JUDGMENT
S.A. Bobde, J.
1. Rule.
2. Mr. Patil, learned Counsel appears and waives service of Rule on behalf of respondent.
3. By consent, Rule made returnable and heard forthwith.
4. By this writ petition, the petitioner challenges the framing of issues and the rejection of his application for recasting issues.
5. The suit is for recovery of an amount equal to a dishonoured cheque said to have been issued by the defendant. The following issues have been framed by the Court :
1. Whether the plaintiff proves to have advanced Rs. 85,000/- to the defendant as hand loan?
2. Whether the plaintiff proves that the defendant had asked a cheque in discharge of the liability to pay the amount of hand loan?
3. Whether the plaintiff proves to be entitled to receive Rs. 50,375/- as amount of interest?
4. What order and decree?
6. The learned Counsel for the petitioner objects to Issue No. 1 on the ground that it casts a burden on the plaintiff which ought to be cast on the defendant. The learned Counsel relies on Section 118 of the Negotiable Instruments Act, 1881, the relevant part of which reads as follows :
“118. Presumptions as to negotiable instruments.– Until the contrary is proved, the following presumptions shall be made :
(a) of consideration : that every negotiable instrument was made or drawn for consideration, and that every such instrument when it has been accepted, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration;”
7. According to the learned Counsel for the petitioner, the phrase “Until the contrary is proved” clearly shows that burden of proving that there was no consideration is cast on the defendant. This submission appears to be correct. It is clearly intended by Section 118(a) of the Negotiable Instruments Act that the section lays down a presumption of consideration “Until the contrary is proved”. Therefore, clearly what is contemplated is that the contrary would have to be proved by the person disputing the existence of the consideration. In the circumstances, though the plaintiff has averred that he advanced a loan of Rs. 85,000/- to the defendant, since the suit is based on a dishonoured negotiable instrument presumption contemplated by Section 118 would apply with full force and in my view the law contemplates that it is the defendant who shall prove the contrary following which the presumption will hold good. In this view of the matter, I am of view that the order dated 3rd October, 2003 rejecting the plaintiff’s application for recasting the issue is liable to be set aside since it constitutes misdirection in law and contains an error of law apparent on the face of the record.
8. The Supreme Court in Bharat barrel and Drum Manufacturing Company v. Amin Chand Pyarelal, , has observed as follows :
“Once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that it is supported by a consideration. Such a presumption is rebuttable. The defendant can prove the non-existence of a consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the non-existence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event, the plaintiff is entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well. In case, where the defendant fails to discharge the initial onus of proof by showing the non-existence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118(a) in his favour.”
9. Rule made absolute in terms of prayer Clause (b), which reads as follows : (b) This Honourable Court be pleased to quash and set aside the Order dated 3rd October, 2002 (Exhibit “E” to this petition) passed by the learned III Joint Civil Judge, Junior Division, Kolhapur, below Exhibit 24 in Special Civil Suit No. 348 of 2000 and the original application (Exhibit “A” to this petition) may kindly be allowed.
10. Writ petition is disposed of in the above terms.
11. There shall be no order as to costs.
12. All Authorities concerned to act on an ordinary cppy of this order duly authenticated as true copy by the Sheristedar of this Court.