Ram Prakash Sharma vs Khillu Ram
2007 Latest Caselaw 168 Del

JUDGMENT

Swatanter Kumar, J.

1. Aggrieved from the judgment and decree passed by the learned Additional District Judge, Delhi, the appellant has filed the present Regular First Appeal. The appellant (defendant in the suit), had filed an application for leave to defend under the provisions of Order 37 (3) (5) of the Code of Civil Procedure which was disposed of vide order dated 2.2.1999 wherein he was granted conditional leave to defend and was directed to deposit the amount in court within one month. The appellant failed to discharge this condition and filed a Revision in this Court where earlier an order was passed granting interim stay in favor of the appellant. However, the stay was subsequently vacated and the Revision itself was dismissed. In other words, the appellant did not comply with the condition of deposit of the amount, which finally resulted in the passing of the impugned decree.

2. The respondent herein filed a suit under the provisions of Order 37 of the Code of Civil Procedure for recovery of Rs. 1,47,400/- with interest. According to the respondent he had advanced a sum of Rs. 1,10,000/- to the appellant for purchase of a land. The defendant executed a promisory note and receipt on 14.6.1995. In terms of the document executed the amount was repayable with interest @ 12% per annum. Since the appellant failed to repay the amount and interest in respect thereof and a notice having been served by the respondent upon the appellant, the respondent filed a suit for recovery of Rs.1,10,000/- being the principal and Rs. 37,400/- on account of interest. As at the relevant time, the Revision was pending with the High Court, the learned

Trial Court framed the following issues:

1. Whether the Promisory Note, admitted by the defendant, was executed without consideration?

2. Whether the plaintiff is entitled to the amount claimed by him?

3. Relief.

3. While questioning the correctness of the findings recorded by the learned Trial Court on the above issues, the learned Counsel for the appellant while addressing the Court on 11.1.2007 contended that the finding is perverse on the face of it and is not supported by evidence on record. According to the learned Counsel the dismissal of the Revision Petition by the Court being a dismissal in default would be of no consequence and the decree is liable to be set aside. However, we may also note that on 12.1.2007, when the matter was taken up for hearing, the learned Counsel appearing for the appellant had not argued the matter as the main Counsel was not available despite the matter having been passed over.

4. Issue No. 1 as framed by the Court itself shows that the execution of the pronote was admitted, however, the consideration was disputed. According to the respondent he had advanced the sum of Rs. 1,10,000/- to the appellants for the purposes of purchasing a house. Execution of the pronote was admitted by the appellants even under his statement recorded under Order 10 Rule 2 of the Code of Civil Procedure on 1.9.1999 and was consequently exhibited as Ex.DW1/1. Once the document was executed, the learned Trial Court has rightly come to the conclusion that the burden to prove that the same was without consideration was upon the defendants. The defendant failed to discharge the onus. The Sale Deed vide which the appellant purchased the property was exhibit DW1/5. Not only this the respondent who appeared in the witness box as DW1 deposed that he had served a notice Ex. PW1/1 upon the appellants to which making such averments prior to the institution of the suit but the said notice was also not responded to. The factum of receiving the notice was admitted in his statement, however subsequently, the contention raised on behalf of the appellant was that no notice was received by him. The presumption under Section 118 of the Negotiable Instruments Act is in favor of Ex.DW1/1 particularly when the execution of the said pronote was admitted. The appellant failed to raise any plausible or reasonable explanation as to why the said pronote was executed by him if the same was not for the receipt of the consideratioin mentioned therein. The defense that he executed the pronote when the respondent had put a gun on his head is not only impractical but even ex facie unbelievable. Besides this, the appellant had admitted his signatures on Ex.DW1/2 and DW1/3. Then he also admitted the receipt of the notice Ex. DW1/4. The changing stands of the appellant were also noticed by the learned Trial Court and even his demurer was noticed by the Court as under:

THE WITNESS INSTEAD OF ANSWERING OF QUESTIONS IS PASSING COMMENtorY ON THE QUESTIONS AND HE IS SAYING THAT ADVOCATE IS ASKING SILLY QUESTION? SO HE DOES NOT WANT TO ANSWER.

