On 14th October 2022, the Supreme Court in a division bench comprising of Justice M.R. Shah and Justice Krishna Murari observed that unless the concurrent findings recorded by the courts are found to be perverse, the same are e not required to be interfered with by the High Court in exercise of powers under Section 100 of CPC. (Kapil Kumar Vs. Raj Kumar)
Facts of the Case:
The appellant instituted the suit against the respondent for recovery of Rs. 1 lakh. It was the case on behalf of the plaintiff that the defendant has borrowed a sum of Rs. 1 lakh from him on 29.06.2007 and has also executed a pro-note in favour of him. The defendant denied the execution of pro-note and took the stand that no loan was taken by the defendant and in fact the transaction was in between the father of the plaintiff and the defendant had paid the whole amount borrowed by him from the father of the plaintiff. Four witnesses were examined by the plaintiff. Whereas, three witnesses were examined by the defendant. On appreciation of evidence, the learned Trial Court believed the execution of pro-note executed by the defendant in favour of the plaintiff and consequently decreed the suit. The appeal filed by the defendant before the learned First Appellate Court came to be dismissed. In the second appeal under Section 100 of Code of Civil Procedure, the High Court has interfered with the concurrent findings recorded by both the courts below on execution of the pro¬note by the defendant in favour of the plaintiff, solely on the ground that attesting witness to the pro--note has not been examined therefore, the content of the pro-note has not been proved and consequently has allowed the second appeal. Aggrieved by the same, the appellant/plaintiff filed the present appeal.
Contentions of the Appellant:
The counsel for the appellant submitted that “when the findings on facts were recorded by both the courts below on execution of pro-¬note by the defendant in favour of the plaintiff which as such were on appreciation of evidence on record, more particularly, the testimony of PW3, the same was not required to be interfered with by the High Court in exercise of powers under Section 100 of CPC. Even the signature on the pro-note of the defendant has been established and proved by the plaintiff by examining handwriting expert – PW2. If the deposition of PW3 is considered as a whole, it is apparent that PW3 – deed writer has specifically stated that when he asked the defendant as to whether he had received the money then the defendant admitted the receipt of money. the execution of pro-¬note and even the content of payment of the consideration mentioned in the pro-¬note has been established and proved by the deposition of the deed writer and the plaintiff.”
Contentions of the Respondent:
The counsel for the respondent submitted that “as held in the Mirza Gorgani Vs. (Firm) Bhola Mal Nihal Chand; AIR 1934 Lahore 293 (2) burden to prove the execution of promissory note is on the plaintiff, even if signatures are admitted and execution of document is denied. Even the plaintiff has to prove the consideration which in the present case plaintiff has failed to prove. In the facts and circumstances of the case presumption under Section 118 of the NI Act shall not be attracted as the execution of pro-note has not been proved. In the case M.S. Narayana Menon alias Mani Vs. State of Kerala and Anr. withholding of relevant evidence adverse inference can be drawn against the person and presumption can be rebutted on the bases of preponderance of probabilities.”
Observations and Judgement of the Court:
The hon’ble court observed that “At the outset it is required to be noted that as such there were concurrent findings of facts recorded by the learned Trial Court as well as the learned First Appellate Court on execution of pro-note by the defendant in favour of the plaintiff. The said findings were on appreciation of entire evidence on record. Therefore, unless the concurrent findings recorded by the courts below were found to be perverse, the same were not required to be interfered with by the High Court in exercise of powers under Section 100 of CPC. From the impugned judgment and order passed by the High Court it appears that as such no specific substantial question of law seems to have been framed by the High Court. The signature of the defendant on the pro-note has been established and proved by the plaintiff by examining the handwriting expert. Moreover, e if the deposition of PW3 as a whole is considered, in the cross-examination it has come out that when the deed writer asked the defendant that he has received the consideration, he has admitted the same. As per the provision of Section 118 of the NI Act there is a presumption of consideration in the negotiable instrument [Section 118(a)]”
The present appeal was allowed and the judgement and order given by the HC in Second Appeal No. 1727 of 2016 was quashed and set aside.
Case: Kapil Kumar Vs. Raj Kumar
Citation: Civil Appeal No. 5854 Of 2022
Bench: Justice M.R. Shah and Justice Krishna Murari
Date: October 14, 2022
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