THE HIGH COURT OF SIKKIM : GANGTOK
(Civil Appellate Jurisdiction)
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SINGLE BENCH: THE HON'BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
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R.F.A. No. 08 of 2019
Prem Pradhan,
S/o Late P.K. Pradhan,
R/o Duga, Rangpo,
East Sikkim.
..... Appellant
Versus
Santosh Rai,
S/o Padam Rai,
R/o Daragaon, Turuk-Billing,
Melli, South Sikkim.
.....Respondent
Appeal under Order XLI, Rules 1 and 2 of the Code of
Civil Procedure, 1908.
(Memorandum of appeal against the Judgment and Decree dated 30.03.2019
passed by the Learned District Judge, Special Division-I, Sikkim at Gangtok in
Money Suit No. 22 of 2016 Prem Pradhan vs. Santosh Rai).
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Appearance:
Mr. Sajal Sharma, Ms. Roshni Chettri, Ms. Puja
Kumari Singh Advocates for the Appellant.
Mr. Manish Kumar Jain, Advocate for the Respondent.
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Date of hearing : 24.08.2022 & 31.08.2022
Date of Judgment : 13.09.2022
JUDGMENT
Bhaskar Raj Pradhan, J.
1. The Regular First Appeal (appeal) is directed against
the impugned judgment dated 30.03.2019 passed by the
learned District Judge, Special Division-I, East Sikkim at
Gangtok (learned District Judge) in Money Suit No. 22 of
2016. The appellant also preferred an application under 2 R.F.A. No.08 of 2019 Prem Pradhan vs. Santosh Rai
Order XLI Rule 27 read with Section 151 of the Code of
Civil Procedure, 1973 (CPC) for production of additional
evidence. This court considered this application and vide
judgment dated 31.03.2022 allowed it. Pursuant thereto
additional evidence has been taken and placed before this
court for consideration in the present appeal.
2. The case of the appellant in the plaint was that he is
the owner and operator of Himalayan Hatcheries located in
Duga, Pendam, East Sikkim which deals in the business of
poultry farming. The respondent is a poultry farmer from
Daragaon, Turuk and the appellant's customer. Since 2014
the respondent purchased day old chicks from the
appellant on credit basis for a sum totaling to
Rs.17,60,105/- which liability has been admitted and
accepted in writing by him. On 29.11.2014 they signed an
agreement in the presence of witnesses in which the
respondent accepted the liability, gave the plaintiff four
blank cheques bearing No.489729, 489728, 489727 and
489726 to hold until the amount was fully paid. It was also
agreed that the payment shall be made in installments and
the first by the end of December, 2014. On 30.12.2014 the
appellant called the respondent on phone to remind him to
make the payment as he had failed to make the first
installment. The respondent made up a story of falling in 3 R.F.A. No.08 of 2019 Prem Pradhan vs. Santosh Rai
hard times and sought for further time of few months. Even
after having waited for a few months the respondent failed
to make the payment and in fact avoided receiving calls
from the appellant. On 25.07.2016 the appellant tried to
encash the cheques which were returned due to insufficient
funds. The appellant sent a formal notice on 03.08.2016
requiring the respondent to make the payment. On receipt
the respondent came to the appellant and assured him that
he would pay back the amount within two months.
However, the respondent neglected to make the payment
even thereafter. It was also averred that the appellant had
to take loan as the respondent failed to make payments
and for which he had to take on additional liability to pay
back the loan on interest at 4% per month. It was pleaded
that the cause of action to file the suit first accrued on
31.12.2014 when the respondent failed to make the first
installment towards the payment of liability as per the
agreement. The cause of action then accrued on each and
every date when the appellant requested the respondent to
make the payment of the outstanding amount and then on
03.08.2016 when the appellant sent a legal notice calling
upon him to make the payment. The appellant therefore,
sought a decree of recovery of Rs.17,60,105/- along with
interest @ 4% per month on the principal amount from the 4 R.F.A. No.08 of 2019 Prem Pradhan vs. Santosh Rai
date on which it was due till the end of the suit along with
cost.
