate of Rs.12% per annum from the date of execution of the pronote till the date of decision and future interest at the rate of Rs.6% per annum from the date of decree till the date of actual realisation. The facts are these: On 8.6.1995, the deceased – defendant Khan Bahadur as well as Diwan Singh- defendant approached the plaintiff for a loan of Rs.34,000/- for some domestic needs. On receipt of this cash amount, Khan Bahadur as well as Diwan Singh executed a pronote and receipt on the same day in favour of the plaintiff. They promised to repay R.S.A. No.2328 of 2006 -2- the same on demand together with interest at the rate of Rs.2% per month from the date of advancement till realisation of the said amount. The plaintiff approached the defendants from time to time and requested them to repay the above-mentioned amount, but in vain. On these allegations, the suit has been filed for the recovery of Rs.58,480/- comprising principal amount Rs.34,000/- as well as interest Rs.24,480/- at the rate of 2% per month with effect from 8.6.1995 till 7.6.1998 along with pendente lite and future interest. The defendants in their joint written statement, inter-alia pleaded that the name of defendant No.1 is Khan Singh and not Khan Bahadur. As alleged, Khan Singh had entered into an agreement with Iqbal Singh, son of the plaintiff Gurdial Singh to sell his land measuring 7 kanal 6 marlas on 12.6.1992 for Rs.52,000/-. This land belonged to the Central Government and was in possession of Khan Bahadur- defendant No.1 and he had applied to the Government for transfer of the same on the basis of possession. As agreed upon, he was to execute the sale deed after one month of the issuance of the sale certificate in his favour by the Central Government. A separate pronote was got executed from Khan Singh and his brother Diwan Singh as a security for due performance of the agreement. The agreement as well as the pronote were executed on the same day, i.e., 12.6.1992. The plaintiff and his son Iqbal Singh played fraud with the defendants and got khasra girdawari entered in their name of the land measuring 7 kanla 6 marlas situated at Village Masteka, District Ferozepur for which agreement to sell was executed. That the present pronote is without consideration. Lastly, it has been prayed that the suit may be dismissed. The following issues were framed: 1. Whether the plaintiff is entitled to recover Rs.58480/- i.e. R.S.A. No.2328 of 2006 -3- Rs.34000/- as principal amount plus Rs.24480/- on account of interest @ 2% per month w.e.f. 8.6.95 to 7.6.98? OPP 2. Whether on the above said amount, the plaintiff is entitled to pendentelite and future interest, if yes, then at what rate? OPP 3. Whether the suit of the plaintiff is false and frivolous to the knowledge of the plaintiff? OPD 4. Whether the pronote in question is without consideration and as such, the present suit is not maintainable? OPD 5. Whether the name of defendant No.1 is Khan Singh and not Khan Bahadur as mentioned in the plaint and as such, the suit is not maintainable? OPD 6. Relief. After hearing the learned counsel for the parties and examining the evidence on record, the learned trial Court decreed the suit as noticed at the outset. Feeling aggrieved therewith, the defendants went up in appeal, which was also dismissed by the First Appellate Court. Being undaunted and dissatisfied therewith, they have preferred this appeal. I have heard the learned counsel for the parties, besides perusing the findings returned by both the Courts below with due care and circumspection. The following substantial question of law was formulated on 10.8.2007:- “Whether any agreement to sell was executed between the parties on 12.6.1992 as set up by the defendant/ appellant in R.S.A. No.2328 of 2006 -4- their written statement and further the pronote and receipt dated 8.6.1995 were executed as security, what is the effect of these documents on the merits of the case.” Mr. Vinod Khunger, Advocate appearing on behalf of the appellant urged with great eloquence that as is borne out from the record, Iqbal Singh son of the respondent- plaintiff was a witness to all the three documents, i.e., the agreement to sell dated 12.6.1992 (Mark `A'), the pronote dated 12.6.1992 (Mark `B') and the pronote dated 8.6.1995 Ex.P.1 and he has been withheld for the reasons best known to the respondent- palintiff and this lacuna in isolation of other evidence is enough to presume that the disputed pronote and receipt were executed in lieu of the earlier pronote dated 12.6.1992 for security purposes, but without consideration. To tide over these submissions, Mr. O.P. Kamboj representing the respondent- plaintiff argued that a meticulous perusal of the findings returned by both the Courts below would reveal that the same are based on positive evidence and that being so, no holes can be picked therein. I have well considered the rival contentions. For a little while, if it is assumed that the disputed pronote was executed in lieu of the earlier pronote though it is not so, nonetheless it can be deemed to have been executed for real consideration. There is no evidence to the effect that this pronote was executed as a collateral security. It is further argued on behalf of the appellants that the appellants- defendants had moved an application for production of the agreement and pronote dated 12.6.1992 from the possession of Iqbal Singh and the same was allowed by the Court of Civil Judge, Ferozepur vide order dated 8.6.2002 with a direction to Iqbal Singh to produce the sale agreement dated 12.6.1992, despite that this agreement R.S.A. No.2328 of 2006 -5- was not produced and sequelly, an adverse inference ought to have been drawn against the respondent- plaintiff. I regret my inability to be one with the learned counsel for the appellants for the reason that the attention of this Court has not been drawn towards the reasons for which Iqbal Singh could not produce the alleged agreement. It is also argued on behalf of the appellants that the appellants- defendants had moved an application seeking permission to prove the above-mentioned sale agreement as well as pronote dated 12.6.1992 by leading secondary evidence but the same was dismissed and as its consequence, grave injustice has been occasioned to the appellants- defendants. I am unable to agree with this submission. If the trial Court had declined to prove the above-mentioned documents by leading secondary evidence, the defendants- appellants should have preferred a revision there against. Their silence on this aspect gives rise to the presumption that they were well satisfied with the order dated 2.4.2004. Much capital has been sought to be made out of Mark `A' as well as Mark `B' which to the utter dismay of the appellants- defendants cannot be looked into, for their having not been proved in a manner as provided by law. There being no legal evidence in proof of these documents, it would be going too far to make the same as basis for any finding. The credibility of PW2 Major Singh, marginal witness, PW3 Ashok Chugh, the scribe of the disputed pronote Ex.P.1 and receipt Ex.P.2 could not be impeached in any manner,when their examination-in-chief was tested by their cross-examination. In other words, they withstood their cross-examination successfully. On appraising the evidence, it transpires that pronote as well as receipt in dispute were executed by the defendants in favour of the plaintiff. Thus the plaintiff has discharged the onus qua R.S.A. No.2328 of 2006 -6- execution of these documents. Section 118(a) of the Negotiable Instruments Act, 1881 raises a presumption of there being consideration, if the execution of the promissory note is proved. Of course, every presumption is rebuttable. In the instant case, such presumption has gone unrebutted. More to the point, no substantial question of law arises for determination by this Court in this appeal. As a sequel of the above discussion, this appeal fails and is dismissed. Of course, having regard to the facts and circumstances of the case, the parties are directed to bear their own costs. October 30, 2008 ( HARBANS LAL ) renu JUDGE