Q: I put it to you that on 14.6.95 your duty came to and end at 7 a.m. in morning and you were in Delhi on that day.

A: I don't have my attendance register, It may be that my duty may have ended at 7 a.m. but I was at Kanpur on 14.6.95. It is wrong to say that I was in Kanpur.

Q: I put it to you that in Mahavir Enclave, Gali No. 4, Palam You are running a Dairy through brother in law Prabhu.

A: It is wrong. Prabhu is my brother in law. He is an agriculturist and runs tractor in the village. Ex. DW1/5 is true copy of sale deed in my favor. It is wrong to say that I am deposing falsely.

5. Another fact which needs to be noticed is that Ex. DW1/1 the pronote, it not only bears the signatures of the appellant but the entire address running into 3 lines have been written by the appellant himself. This pronote is witnessed by two witnesses and as already noticed, the defendant has not led any evidence to rebut this presumption. The statement of the appellant as DW1 if examined in its correct perspective, in fact, supports the case of the respondent. The statement which was recorded under Order 10 reads as under:

I am 11th Standard passed. I am employed at IGIA in the maintenance of the Air Craft. I am in service more than 30 years. I am nephew of plaintiff. He had called me at home. I signed this promissory note at home. I signed the promissory note in good faith at the instance of the plaintiff but did not receive any amount. Again said he had got promissory note signed from me under the threats killing me as he put pistol on my neck, and had also called two more persons with him. Plaintiff had also told me that if I told somebody about the promissory note the consequence would be bad.

6. Even if the version of the plaintiff that he signed the pronote under duress of putting of a pistol on his head is believed to be correct, then also the rest of the statement would show that the two witnesses were present when he had signed the pronote exhibit DW1/1. On the other hand, the plaintiff had also examined Virender Kumar as PW2, who as an attesting witness had tendered his detailed affidavit Ex.DW2/1 in evidence. This witness was cross-examined at great length. All kinds of suggestions were put to this witness but no suggestion was made that in his presence the respondent had put a pistol on the head of the appellant and asked him to sign the pronote. Virender Kumar categorically stated that he knew the appellant for 10 years and was present at the time of execution of the pronote. There is also no explanation on record as to why the appellant did not report the matter to the police if the averments made by him in his statement under Order 10 was true.

7. The contradictory explanations given by the appellant in his statement while appearing as DW1 brings out a new story that the pronote was signed at the behest of the plaintiff on the pretext that he needs it for the income tax purposes. It is surprising that the pronote Ex. DW1/1 is a printed document which carries the expression promisory note and receipt? and other columns as printed columns which were later filled and typed and signed by the appellant. In face of this oral and documentary evidence, we have no hesitation in coming to the conclusion that the appellants had miserably failed to prove his defense.

8. We may also notice here that the learned Trial Court vide its order dated 2.2.1999 had granted conditional leave to defend to the appellant and had directed him to deposit a sum of Rs. 1,47,400/- in Court within one month from the date of the order. This order was assailed in Civil Revision No. 231/1999 by the appellants wherein vide order dated 24.9.1999 the Court had stayed the operation of this condition. However, the revision was dismissed by the High Court on 18.7.2000 and the learned Trial Court had then decided the suit on merits vide judgment and decree dated 9.11.2000. Even the conduct of the appellant during the pendency of the suit and compliance to the orders of the Court would result in denial of any equitable direction in his favor.

9. The plaintiff has proved on record that he is entitled to the sum claimed and the rate of interest as had been written on Ex.DW1/1 and which had rightly been allowed by the learned Trial Court. Thus, on both the issues, we would affirm the findings recorded by the learned Trial court and dismiss the appeal.

10. Consequently, the appeal is dismissed with costs of the appeal.