3. In the written statement the respondent did not deny
the fact that the appellant was the operator of Himalayan
Hatcheries. The respondent also did not deny the fact that
he is a poultry farmer from Daragaon, Turuk. According to
the respondent he was working as a supplier of the Turuk
Poultry Livestock Cooperative Society (the TPLC Society).
The respondent denied that he had purchased day old
chicks and poultry feed from the appellant on numerous
occasions on credit basis for a sum of Rs.17,60,105/- since
2014. The respondent admitted that he was a customer of
the appellant; he had made transaction with the appellant
for day old chicks and feeds in the year 2013 and made
payments to the appellant for the same in the following
manner:-
(i) Rs.64,000/- in cash on 18.04.2013
(ii) Rs.1 lakh in cash on 10.05.2013
(iii) Rs.2 lakhs in cash on 19.06.2013
(iv) Rs.1 lakh in cash on 26.07.2013
(v) Rs.90,000/- deposited in the UBI account,
Deorali (Gangtok) Branch of the appellant on 14.08.2013
(vi) Rs.1,20,000/- in cash on 24.08.2013 5 R.F.A. No.08 of 2019 Prem Pradhan vs. Santosh Rai
(vii) Rs.3,10,000/- in cash deposited in the UBI, Deorali (Gangtok) Branch of the appellant on 10.09.2013
(viii) Rs.4,43,000/- in cash on 27.09.2013
(ix) A cheque of Rs.2 lakhs of D.A.C.S. Turuk, Daragaon issued in favour of the appellant on 20.12.2013.
4. The respondent further pleaded that since he stopped
buying day old chicks and feed from the appellant in and
around the month of August, 2014, the appellant asked the
respondent to meet him at Rangpo Bazaar and asked him
to settle dues as he was not maintaining his record of
transactions. The respondent told him that he would settle
the dues if any money was owed to him after checking his
records. The appellant requested the respondent to hand
over all documents relating to transactions in the year
2013 which was declined. The appellant got angry and
abused him and threatened him with dire consequences.
5. The respondent took a plea on the agreement that it is
a document executed by the appellant only and he was
asked to sign on it being their supplier and further
requested to issue blank cheques by the appellant as well
as the members of the TPLC Society. The respondent
pleaded that the members of the TPLC Society was of the
impression that they had some outstanding dues towards
the appellant for the transaction made in the year 2013 6 R.F.A. No.08 of 2019 Prem Pradhan vs. Santosh Rai
and that the appellant had failed to show actual credit
amount to them. The respondent denied having received
any calls from the appellant and prayed for dismissal of the
suit.
6. On 07.11.2017 the learned District Judge framed six
issues in the following manner:
(1) Whether the suit is maintainable? (OPP)
(2) Whether during the year 2014 the Defendant had purchased day-old-chicks and poultry feed from the Plaintiff on numerous occasions on credit basis? (OPP)
(3) Whether on account of such purchase the Defendant incurred liability to pay Rs.17,60,105( Rupees Seventeen Lakhs Sixty Thousand One Hundred and Five) only to the plaintiff? (OPP)
(4) Whether vide the Agreement dated 29.11.2014 the Defendant acknowledged the above liability towards the Plaintiff? or, Whether the Defendant was coerced to simply sign on the said Agreement? (OPP)/(OPD)
(5) Whether the Plaintiff is entitled to recover the above amount along with interest thereon? (OPP)
(6) To what other reliefs is the Plaintiff entitled to? (OPP)
7. In the trial the appellant examined himself; Sanjeev
Khati to prove that the respondent had acknowledged that
he owed the appellant a large sum of money of about Rs.17
lakhs and promised to pay 35% of the same within a week
in the first half of 2015; and Neena Pradhan, the
appellant's wife to support and prove his case as pleaded.
