R.S.A. No.1677 of 2008 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
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R.S.A. No.1677 of 2008
Date of Decision:23.10.2008
Gurjant Singh and another
.....Appellants
Vs.
Som Nath alias Jang Bahadur
.....Respondent
CORAM:- HON'BLE MR. JUSTICE HARBANS LAL
Present:- Mr. Manjit Singh, Advocate for the appellants.
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HARBANS LAL, J.
This second appeal is directed against the judgment/ decree
dated 21.11.2007 passed by the Court of learned District Judge, Bathinda,
whereby she dismissed the appeal preferred against the judgment/ decree
dated 27.1.2007 rendered by the Court of Civil Judge (Senior Division),
Bathinda whereby he decreed the suit of the plaintiff for the recovery of
Rs.1,78,350/- with costs together with pendente-lite interest at the rate of
12% per annum and future interest at the rate of 6% per annum on the
principal amount of Rs.1,23,000/- till actual realisation.
The facts which led to the filing of the suit are that Harbans
Singh, father of both the defendants borrowed a cash loan of Rs.1,23,000/-
from the plaintiff for domestic needs by executing a pronote and receipt
dated 1.4.2001 in favour of the plaintiff. He had agreed to repay the same
along with interest at the rate of 2% per month. He expired leaving behind
the defendants as his legal heirs. His property has been inherited by these
defendants. Mutation No.10414 qua his alleged inheritance has been
sanctioned in their favour. The plaintiff requested Harbans Singh during his
R.S.A. No.1677 of 2008 -2-
life time to repay the above-mentioned amount along with interest. After
his death, similar requests were made to the defendants to make the payment
of the aforesaid amount together with interest, but of no avail. On 7.1.2003,
the plaintiff got served a legal registered notice calling upon the defendants
to repay the amount in question, but in vain. On these allegations, this suit
has been filed for the recovery of Rs.1,78,350/- comprising principal
amount Rs.1,23,000/- and interest Rs.55,350/- at the rate of 2% per month
calculated upto 15.2.2003. In their written statement, the defendants denied
obtaining of any loan from the plaintiff by their father Harbans Singh, since
deceased. It has been alleged that there was no legal necessity for their
father to borrow the loan amount and that the alleged pronote and receipt
are forged and fabricated documents. It is further alleged that Harbans
Singh never disclosed to the defendants regarding borrowing of loan
amount by him from the plaintiff. That he was a patient of high blood
pressure, tension and was not in a disposing state of mind and ultimately
expired on 8.5.2001. Lastly, it has been prayed that the suit may be
dismissed with costs. The following issues were framed:-
1. Whether for due consideration the defendant executed
pronote and receipt in favour of plaintiff on 1.4.2001?
OPP
2. Whether plaintiff is entitled to recover the amount
claimed? OPP
3. Whether plaintiff is entitled to interest. If so at what
rate? OPP
4. Whether suit is not maintainable in the present form?
OPD
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5. Whether plaintiff has got no cause of action against the
defendant? OPD
6. Whether suit of the plaintiff is based on forged and
fabricated documents? OPD
7. 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 also met failure as noticed at the outset. Being undaunted and
dissatisfied therewith, they have preferred this appeal.
I have heard learned counsel for the defendants- appellants,
besides perusing the findings returned by both the Courts below with due
care and circumspection.
Mr. Manjit Singh, Advocate on behalf of the appellants
canvassed at the bar that Harbans Singh, father of the defendants- appellants
was about 80 years of age at the time of alleged loan amount and execution
of the pronote and receipt and he had no legal necessity to borrow such a
huge amount when he was in the evening of his life and furthermore, the
plaintiff/ respondent has failed to prove the source from which he had
arranged the alleged amount for being paid to Harbans Singh- deceased and
in these premises, both the Courts below were not justified in accepting the
claim of the plaintiff. These contentions merit rejection for the discussion
to follow hereunder.
Bogha Singh, Ex. Sarpanch PW.1 by tendering his affidavit
Ex.PW1/A had solemnly affirmed that on 1.4.2001 Harbans Singh, father of
the defendants had borrowed a sum of Rs.1,23,000/- in cash from the
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plaintiff in his presence and the marginal witnesses Ami`r Chand, Bhana
Mal and Gurmit Singh with the promise to repay the same together with
interest at the rate of 2% per month and that the pronote is Ex.P.1 and the
receipt is Ex.P.2. Amar Chand, PW2 by tendering his affidavit PW2/A has
also proved the execution of the disputed pronote/ receipt as well as passing
of the consideration. As is borne out from the findings returned by both the
Courts below, the credibility of the statements of these witnesses could not
be impeached in any manner. On appraising their evidence, it is well
established that the disputed pronote and receipt were executed by Harbans
Singh, deceased in favour of the plaintiff for consideration. Section 118-(a)
of the Negotiable Instruments Act, 1881 contemplates that if execution of
the promissory note is proved by the plaintiff, the onus shifts on to the
defendant to demonstrate that the same were executed without
consideration. Here in this case, the presumption arising under this Section
has gone unrebutted. On careful delving into the concurrent findings
returned by both the Courts below, it transpires that the same do not suffer
from any infirmity and are not liable to be disturbed. This apart, no
substantial question of law arises for determination by this Court in this
appeal. Sequelly, this appeal is dismissed.
October 23, 2008 ( HARBANS LAL ) renu JUDGE