Punjab-Haryana High Court
Kulwinder Singh vs Gurcharan Singh on 19 February, 2025
RSA-2936-2024 (O&M) Page 1 of 6
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
123 RSA-2936-2024 (O&M)
Date of decision: 19.02.2025
Kulwinder Singh ...Appellant(s)
Vs.
Gurcharan Singh ...Respondent(s)
CORAM: HON'BLE MS. JUSTICE NIDHI GUPTA
Present:- Ms. Manmohan Kaur, Advocate for the appellant.
***
NIDHI GUPTA, J.
The defendant is in second appeal against the concurrent
judgments and decrees of the learned Courts below, whereby the suit of
the plaintiff for recovery of Rs.7,44,000/- (Rs. 6 lacs as principal amount +
Rs.1,44,000/- as interest @ 1.5 % p.m.) on the basis of pronote and
receipt dated 22.03.2017, has been decreed by both the courts below.
2. The parties shall hereinafter be referred to as per their status
before the learned trial Court i.e. the appellant is the 'defendant'; and the
respondent is the 'plaintiff'.
3. The brief facts of the case as set out in the plaint are that on
22.03.2017, the defendant took a loan of Rs.6,00,000/- from the plaintiff at
Nihal Singh Wala, District Moga, and got executed a pronote and receipt,
signed the same and got it attested from the witnesses. The defendant
promised to repay the said amount along-with interest @ 1.5% per month.
It is further averred that inspite of repeated requests, reminders and
presentation of pronote and receipt, the defendant did not make any
payment out of principal or the interest. Now the plaintiff is entitled to
recover a sum of Rs.6,00,000/- on account of principal amount and a sum of
Rs.1,44,000/- on account of interest @ 1.5% per month, totalling
Rs.7,44,000/-. It is further averred that the defendant was asked many a
times to pay the said amount, but he has finally refused to pay the same.
Hence, this suit.
4. Upon notice, the appellant/defendant appeared and contested
the suit on various grounds by stating that the plaintiff had concealed the
material facts, the defendant had never borrowed any amount from the
plaintiff; neither he had ever executed the pronote and receipt in question
nor he signed the same; and prayed for dismissal of the suit.
5. No replication was filed by the plaintiff.
6. On the basis of the pleadings of the parties, following issues
were framed vide order dated 20.11.2019:-
1. Whether the plaintiff is entitled to the relief of recovery of
Rs.7,44,000/- on the basis of pronote and receipt dated
22.03.2017, as prayed for?OPP
2. Whether the suit is not maintainable in the present form?
OPD
3. Whether the plaintiff has concealed the true and material
facts from the Court?OPD
4. Whether the suit of the plaintiff is without any cause of
action?OPD
5. Relief.
7. Upon appraisal of the pleadings and the evidence led by the
parties, the ld. trial Court decided issue No. 1 is partly decided in favour of
the plaintiff; issues No.2 to 4 in favour of the plaintiff as the same were not
pressed during arguments by defendant; resultantly decreeing the suit of
the plaintiff vide judgment and decree dated 03.03.2023. The appeal filed
by the defendant was also dismissed by the learned Additional District
Judge, Moga vide judgment and decree dated 30.10.2024. Hence, the
present second appeal.
8. Learned counsel for the appellant/defendant assails the
concurrent judgments and decrees of the learned Courts below by
submitting that the learned Courts below have failed to appreciate that the
appellant had never borrowed the said amount from the
respondent/plaintiff, nor he had executed any pronote and receipt in his
favour. The judgments and decrees of the learned Courts below are based
on conjectures and surmises and are therefore, liable to be set aside. It is
contended that even no passing of consideration has been proved on
record; and therefore, the defendant had successfully rebutted the
presumption under Section 118 of the Negotiable Instruments Act. It is
contended that as the defendant has discharged the onus of showing that
the passing of consideration is doubtful by cross-examining the plaintiff; as
well as the attesting witnesses; and scribe, the said onus of passing
consideration was shifted upon the plaintiff and it was for the plaintiff to
prove that consideration was passed from the plaintiff to defendant in the
presence of attesting witnesses. It is further submitted that defendant is an
uneducated and illiterate man. It is accordingly prayed that the present
appeal be allowed; and impugned judgments and decrees be set aside.
9. No other argument is raised on behalf of the
appellant/defendant.
10. I have heard learned counsel for the appellant/defendant and
perused the case file in great detail.
11. It is the case of the plaintiff in the plaint that defendant had
taken a loan of Rs.6 lacs from the plaintiff in respect of which he had got
executed a pronote and receipt (Ex.P1 and Ex.P2 respectively) dated
22.03.2017. The said pronote and receipt were duly signed by the
defendant and were attested. The said amount was lent by the plaintiff
along with interest @ 1.5% per month.
12. I find no merit in the arguments advanced on behalf of the
defendant as the pronote and receipt in question were duly proved by the
plaintiff by way of extensive cogent evidence. The plaintiff examined
Karamjit Singh PW-1, marginal witness of pronote and receipt who through
his affidavit Ex.PW-1/A, and testimony proved the original pronote (Ex.P1)
and original receipt (Ex.P2) and duly identified his signatures on Ex.P2. The
said pronote and receipt were also proven by the evidence of PW-2 Resham
Singh, scribe of the pronote and receipt, who deposed that the said pronote
and receipt dated 22.03.2017 were scribed by him at the instance of the
defendant himself in favour of the plaintiff. PW-2 also proved the attested
copy of his register Ex.P3 where entry in respect of the said receipt was
made. Even the plaintiff as PW-3 through his affidavit in evidence Ex.PW-3/A
proved the averments made in the plaint.
13. On the other hand, no evidence was led by the appellant to
counter the evidence of the plaintiff and in support of his own contention
that he had never borrowed any amount from the plaintiff nor executed the
pronote and receipt in his favour. It is to be noted that the defendant has
denied his signatures upon the said pronote and receipt. However,
defendant has only made bald averments to this effect, without leading any
evidence to prove the same. Even no handwriting expert was examined by
him to disprove his signatures affixed on the disputed pronote and receipt.
14. It is also to be noticed that it has been noted in the impugned
judgement of the learned trial court that the defendant as "DW-1 and in his
cross-examination he has deposed that "he has seen original vakalatnama
dated 25.09.2019 and written statement dated 21.11.2019, same do not
bear his signatures. He further deposed that he has also seen original
pronote and receipt Ex.P1 and Ex.P2 and it also does not bear his
signatures. He further deposed that he has not moved any application
before any competent authorities against the plaintiff or his witnesses".
Meaning thereby, the demeanor of defendant is untrustworthy and he
cannot be believed upon as he himself is denying his signatures over
vakalatnama dated 25.09.2019 and written statement dated 20.11.2019
filed by him in the Court. Moreso, besides his said bald statement, no cogent
and convincing evidence have been brought on record by the defendant to
rebut the evidence of the plaintiff. Thus, the defendant has failed to prove
the plea taken by him in his written statement."From the above, it is clear
that the appellant is also trying to mislead the Courts.
15. In view of the above unequivocal evidence and situation, the
argument of the defendant that there is no proof of passing the
consideration, is liable to be rejected.
16. The present regular second appeal is hereby dismissed.
17. Pending applications, if any, stand disposed of.
19.02.2025 (NIDHI GUPTA)
Divyanshi JUDGE
Whether speaking/reasoned: Yes/No
Whether reportable: Yes/No