8. The appellant exhibited the four cheques as (exhibits-
2, 3, 4 and 5), identified the signatures of the respondent 7 R.F.A. No.08 of 2019 Prem Pradhan vs. Santosh Rai
thereon; the four return memos (exhibits-6, 7, 8, and 9)
indicating that the four cheques were dishonoured; the
office copy of the legal notice issued to the respondent
(exhibit-10); the acknowledgment card indicating receipt of
legal notice by the respondent (exhibit-11) and his evidence
on affidavit as exhibit-12. Although the appellant had
mentioned about the agreement in the plaint as well as in
the evidence on affidavit since he had placed a photocopy of
the same it was not exhibited during the trial.
9. The appellant in his evidence on affidavit reiterated
what he had stated in his plaint. In his evidence on
affidavit besides identifying his signature and that of the
respondent in the agreement, the appellant also identified
the signatures of the witnesses therein. He stated that the
respondent had purchased day old chicks from him since
2014 totaling to Rs.17,60,105/- which fact was
acknowledged and admitted by the respondent by way of
the agreement.
10. During his cross-examination the appellant admitted
that he had not filed any document to prove that he was
the owner of Himalayan Hatcheries; that he had not filed
any books of accounts, documents etc. of Himalayan
Hatcheries; that he had not filed any authorization or
power of attorney to depose on behalf of Himalayan 8 R.F.A. No.08 of 2019 Prem Pradhan vs. Santosh Rai
Hatcheries; that he had not filed any document indicating
the list of customers dealt by him or Himalayan Hatcheries
or that the respondent was his customer; that he had not
filed any document, books of account pertaining to the year
2014 regarding the purchase of day old chicks; that he had
not filed any tax receipts, inward way bills or any other
document to show that he was dealing with the business of
poultry farming during the relevant time; that he had not
made any bank officials as witness; that he had himself
filled the blank cheques and put his name and the amount
thereon; that he has not filed any complaint under the
Negotiable Instruments Act, 1881 although legal notice was
issued by him under Section 138 thereof; that he had not
filed any call records to show that he had reminded the
respondent about the money owned. With regard to the
agreement which was marked document X at that time, the
respondent, during the appellant's cross-examination,
sought to put to him that it pertained to transaction of
TPLC Society which suggestion was denied. On the
suggestion of the respondent, during cross-examination,
the appellant stated that the respondent used to pay some
money and take the goods/day old chicks regularly. The
appellant denied that the respondent had deposited a sum
of Rs.3,10,000/- in his UBI Deorali Account. 9
R.F.A. No.08 of 2019 Prem Pradhan vs. Santosh Rai
11. According to Neena Pradhan she used to help her
husband in his poultry business. She knew that the
respondent was the appellant's regular customer having
seen him in numerous occasions. She stated that the
appellant was the sole owner and operator of Himalayan
Hatcheries dealing in the business of poultry farming and
that the respondent was a poultry farmer from Daragaon,
Turuk and appellant's customer. She also reiterated that
the respondent had purchased day old chicks from the
appellant on credit totaling to Rs.17,60,105/- and that in
spite of numerous calls by the appellant the respondent
failed to make payments. She stated that the appellant had
tried to encash the cheques which were returned due to
insufficiency of funds. She also reiterated that due to the
failure of the respondent to pay back the amount the
appellant was unable to invest into his business and had to
borrow money from the bank, his friends and well wishers
for which he had to pay interest at 4% per month as stated
by the appellant in the plaint as well.
12. During cross-examination Neena Pradhan admitted
that in her evidence on affidavit she had not named the
borrowers, the bank or the name of the well wishers or filed
any documents to show that the appellant had taken loan
at the interest rate of 4% per month.
10
R.F.A. No.08 of 2019 Prem Pradhan vs. Santosh Rai
13. Sanjeev Khati deposed that he knew the appellant
personally and that he had met the respondent once before.
