Delhi High Court
Daulat Ram Malhotra vs Amarjeet Singh on 18 December, 2001
Bench: S Mahajan
JUDGMENT
1. The plaintiff/appellant filed a suit for recovery of
Rs.5,417/- on the allegations that the defendant/respondent
had borrowed a sum of Rs.4,000/- from the plaintiff on 18th
August, 1971 and executed a promissory note and receipt in
consideration of the same. The amount having not been paid
in spite of repeated demands of the plaintiff, the suit was
filed. Defendant contested the suit and besides other pleas
also took a plea that no amount was taken from the plaintiff
by way of loan and that on 18th August, 1971 the defendant
had taken a premises on rent from the plaintiff and since
the plaintiff wanted to charge premium from him, he got a
pronote executed from the defendant. It is stated that
besides charging interest on the amount of the pronote, the
defendant had also been regularly paying rent at the rate of
Rs.60/- p.m. in respect of the premises and the same
allegedly stood paid up to March, 1972. In his replication,
the plaintiff denied the allegations made in the written
statement. On the pleadings of the parties, the Court
framed the following issues:-
1. Whether the pronote in question is not
properly stamped and is inadmissible in
evidence? OPD.
2. Whether the pronote was not presented to
the defendant for payment? If so, the
effect thereof? OPD.
3. Whether the defendant did not borrow
Rs.4,000/- from the plaintiff against the
pronote in question? OPD.
4. Whether the defendant is entitled to
special costs u/s.35A? OPD
5. Relief.
The learned trial Court decided all the issues
against the defendant and decreed the suit with costs in
favor of the plaintiff.
Aggrieved by the judgment and decree passed by the
trial Court, the defendant/respondent filed appeal in the
Court of the Additional District Judge. The learned first
appellate Court decided Issue Nos.3 and 4 against the
plaintiff and reversed the findings of the trial Court on
these issues and consequently the suit was dismissed. Being
aggrieved by the judgment and decree of the first Appellate
Court this second appeal has been filed by the
appellant/plaintiff.
It is contended by learned counsel for the
appellant/plaintiff that the defendant having not denied the
execution of the pronote under Section 118 of the Negotiable
Instruments Act until the contrary is proved, there is a
presumption of consideration. It is, therefore, submitted
by him that the presumption under Section 118 of the Act
that every negotiable instrument was made or drawn for
consideration, and that every such instrument, when it has
been accepted, indorsed, negotiated or transferred, was
accepted, indorsed, negotiated or transferred for
consideration being there, there was no occasion for the
first Appellate Court to hold that consideration had not
passed from the plaintiff to the defendant at the time of
execution of the promissory note. It is also the contention
of learned counsel for the appellant that the learned first
Appellate Court has wrongly dismissed the suit of the
plaintiff as the presumption under Section 118 of the
Negotiable Instruments Act was not rebutted by the
respondent/defendant.
A perusal of the judgment of the First Appellate
Court and the record shows that what is contended by learned
counsel for the appellant is not correct. The first
Appellate Court did consider the question as to whether or
not consideration had passed from the plaintiff to the
defendant at the time of execution of the pronote and after
holding that no consideration had passed and consequently
the suit was dismissed. It is clearly held in the judgment
of the first Appellate Court that the plaintiff was in the
habit of securing promissory notes from his tenants whenever
the premises was let to any tenant. It was done in the case
of one Pritpal Singh and one Sham Sunder Sharma who were let
out the premises by the plaintiff. The learned first
Appellate Court held that the person who had signed as a
witness on the promissory note executed by Pritpal Singh had
clearly stated that the promissory note was obtained by the
plaintiff at the time of letting of the premises. The
learned first Appellate Court also held that the shop in
question was let to the respondent on 18th August, 1971 and
the promissory note and receipt were also got executed on
the same date. The learned first Appellate Court was of the
view that it did not appeal to reason that the plaintiff
would lend a sum of Rs.4,000/- to the respondent on the same
date when the shop was let out to him instead of receiving
advance rent from him. This, according to the learned first
Appellate Court, was inconceivable and could not be
believed. The Court also held that the best person to
depose about payment of consideration was the
plaintiff/appellant and surprisingly he did not care to
enter the witness box and the Court was thus deprived of the
best possible evidence which it could lay its hands upon.
It is further held by the Court that in case the plaintiff
had appeared as a witness, the defendant would have got an
opportunity to cross-examine him and test the veracity of
his version as to whether or not any consideration had
passed at the time of execution of the promissory note. The
learned first Appellate Court has also considered the
evidence of the deed writer who is alleged to have written
the promissory note and has not believed his version. The
person who is the attesting witness to the pronote has been
examined by the defendant and it was categorically stated by
him that no amount whatsoever was borrowed by the defendant
from the plaintiff. On this material on record, the Court
held that a duty was caste on the Court to probe deeper and
further into the transaction with a view to arrive at the
truth and the Court would be failing in its duty in case it
did not go deeper into the question to find whether or not
any consideration had passed from the plaintiff to the
defendant. The Court was, therefore, of the view that no
consideration had passed from the plaintiff to the defendant
and the plaintiff was not entitled to a decree in his
favor.
I have gone through the entire record as well as the
judgment of both the Courts below and, in my opinion, there
is no infirmity in the orders of the first Appellate Court.
First Appellate Court, after appreciating the entire
evidence before it has clearly held that no consideration
had passed from the plaintiff to the defendant. This Court
in second appeal will not like to interfere with these
finding of the fact of the first Appellate Court. There is
nothing wrong in the judgment of the first Appellate Court.
The presumption about consideration having passed has
clearly been rebutted by the defendant and once it is held
that no consideration has passed, the plaintiff, in my
opinion, is not entitled to a decree in his favor. There
is no substantial question of law involved in this appeal.
The appeal is, accordingly, dismissed. However, in
the facts and circumstances of the case, the parties are
left to bear their own costs.
