JUDGMENT
Usha Mehra, J.
1. The Bank of Baroda, appellant/plaintiff filed a suit for recovery, inter alia, on the grounds that the respondents had obtained the clean bill purchase facility by presenting a cheque dated 26th September, 1972 for Rs. 10,000/- drawn on State Bank of India, Ghaziabad. The cheque on presentation was dishonoured. Besides this clean bill purchase facility, the respondents also availed over draft facility to the tune of Rs. 5,000/- which amounts the respondents failed to repay in spite of notice, hence, the suit.
2. By the impugned judgment the suit was dismissed primarily on the ground that the appellant bank failed to prove that clean bill purchase facility was availed by the respondents. Secondly over-draft facility was without consideration.
3. Aggrieved by this judgment present appeal was preferred. The issue before this court is; whether the appellant bank was required to prove an admitted document Ex.PW-3/1 by virtue of which the respondents admitted their liability. Does an admitted document requires any proof? Secondly pursuance to the over draft facility if the amount was released after the execution of the documents, does it amount to a transaction without consideration?
In order to answer these questions we may have glance to the provision of the Indian Contract Act, 1872 (hereinafter referred to as the Act) and in particular Sections 2(d) and (f) which are reproduced as under:-
2. Interpretation Clause-
(d) When, at the desire of the promiser, the promiseor any other person has done or abstained from doing, or does or abstains from doing or promises to do or to abstain from doing, something, such act or abstinence or promise is called a consideration for the promise;
(f) promises which form the consideration of part of the consideration for each other, are called reciprocal promises;
4. A perusal of the above shows that the consideration for the promise rest on the promise to do something or such act. In this case while executing the document of over-draft facility the promise was made that amount of Rs. 5,000/- shall be paid on the execution of these documents. Therefore, on the execution of these document, the amount of Rs. 5,000/- was paid by the Bank. It will not make the transaction without consideration. In fact pursuance to the agreement Ex.P-3, P-6 and P-7 the amount of Rs. 5,000/- was released in favor of the respondent. The Act nowhere stipulates that amount has actually to pass lands simultaneously on the execution of those documents. It is only when there is a mere mental determination to accept unaccompanied by any external indication that it will constitute transaction without consideration. The consideration should be something which not only the parties regard but the law can also regard as having some value. It must be real and not illusory. In this case pursuance to the execution of the document the amount of Rs. 5,000/- was released. Therefore, the consideration was real and not illusory. Hence on this count the reasoning and the conclusion arrived at by the learned trial court cannot be sustained.
5. So far as the question of clean bill purchase facility is concerned, the learned Trial Court over-looked the fact that the respondents herein in their written statement nowhere denied availing of the said facility from the appellant bank. Denial in para 3 of the written statement is vague. It is to the following effect:-
“3. Para 3 as stated is denied. It is denied that the defendant No. 4 is competent and authorised to negotiate for advance facilities from the plaintiff or for other facilities on behalf of the defendant No. 1 and he is competent to bind other defendants for the payment of any amount.”
6. This is no denial in the eye of law. Rather it amounts admission of having availed the facility by respondent No. 1. There is not an iota of evidence produced by the respondents to prove that no clean bill purchase facility was obtained. Rather in response to notice issued by the appellant bank through their counsel Gagrat & Company, respondents vide their letter dated 3rd February, 1973 Ex.PW-3/1 admitted having received the notice sent by Gagrat & Company regarding the amount due to the bank and admitted that the amounts were due to the bank but showed inability to pay the whole amount in lump-sum. Respondents requested that they be allowed to repay the same in Installment of Rs. 500/- per month and assured that they will go on depositing whatever amount they get and no amount so deposited monthly will be less than Rs. 500/-. Ex.PW-3/1 is a clear admission of the liability on account of the clean bill purchase limit of Rs. 10,000/- as well as overdraft facility of Rs. 5,000/-, liability of the respondents on account of clean bill purchase facility of Rs. 10,000/- and overdraft facility of Rs. 5,000/- has been clearly mentioned in the notice issued by the appellant through their counsel M/s Gagrat & Co. which are Ex.PW-3/2 and PW-3/5 respectively. It is in response to these notices that the respondents vide their reply Ex.PW-3/1 admitted the liability on both these courts. In view of the admission by respondent vide Ex.PW-3/1, there was nothing for the appellant bank to prove by the testimony of any other witness or by producing the accounts nor it was necessary for the bank to prove the encashment of the cheques of Rs. 10,000/- issued in its favor by the respondents. In view of the admission the liability stood admitted.
7. For the reasons stated above we find that the learned trial Court over looked the material facts and the admissions made by respondents. Hence the impugned judgment cannot be sustained. The same is accordingly set aside. The decree as prayed is hereby passed in favor of the appellant and against respondents.