He stated that in the first half of 2015 the appellant and
the respondent had come to his hotel and in his presence
the respondent had acknowledged that he owed the
appellant around Rs.17 lakhs and promise to pay 35% of it
within a week and the rest later.
14. During Sanjeev Khati's cross-examination nothing
material which would affect his oral deposition was
extracted by the respondent.
15. The respondent in his evidence on affidavit took a
stand that the contents of the plaint as well as the
documents filed by the appellant are false, fabricated and
that he was made to execute the alleged false and
fabricated documents on misrepresentation. He further
stated that the appellant had committed fraud upon him
and his family members and forced to sign on the alleged
documents and made to issue cheques which are filed and
relied by the plaintiff. According to the evidence on affidavit
these cheques which were in the custody of the appellant
were given in blank as security and it was not encashed as
he had already paid the entire money to the appellant. The
stand of the respondent in his evidence on affidavit is not 11 R.F.A. No.08 of 2019 Prem Pradhan vs. Santosh Rai
the stand taken by him in his written statement which is
indicated above.
16. The respondent denied having purchased day old
chicks from the appellant in the year 2014 on credit and
stated further that no amount was payable.
17. During cross-examination the respondent admitted
that he can read Nepali and English; that he knew the
appellant personally and had a long standing relation with
him since 2012 ; that he was supplier for TPLC Society
since 2012 up to 2015; that he knew all the members of
TPLC Society from the year 2014 to 2015; that he
personally knew Prakash Rai a member of TPLC Society
between 2012 to 2015; that he had never had any
disagreements with any of the members of TPLC Society;
that he also knew Pradeep Rai the president of TPLC
Society from the year 2012 to 2015 and that he was related
to him. The respondent was confronted with the agreement
(then marked as document X). The respondent admitted
that he had signed on the same and the initial thereon was
his. However, the respondent volunteered to state that the
appellant had not explained the contents thereof. The
respondent also admitted that he had signed the agreement
along with Prakash Rai, Bikash Chettri, Krishna Rai, Issac
Rai, Robin Rai and Pradeep Rai who had all signed on it as 12 R.F.A. No.08 of 2019 Prem Pradhan vs. Santosh Rai
witnesses. The respondent also admitted that they were all
members of TPLC Society from the year 2012 to 2015 as
well as his friends. He admitted that the agreement was
executed and scribed in Turuk. He admitted that the
agreement was shown to him before he put his initials
thereon but volunteered to say that he was forced to sign
on it and also to give the cheques to the appellant. The
respondent also admitted that the cheques as well as the
signatures thereon were his. He also admitted that the
signatures on the back of the cheques were also his. He
admitted that in spite of receiving legal notice he did not
reply to the same. He admitted that the witnesses
mentioned above were present when he had put his initials
on the agreement. He also admitted that he had not filed
any First Information Report or complaint after signing the
agreement or a suit to cancel the agreement. He admitted
that the appellant was not a member of TPLC Society and
all the witnesses in the agreement were residents of Turuk.
18. The respondent did not examine any other witness or
exhibit any document except his evidence on affidavit.
19. The learned District Judge examined the issues
framed by him and delivered his judgment on 30.03.2019
non-suiting the appellant on the ground that he had failed
to prove that during the year 2014 the respondent had 13 R.F.A. No.08 of 2019 Prem Pradhan vs. Santosh Rai
purchased day old chicks and poultry feed from him for
which he was liable to pay an amount of Rs.17,60,105/-.
20. The learned District Judge in answer to the issues
framed held that the suit was not maintainable (issue
no.1); that the appellant had failed to prove that during the
year 2014 the respondent had purchased day old chicks
and poultry feed on credit (issue no.2); and therefore, the
appellant had failed to establish that the respondent had
incurred liability to pay Rs.17,60,105/- (issue no.3);
document X was inadmissible and could not be considered
by the court (issue no.4). In view of the findings arrived at
by the learned District Judge on issues nos. 2, 3 and 4 he
held that the appellant was not entitled to the reliefs
prayed for by him and as such held issue nos. 5 and 6
against the appellant.
