Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5854 OF 2022
KAPIL KUMAR ...APPELLANT(S)
VERSUS
RAJ KUMAR …RESPONDENT(S)
J U D G M E N T
M.R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned
judgment and order dated 05.08.2019 passed by the High
Court of Punjab and Haryana at Chandigarh in Regular
Second Appeal No. 1727 of 2016, by which, the High Court
has allowed the said appeal preferred by the original
defendant and has set aside the judgment and order
passed by the First Appellate Court as well as the Trial
Court decreeing the suit for recovery of Rs. 1,36,550/ the
original plaintiff has preferred the present appeal.
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2. The appellant herein – original plaintiff instituted the suit
against the respondent – original defendant 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 pronote (exhibit
P1) and receipt (exhibit P2) in favour of the plaintiff. The
defendant denied the execution of pronote 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. The learned Trial
Court framed the relevant issues.
2.1 The plaintiff examined four witnesses, namely, PW1 – Kapil
Kumar (plaintiff), PW2 – Yashpal Chand (handwriting and
finger print expert), PW3 – Satish Kumar (deed writer) and
PW4 – Sat Narian (clerk to prove legal notice).
2.2 The defendant examined three witnesses, namely, DW1 –
Dinesh Kumar (clerk cum cashier, SBI to prove the deposit
of amount in bank account), DW2 – Raj Kumar (defendant)
and DW3 – Phool Singh s/o Puran Singh (father of
plaintiff).
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2.3 On appreciation of evidence, the learned Trial Court
believed the execution of pronote 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 pronote by the defendant in favour of the
plaintiff, solely on the ground that attesting witness to the
pronote has not been examined therefore, the content of
the pronote has not been proved and consequently has
allowed the second appeal.
2.4 Feeling aggrieved and dissatisfied with the impugned
judgment and order passed by the High Court the original
plaintiff has preferred the present appeal.
3. Learned counsel appearing on behalf of the appellant –
original plaintiff has vehemently submitted that in the
facts and circumstances of the case the High Court has
erred in upsetting and/or quashing the concurrent
findings recorded by both the courts below on execution of
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the pronote by the defendant in favour of the plaintiff, in
exercise of powers under Section 100 of CPC.
3.1 It is submitted that when the findings on facts were
recorded by both the courts below on execution of pronote
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.
3.2 It is submitted that 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. It is submitted in that view
of the matter and the deposition of PW1 – plaintiff and the
deposition of deed writer – PW3 the execution of pronote
and even the content of payment of the consideration
mentioned in the pronote has been established and
proved. Therefore the High Court has committed a very
serious error in allowing the second appeal and
consequently quashing and setting aside the judgment and
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decree passed by the learned Trial Court confirmed by the
learned First Appellate Court.
3.3 It is further submitted that even the signature on the pro
note of the defendant has been established and proved by
the plaintiff by examining handwriting expert – PW2.
3.4 Making the above submissions and relying upon Section 4
of the Negotiable Instruments Act, 1881 (NI Act) and the
findings recorded by the learned Trial Court as well as the
learned First Appellate Court, it is prayed to allow the
present appeal and restore the judgment and order passed
by the learned Trial Court confirmed by the learned First
Appellate Court.
4. While opposing the present appeal the learned counsel
appearing on behalf of the original defendant has
vehemently submitted that as the plaintiff has failed to
prove the execution of pronote by examining the witness
to the pronote the High Court has rightly quashed and set
aside the decree passed by the learned Trial Court
confirmed by the learned First Appellate Court.
4.1 It is vehemently submitted by the learned counsel
appearing on behalf of the defendant that as held in the
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case of 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.
4.2 It is further submitted that even the plaintiff has to prove
the consideration which in the present case plaintiff has
failed to prove. It is submitted that 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.
4.3 It is submitted that as rightly observed by the High Court
nonexamination of witness to the pronote is fatal to the
case of the plaintiff. It is submitted that as observed and
held by this Court in the case of M.S. Narayana Menon
alias Mani Vs. State of Kerala and Anr.; (2006) 6 SCC
in the case of negotiable instrument in case of
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withholding of relevant evidence adverse inference can be
drawn against the person and presumption can be
rebutted on the bases of preponderance of probabilities.
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4.4 Making the above submissions it is prayed to dismiss the
present appeal.
5. We have heard learned counsel appearing on behalf of the
respective parties at length and have gone through the
judgment and findings recorded by the learned Trial Court
while decreeing the suit confirmed by the learned First
Appellate Court. We have also gone through the impugned
judgment and order passed by the High Court. We have
also reappreciated the entire evidence on record including
the deposition of relevant witnesses examined by both the
sides.
5.1 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 pronote 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. Even the substantial question of law framed by the
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High Court cannot be said to be as such a question of law
much less substantial question of law. 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. However, it
appears that what was considered by the High Court was
whether the plaintiff has proved the execution of pronote
and the receipt by leading cogent evidence. The aforesaid
can be said to be a question of facts and cannot be said to
be a question of law much less substantial question of law.
Therefore, as such the High Court has committed a very
serious error in upsetting the findings of facts recorded by
the learned Trial Court confirmed by the learned First
Appellate Court on execution of pronote by the defendant
in favour of the plaintiff.
6. Even otherwise on merits also the impugned judgment and
order passed by the High Court is unsustainable. The
signature of the defendant on the pronote has been
established and proved by the plaintiff by examining the
handwriting expert – PW2. No contrary evidence has been
led by the defendant to disprove his signature on the pro
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note. Even the execution of pronote has been established
by the plaintiff by examining the deed writer PW3. Now
so far as the consideration mentioned in the pronote is
concerned there may be some minor contradictions in the
depositions of PW1 and PW3. However, at the same time if
the deposition of PW3 as a whole is considered, in the
crossexamination it has come out that when the deed
writer asked the defendant that he has received the
consideration, he has admitted the same.
6.1 In view of the above facts and circumstances of the case
emerging from the evidence on record, nonexamination of
the witness to the pronote cannot be held against the
plaintiff. At this stage it is required to be noted that as per
the provision of Section 118 of the NI Act there is a
presumption of consideration in the negotiable instrument
[Section 118(a)]. It is true that such presumption may be
rebutted. However, no rebuttal evidence is led by the
defendant. Under the circumstances also the High Court
has erred in allowing the second appeal and quashing and
setting aside the decree passed by the learned Trial Court
confirmed by the learned First Appellate Court.
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7. In view of the above and for the reasons stated above the
impugned judgment and order passed by the High Court is
unsustainable both, on law as well as on facts and the
same deserves to be quashed and set aside and the same
is accordingly quashed and set aside. The judgment and
decree passed by the learned Trial Court decreeing the suit
confirmed by the learned First Appellate Court is hereby
restored. The present appeal is accordingly allowed. No
costs.
………………………………….J.
[M.R. SHAH]
NEW DELHI; ………………………………….J.
OCTOBER 14, 2022 [KRISHNA MURARI]
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