R.S.A.No.383 of 2009 -1- In the High Court of Punjab and Haryana at Chandigarh R.S.A.No.383 of 2009(O&M) Date of Decision: November 09, 2010 Hari Ram and others ---Petitioners versus Smt. Lalita Devi and another ---Respondents Coram: HONBLE MR. JUSTICE GURDEV SINGH *** Present: Mr.V.S.Bhardwaj, Advocate, for the appellants Mr. Alok Jain, Advocate, for respondent No. 1 *** GURDEV SINGH, J. This is the second appeal preferred by the appellants-plaintiffs against the judgment and decree dated 31.7.2008 passed by Additional District Judge (Ad hoc), Bhiwani, vide which he dismissed the appeal filed by them against the judgment and decree dated 7.9.2006 passed by Civil Judge (Senior Division), Bhiwani, dismissing their suit for the recovery of ` 82,800/-; ` 60,000/- as the principal amount and ` 22,800/- as interest thereon, along with future interest at the rate of 24% per annum. In fact, the suit was filed by Shati Devi and Arti Devi. Santi R.S.A.No.383 of 2009 -2- Devi died during the pendency of the suit and the present appellants were brought on the record as her legal representatives. The plaintiffs averred in the plaint that on 24.3.2001, respondent No. 1 -defendant, Lalita Devi, approached them with the request to advance a sum of ` 60,000/- to her. They accepted her request and advanced that amount and in consideration thereof, she executed pronote and receipt in their favour and agreed to repay the borrowed amount along with interest at the rate of 24% per annum. At that very time, an agreement was executed between them, vide which the defendant agreed to transfer the actual possession of her shop, situated in MC Colony, Bhiwani, in their favour and they were given the right to let out that shop. As per the agreement, the rental income of the shop was to be adjusted towards the interest payable on the borrowed amount. The keys of the shop were handed over to them and an affidavit was duly executed by the defendant, incorporating all the above said terms and conditions, on the same day. The defendant paid the interest up to 23.1.2001 and thereafter failed to pay any such interest. She was requested to give the shop on rent to Ram Chander, which was accordingly done on 11.2.2003. No rent was paid by said Ram Chander. It was found that the shop was not being opened by the tenant daily and thereafter the defendant assured that full payment of the rent would be made but nothing was done. Therefore, they filed suit for recovery of the above said amount. The suit was contested by the defendant. In her written statement she denied the contentions of the plaintiffs and inter alia pleaded that the transaction between her and the plaintiffs was that of the mortgage and not of loan. The possession of the shop was delivered to them for the purpose of execution of the mortgage deed and they were to advance the R.S.A.No.383 of 2009 -3- loan of ` 60,000/- to her. They remained in possession thereof up to February, 2003. They failed to advance the said loan and as such the possession of the shop was taken back. She also pleaded that no such pronote and affidavit were executed by her and those are fabricated documents. In the replication to the written statement, plaintiffs denied the contentions raised therein and reiterated the averments made by them in the plaint. On the pleadings of the parties, trial court framed the following issues:- 1. Whether the plaintiffs are entitled to recovery of ` 60,000/- along with interest as prayed for?OPP 2. Whether the suit of the plaintiff is not maintainable in the present form?OPD 3. Whether the suit of the plaintiffs is time barred?OPD 4. Relief On the basis of the evidence produced by the parties and in view of the arguments advanced by their counsel, learned trial court decided Issue No. 1 against the plaintiffs and other issues in their favour and resultantly dismissed their suit. The plaintiffs preferred the first appeal which was dismissed as aforesaid. I have heard counsel for the plaintiffs. It has been submitted by learned counsel for the plaintiffs that plaintiffs by producing cogent evidence proved before the trial court that the pronote, receipt and affidavit were duly executed by the defendant and as such the advancement of the consideration was to be presumed. Once the R.S.A.No.383 of 2009 -4- execution of the pronote was proved, the court was to presume that the same was executed for consideration. Both the courts below erred in holding that no such consideration passed to the defendant. According to Section 118 of the Negotiable Instruments Act, 1881, the presumption of consideration is to be drawn once the execution of the pronote is proved but that presumption is rebuttable. Both the courts below, after taking into consideration the evidence produced by the parties, came to the correct finding that the said presumption stands rebutted and that no such consideration passed in favour of the defendant. Concurrent findings of fact were recorded by the courts below. No substantial question of law arises in this appeal and the same is dismissed accordingly. (GURDEV SINGH) JUDGE November 09, 2010 PARAMJIT