21. Mr. Sajal Sharma, learned counsel for the appellant
submitted that unlike a criminal case civil disputes are
decided on preponderance of probabilities. He relied upon a
judgment of the Supreme Court in Dr. N. G. Dastane vs. Mrs.
S. Dastane1 in which it was held:
"24. The normal rule which governs civil proceedings is that a fact can be said to be established if it is proved by a preponderance of probabilities. This is for the reason that under the Evidence Act, Section 3, a fact is said to be proved when the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. The belief regarding
1 (1975) SC 1534 14 R.F.A. No.08 of 2019 Prem Pradhan vs. Santosh Rai
the existence of a fact may thus be founded on a balance of probabilities. A prudent man faced with conflicting probabilities concerning a fact-situation will act on the supposition that the fact exists, if on weighing the various probabilities he finds that the preponderance is in favour of the existence of the particular fact. As a prudent man, so the court applies this test for finding whether a fact in issue can be said to be proved. The first step in this process is to fix the probabilities, the second to weigh them, though the two may often intermingle. The impossible is weeded out at the first stage, the improbable at the second. Within the wide range of probabilities the court has often a difficult choice to make but it is this choice which ultimately determines where the preponderance of probabilities lies. Important issues like those which affect the status of parties demand a closer scrutiny than those like the loan on a promissory note: "the nature and gravity of an issue necessarily determines the manner of attaining reasonable satisfaction of the truth of the issue [ Per Dixon, J. in Wright v. Wright, (1948) 77 CLR 191, 210] "; or as said by Lord Denning, "the degree of probability depends on the subject-matter. In proportion as the offence is grave, so ought the proof to be clear [Blyth v. Blyth, (1966) 1 AER 524, 536] ". But whether the issue is one of cruelty or of a loan on a pronote, the test to apply is whether on a preponderance of probabilities the relevant fact is proved. In civil cases this, normally, is the standard of proof to apply for finding whether the burden of proof is discharged."
22. The learned counsel for the appellant also relied upon
another judgment of the Supreme Court in M. Siddiq (Dead)
Through Legal Representatives (Ram Janmabhumi Temple Case) vs.
Mahant Suresh Das & Anr.2 in which it was held :
"The standard of proof
720. The court in a civil trial applies a standard of proof governed by a preponderance of probabilities. This standard is also described sometimes as a balance of probability or the preponderance of the evidence. Phipson on Evidence formulates the standard succinctly : If therefore, the evidence is such that the court can say "we think it more probable than not", the burden is discharged, but if the probabilities are equal, it is not. [Phipson on Evidence.]In Miller v. Ministerof Pensions [Miller v. Minister of Pensions, (1947) 2 All ER 372] , Lord Denning, J. (as the Master of Rolls then was) defined the doctrine of the
2 (2020) 1 SCC 1 15 R.F.A. No.08 of 2019 Prem Pradhan vs. Santosh Rai
balance or preponderance of probabilities in the following terms : (All ER p. 373 H) "(1) ... It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence, "of course it is possible, but not in the least probable" the case is proved beyond reasonable doubt, but nothing short of that will suffice.
(emphasis supplied)
721. The law recognises that within the standard of preponderance of probabilities, there could be different degrees of probability. This was succinctly summarised by Denning, L.J. in Bater v. Bater [Bater v. Bater, 1951 P 35 (CA)] , where he formulated the principle thus : (p. 37) "... So also in civil cases, the case must be proved by a preponderance of probability, but there may be degrees of probability within that standard. The degree depends on the subject- matter."
(emphasis supplied)
722. The definition of the expression "proved" in Section 3 of the Evidence Act is in the following terms:
"3. ... "Proved".--A fact is said to be proved when, after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists."
