R.S.A. No. 2922 of 2005 1
IN THE PUNJAB AND HARYANA HIGH COURT AT
CHANDIGARH
R.S.A. No. 2922 of 2005
Date of Decision : 11.5.2009
Chhiatta Singh & others
.......... Appellants
Versus
Mohar Singh
...... Respondent
CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA
Present : Mr. B.S. Sidhu, Advocate
for the appellants.
Mr. Gulshan Sharma, Advocate
for the respondent.
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VINOD K. SHARMA, J. (ORAL)
This regular second appeal is directed against the judgments
and decree dated 29.4.2005, passed by the learned Courts below, dismissing
the suit for recovery filed by the plaintiff / appellants.
The plaintiff brought a suit claiming recovery of an amount of
Rs. 1,47,620/-, on the basis of pronote and receipt. It was the case of the
plaintiff / appellant, that a loan of Rs. 1,21,000/- (Rupees one lac and twenty
one thousand only) with interest @ 2% per month, was given to the
defendant / respondent. The pronote and receipt were executed in proof
thereof.
On notice, the suit was contested, plea was taken, that the
receipt and pronote were outcome of fraud and misrepresentation. No
R.S.A. No. 2922 of 2005 2
transaction of loan had taken place. The case set up by the defendant /
respondent was, that the signatures of the defendant / respondent have been
used by the plaintiff / appellant, which were taken for the purpose of civil
suit, which was pending, and collectively contested.
In support of the case set up, the plaintiff examined PW1
Amarjit Singh Gill, Advocate, who was said to be scribe of the pronote and
receipt as well as one of the attesting witness Sonu, whereas the second
attesting witness Hari Ram was examined by the defendant / respondent to
prove his case.
The learned Courts below recorded a concurrent finding, that
the execution of pronote, receipt and passing of consideration, was not
proved. The witnesses produced by the plaintiff / appellant were not
consistence with regard to the execution of documents and that there were
material contradictions in their statements.
Shri Amarjit Singh Gill, Advocate PW-1, who was the scribe of
the pronote and receipt, categorically admitted, that he had not signed the
document as a scribe.
Whereas PW-1 in his statement stated, that witness signed the
pronote and receipt in presence of the defendant / respondent and that the
consideration amount was said to have been given after the pronote and
receipt were read over and explained.
However, Sonu the attesting witness did not support this
version and stated in cross-examination, that the pronote and receipt had
already been prepared by the time he reached the spot. That DW2-Hari
R.S.A. No. 2922 of 2005 3
Singh, the other attesting witness, did not support the execution of the
pronote and receipt. Rather he supported the case set up by defendant /
respondents.
The learned counsel for the appellant contends that the appeal
raises the following substantial questions of law :-
1. Whether the findings of the learned Courts below
in rejecting the pronote and receipt are perverse
and therefore not sustainable in law ?
2. Whether the learned Courts below were bound to
decree the suit on the failure of the defendant /
respondent to prove fraud and misrepresentation ?
In support of the substantial questions of law, the learned
counsel for the appellant vehemently contends, that due execution of the
pronote was proved by the scribe and one of the attesting witnesses.
It is also the contention of the learned counsel for the appellant,
that even Hari Singh had not disputed his signatures on the pronote, thus,
due execution of the pronote was proved and the presumption was required
to be drawn, that the pronote was executed for consideration.
It was for the defendant/ respondent to prove the case set up by
leading cogent evidence.
The reference was made to the statement made by the defendant
/ respondent in the Court, where he admitted, that he had come to the Court
taking liquor. The contention of the learned counsel for the appellant is, that
the defendant / respondent, could not be trusted. Therefore the finding of the
learned Courts below being perverse and is outcome of misreading of
evidence, are liable to be set aside.
R.S.A. No. 2922 of 2005 4
In support of the contention raised, the learned counsel for the
appellant placed reliance on the judgment of this Court in the case of Hans
Raj & Ors. Vs. Surinder Singh & Ors. 1997(1) Civil Court Cases 407
(P&H), wherein this Court has been pleased to lay down as under :-
“20. I do not find any merit in the contention of the
learned counsel for the appellant that the presumption
under Section 118 of the Negotiable Instruments Act was
not available to the plaintiff in the present case. There is
a clear recital in the pronotes regarding the receipt of
the suit amount by the appellant. As stated herein above,
appellant Hans Raj in his own handwriting had written
on the pronotes “Rs.65,500/- Naked Vasul Pae”. One of
the witnesses, namely, Madan Gopal Deed Writer had
clearly stated in his statement that he scribed the
Pronotes at the instance of Hans Raj and Hans Raj had
himself signed on the revenue stamp on the pronote that
he had received Rs. 65,500/- in cash. There was no
gross-examination by the defendant on this point. Since,
the execution of the pronotes has been fully proved, it
will have to be presumed that the appellant had received
consideration mentioned in the pronotes. The appellants
have failed to prove that in fact they had not received
any consideration. The view I have taken finds full
support from the judgment of the Supreme Court in the
case of Rani (supra). This contention is also rejected.”
On consideration of the matter, I find no force in the contention
raised by the learned counsel for the appellant.
It may be noticed, that in the cross-examination PW-1
categorically admitted, that he had not signed the document as scribe.
R.S.A. No. 2922 of 2005 5
Furthermore the statement of PW-1 was contradicted by the only attesting
witness examined by the plaintiff / appellant i.e. Sonu, who did not support
the passing of the consideration and execution of the document. He stated
that pronote and receipt stood already prepared, when he reached the spot.
He claimed to have simply signed.
These proved facts coupled with the fact that Hari Singh, other
witness did not support the case set up by the plaintiff, rather supported the
case set up by defendant / respondent. No fault, therefore, can be found with
the finding recorded by the learned Courts below.
Even otherwise, this Court in exercise of powers under Section
100 of the Code of Civil Procedure this Court cannot interfere with the
concurrent finding of fact recorded by the learned Courts below, merely
because other view than the one taken by the learned Courts below, is also
possible.
For the reasons stated above, the substantial questions of law
are answered against the appellants.
No merit.
Dismissed.
11.5.2009 ( VINOD K. SHARMA ) 'sp' JUDGE