723. Proof of a fact depends upon the probability of its existence. The finding of the court must be based on:
723.1. The test of a prudent person, who acts under the supposition that a fact exists.
"723.2. In the context and circumstances of a particular case."
23. Thus the question is whether the appellant has been
able to prove his case on preponderance of probabilities. 16
R.F.A. No.08 of 2019 Prem Pradhan vs. Santosh Rai
24. On examination of the evidence produced by the
appellant and the admission made by the respondent it is
quite clear that the respondent had business dealings with
the appellant in the past and as such they were not
strangers. Quite clearly the appellant's entire case was
based on the agreement which is now exhibited as exhibit-
15. Evidently, the appellant has not filed any other
documentary evidence in support of his claim besides the
agreement (exhibit-15), the four cheques, the four return
memos, the legal notice and the acknowledgment card. The
extensive cross-examination of the appellant by the
respondent also brings out clearly that the appellant had
failed to produce any other business document for the
inspection of the court. The learned District Judge had
concluded that the appellant had not been able to prove his
case also on the ground that he had failed to produce these
documents. Whether these documents exist is a question
which was not answered during trial. The learned District
Judge however, did not consider the agreement (then
marked as document X) as he held that it was inadmissible
and therefore of no legal consequence. The learned District
Judge had come to the conclusion also on the basis of the
fact that none of the signatories of the agreement had been
produced by the appellant.
17
R.F.A. No.08 of 2019 Prem Pradhan vs. Santosh Rai
25. The agreement having now been exhibited it is
important to analyse the further evidence recorded by the
learned District Judge in terms of the judgment passed by
this court dated 31.03.2022. The agreement is scribed in
Nepali with few words in English as well. The substantial
part of the agreement is in Nepali. It states that on
29.11.2014 the respondent, a resident of Turuk, would like
to acknowledge in writing and inform that he owed
Rs.17,60,105/- towards payment of debt due for chicken-
chicks to the appellant. It is further stated that towards
this due he was issuing SBI cheque to the appellant to hold
until he pays the amount to the appellant. It is stated that
if he failed to make the payment then the appellant may
take any legal action for which he would have no problem.
The agreement also mentions the cheque numbers as
489729, 489728, 489727 and 489726. Further in the
agreement the respondent undertakes to pay the entire
amount in four instalments within a period of six months
and that he would pay the first instalment in the year
2014. It is signed by the appellant as well as the
respondent. The appellant asserts that the agreement has
been signed by him as well as by the respondent and that
the agreement is his acknowledgment in writing of the debt.
The respondent admits to having signed the agreement. 18
R.F.A. No.08 of 2019 Prem Pradhan vs. Santosh Rai
Besides their signatures there are signatures of Prakash
Rai, Bikash Chettri, Krishna Rai, Issac Rai, Robin Rai and
Pradeep Rai as witnesses to the agreement. They were not
produced as witnesses however both the appellant as well
as the respondent state that they had signed the agreement
as witnesses thereof.
26. In the additional evidence on affidavit of the appellant
he asserted that the respondent had signed the agreement
in the presence of witnesses and accepted that he owed an
amount of Rs.17,60,105/- to him. He further averred that
in the agreement the respondent had agreed that the
appellant would hold the four blank cheques until the
amount was fully paid by the respondent; that the
agreement was signed by both the parties with the full
understanding and consent; that further the respondent
had assured the appellant that he would pay the amount in
front of the witnesses. He identified his signature thereon,
the signature of the respondent as well as the six
witnesses.
27. During his cross-examination the appellant admitted
that the agreement was an unregistered document and not
prepared on any stamp paper; it was not certified by an
Oath Commissioner or an Advocate; that he had filled his
name and date on the cheques; the he had not filed any 19 R.F.A. No.08 of 2019 Prem Pradhan vs. Santosh Rai
documents, cash memos, acknowledgment receipts,
challans issued in the respondent's name pertaining to the
purchase of the cheques nor any documents relating to
Himalayan Hatcheries; that he could not say for sure
whether the signatures of the witnesses are their correct
and official one (although he volunteered to state that the
witnesses executed the signature in his presence).
28. The respondent in his additional evidence on affidavit
stated that the agreement is a manufactured document and
he was made to sign on it on pressure from the appellant
and his friends. This was the plea which was not taken by
respondent in his written statement. The respondent took a
new plea that the transaction was between the appellant
TPLC Society and the allegation of him not paying
Rs.17,60,105/- is false and that there was no such
transaction between them. He also took a further plea
which was not taken in the written statement that even the
witnesses were made to sign on the agreement without
being made aware about it.
29. In cross-examination the respondent admitted his
signature thereon as well as the signatures of the
witnesses. He admitted the witnesses are not only his co-
villagers but his friends as well and that he knew them
personally and further that they were members of TPLC 20 R.F.A. No.08 of 2019 Prem Pradhan vs. Santosh Rai
Society. He admitted that the witnesses also were literate
and can read and write in Nepali. He admitted that the
agreement was executed by him, the appellant and other
witnesses at Turuk. He also admitted that it takes around
2 hours to go from Duga to Turuk by vehicle; that he was
earlier a supplier for TPLC Society; that he knew how to
read and write in Nepali and understand English at basic
level; that he had business transaction with the appellant
earlier. The respondent admitted that the appellant had not
threatened him or forced him to sign on the agreement or
the cheques. He also admitted that the appellant had not
committed fraud upon his family members. Respondent
admitted that he had no record to show that he had paid
the entire money to the appellant that was owed to him.
During his cross-examination the respondent was asked to
go through the contents of the agreement and he admitted
that the agreement states that he owed the appellant and
amount of Rs.17,60,105/- and if he was unable to pay the
same, the appellant could institute legal proceedings. By an
Order dated 25.07.2022 the learned District Judge
examined the additional evidence and held that there can
be no doubt that the respondent signed on the agreement
which has been categorically admitted by him. It was held
that since that it was admitted that the agreement was 21 R.F.A. No.08 of 2019 Prem Pradhan vs. Santosh Rai
signed by the respondent there would be a presumption
that it was executed by the parties which was but a
rebuttable presumption and the onus lay upon the
respondent to establish it. The learned District Judge
concluded that the agreement is authenticated by the
parties after understanding and agreeing to the contents.
30. The agreement is an agreement as understood in law.
The Indian Contract Act, 1872 provides in Section 2(e) that
every promise and every set of promises, forming the
consideration for each other, is an agreement. In the
agreement the respondent acknowledges his liability and
agrees to pay the amount in four instalments within a
period of six months the first of which could be paid within
December, 2014. The appellant who is also the signatory to
the agreement also accepts that the respondent could pay
the amount as indicated therein. The reciprocal promises
qualify it as an agreement.
31. Mr. Manish Kumar Jain, learned counsel for the
respondent submitted that in terms of Section 68 of the
Indian Evidence Act, 1872 the attesting witnesses were not
produced by the appellant and as such the agreement
cannot be relied upon. Section 68 provides that if a
document is required by law to be attested, it shall not be
used as evidence until one attesting witness at least has 22 R.F.A. No.08 of 2019 Prem Pradhan vs. Santosh Rai
been called for the purpose of proving its execution, if there
be an attesting witness alive, and subject to the process of
court and capable of giving evidence. However, the proviso
indicate that it shall not be necessary to do so if the
document not being a will, which has been registered in
accordance with the provisions of the Indian Registration
Act, 1908 unless its execution by the person by whom it
purports to have been executed is specifically denied. The
Indian Contract Act, 1872 does not indicate that the
agreement is a document required by law to be attested.
This court's view is fortified by the judgment of the Bombay
High Court in Asudamal s/o Laxmandas Sindhi vs. Kisanrao
s/o Wamanrao Dharmale3 in which it was held that in order
to prove an agreement it is not necessary to examine the
attesting witnesses.
32. Mr. Manish Kumar Jain relying upon the judgment of
the Supreme Court in Veena Singh (Dead) Through Legal
Representative vs. District Registrar/Additional collector (F/R) and
Anr.4 submitted that mere signing of an instrument does
not amount to its execution and that execution of a
document does not stand admitted merely because a
person admits to have sign the document. There is no
3 (2003) 4 Mah L.J. 134 4 (2022) 7 SCC 1 23 R.F.A. No.08 of 2019 Prem Pradhan vs. Santosh Rai
doubt that merely signing in instrument does not amount
to its execution.
33. Section 61 of the Indian Evidence Act, 1872 provides
that the contents of document may be proved by primary or
by secondary evidence. Section 62 provides that primary
evidence means the document itself produced for the
inspection of the court. Section 64 provides that the
documents must be proved by primary evidence except in
cases thereafter provided. The appellant has produced the
agreement in its original for the inspection of the court.
Section 59 provides that all facts, except the contents of
documents or electronic records, may be proved by oral
evidence. Section 72 provides that an attested document
not required by law to be attested may be proved as if it
was unattested.
34. The content of the agreement has been proved by the
appellant by way of oral as well documentary evidence. The
appellant had deposed about the contents of the agreement
and also produced the cheques whose numbers match
what has been scribed in the agreement. The fact that the
respondent signed the agreement along with the witnesses
who were his friends from his area is also admitted and
proved. The further fact that the cheques were the
respondents and he had in fact signed them has also been 24 R.F.A. No.08 of 2019 Prem Pradhan vs. Santosh Rai
proved. The plea of the respondent in his written statement
is that the agreement is a document executed by the
appellant only and he was asked to sign on it being their
supplier; that the members of the TPLC Society was of the
impression that they had some outstanding dues towards
the appellant for the transaction made in the year 2013
and that the appellant had failed to show actual credit
amount to them has not been proved by the respondent.
The respondent's further plea that he was requested to
issue blank cheques by the appellant as well as the
members of the TPLC Society has also not been proved. The
oscillating plea of the respondent taken in his evidence on
affidavit sans any pleading cannot be considered. Even if it
was considered no attempt was made by the respondent to
prove what he alleged. On preponderance of probabilities
the appellant has been able to prove the contents of the
agreement. The agreement makes it clear that the
respondent owed an amount of Rs.17,60,105/- for
purchase of day old chicks in the year 2014 from the
appellant which was payable in 4 equal instalments within
6 months from the date of the agreement i.e. 29.11.2014.
The respondent failed to pay the same in spite of notice.
The suit was filed on 20.12.2016 after the cause of action
arose in his favour. The appellant is thus entitled to a 25 R.F.A. No.08 of 2019 Prem Pradhan vs. Santosh Rai
decree for recovery of Rs.17,60,105/- as principal amount
owed by the respondent. Although the appellant took the
plea that he had to take loans and incur interest at the rate
of 4% per month to invest in his business as the
respondent had not paid him his dues, he was not able to
prove it. The appellant is therefore not entitled to interest at
the rate of 4% per month as claimed by him. The appellant
would be entitled to interest at the rate of 10.2% per
annum on the principal sum from the date of the suit till
the date of the decree. Further, the respondent shall also
pay in addition an interest on the principal sum @ of 6%
per annum from the date of the decree till the date of actual
payment. In terms of Section 35 CPC the cost of the
present appeal shall be paid by the respondent to the
appellant. The issues are decided accordingly.
35. The appeal is allowed. The impugned judgment is set
aside. The decree in terms of this judgment shall be drawn
accordingly.
36. A copy of the judgment shall be sent to the Court of
the learned District Judge, Special Division-I, Gangtok,
East Sikkim for compliance.
( Bhaskar Raj Pradhan )
Judge
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