Hans Raj and Others vs Surinder Singh and Others

Sat Pal, J.—By this judgment, I am disposing of two appeals bearing R.S.A. No. 708 of 1985 and R.S.A. No. 709 of 1985, as the fact and points of law involved in both these cases are identical.

In R.S.A. No. 708 of 1985, appellant Hans Raj is alleged to have taken a loan of Rs. 65,500/- from Surjit Inder Singh (whose L.Rs. are the respondents in this case) after executing two pronotes for sums of Rs. 55,000/- and Rs. 10,500/- and also executing two receipts for the same amounts. In R.S.A. No. 709 of 1985, appellant Risala is alleged to have taken the same amount against pronote of this judgment, the facts of R.S.A. No. 708 of 1985 are being taken. Briefly stated, the facts of the case are that one of the L.Rs. of Surjit Inder Singh filed a suit against the appellant Hans Raj for the recovery of Rs. 85,500/- on the basis of two pronotes and their consequent receipts dated 4th September, 1968 and 5th September, 1968, allegedly executed by the appellant in favour of said Surjit Inder Singh. Since Surjit Inderjit Singh had died, his son filed the said suit seeking a decree in his, favour and in favour of defendants Nos. 2 to 5, who were also L.Rs. of late Surjit Inder Singh. The learned trial Court vide its judgment and decree, dated 31st July, 1982 decreed the suit for recovery of Rs. 85,000/- in favour of the plaintiff and defendants Nos. 2 to 5 against Hans Raj defendant (appellant herein) with costs and with interest to be calculated at the rate of 1% per month from the date of the filing of the suit till the date of the decree and with future interest at the rate of 6% per annum from the date of the decree till the date of realisation. Aggrieved by the judgment passed by the learned trial Court the defendant Hans Raj filed an appeal which was dismissed by the learned District Judge, Jind, vide his judgment, dated 20th October, 1984. The present appeal has been filed against the above mentioned judgment, dated 31st July, 1982 passed by the learned trial Court and the judgment dated 20th October, 1984, passed by the learned first appellate Court.

Mr. Jain learned counsel appearing on behalf of the appellant submitted that the suit of the plaintiff was barred by limitation. He submitted that under Article 36 of the Limitation Act, the limitation for suit for recovery of the amount is three years. He further submitted that in the present case, the pronotes are alleged to have been executed on 4th September, 1968 and 5th September, 1968, and the suit is alleged to have been filed on 20th August, 1971. He further submitted that the learned Presiding Officer of the Court before which the suits were filed was not available till 6th October, 1971 and the person who passed the initial orders dated 28th August, 1971, 30th August 1971 and 1st October, 1971 was only Reader, to the Senior Sub Judge and since the first order passed by the Senior Sub Judge was on 4th October, 1971, the suits would be deemed to have been filed on 4th October, 1971, and as such they were barred by limitation. The learned counsel further submitted that as per orders issued by the then District Judge, Jind, in case the Senior Sub Judge was on leave, the suit was required to be filed before the other Sub Judge available at that station. It may, however, be pointed out here that the alleged orders issued by the then District Judge have not been brought on record. In support of this contention the learned counsel placed reliance on two judgments of the Supreme Court in Sri Amar Chand Inani Vs. The Union of India (UOI), , and Rajender Singh and Others Vs. Santa Singh and Others, . As regards the judgment in Nur Muhammad v. Ghulam and Ors. AIR 1934 L&H 622, which has been relied upon by the learned trial Court, the learned counsel submitted that the ratio of this judgment is not applicable to the facts of the present case.

On merits of the case, the learned counsel submitted that the execution and the consideration of the pronotes Exhibits P-1 to P-7 were not proved on the record. He submitted that as per averments made in the plaint, the consideration was paid by Surjit Inder Singh and the same is the recital in Exhibits P-1 to P-4, but evidence on, record was to the contrary. In this connection, he referred to the statement of P.W. 2 Madan Gopal who had stated, that perhaps Surjit Inder Singh was not present at the time of payment of the consideration. Similarly, PW 3 Pannu Ram, the attesting witness of Exhibits P3 and P4, had stated that Surjit Inder Singh was not present. PW 5 Badlu, in his statement, had stated that the payment of both loans was made in the village through Jagdish Narain. He further submitted that Jagdish Narain was not produced as a witness.

Dealing with the evidence of P.W. 4 who was examined as handwriting expert the learned counsel submitted that the said witness besides being an interested witness was not even a qualified person. He further submitted that the evidence of an handwriting expert is generally of frail character and should not be relied upon. In support of this submission, the learned counsel placed reliance on two judgments of the Supreme Court in Smt. Bhagwan Kaur Vs. Shri Maharaj Krishan Sharma and Others, and Lakshmi Chand Khajuria and Others Vs. Ishroo Devi, .

The learned counsel further submitted that adverse inference should be drawn against the plaintiff for not producing certain material witnesses. He submitted that for instance, Jagdish Narain who was alleged to have made the payment on behalf of Surjit Inder Singh as per the statement of P.W.5 Badlu, was not produced as witness. Similarly, Banwari Lal who was one of the attesting witnesses of Exhibits P.1 and P.2 and who was a scribe with regard to the pronotes Exhibits P.3 and P.4 was not produced. He further submitted that the plaintiff did not produce the accounts of Surjit Inder Singh. In support of these submissions the learned counsel placed reliance on the following judgments :-

1) Devidas and Others Vs. Shrishailappa and Others, ;

2) Gopal Krishnaji Ketkar Vs. Mahomed Haji Latif and Others, ;

3) Enuga Lakshmamma Vs. Vennapuse Chinna Malla Reddy (Dead) by Lrs., , and

4) Sir Mohammed Yusuf and Ors. v. D. and Anr., AIR 1968 Bombay 112;

The learned counsel also pointed out certain discrepancies in the evidence. He submitted that PW Pannu Ram had stated that money was not paid in his presence but signatures and thumb impressions of the appellant were taken in his presence. He further submitted that P.W. 5 Badlu had stated in his evidence that the pronotes Exhibits PI and P-2 were executed at village Khera Khemawati but PW Pannu and PW Madan Gopal had stated to the contrary. The learned counsel submitted that it was correct that u/s 118 of the Negotiable Instruments Act if the recital in the pronote indicated that the further consideration was paid, onus, would be on the borrower to prove that the recital was false and he did not in fact receive any consideration. He submitted that in the facts and circumstances of the present case, presumption u/s 118 of the Negotiable Instruments Act was not available to the plaintiff in the present case and the learned courts below erred in recording the findings on this presumption. He submitted that in the present case the presumption had been fully rebutted by the appellant. In support of his submission, the learned counsel placed reliance on the following judgments :-

1) Sirajuddin v. Mast Champo AIR 1921 L&H 148;

2) Bishambar Das v. Ismail AIR 1933 L&H 1029;

3) Chandan Lal Joura Vs. Amin Chand Mohan Lal and Others, ;

4) Krishna and Co. v. Firm Bhogal Ram Girdhari Lal 1968 CLJ 824.

Learned counsel for the appellants also submitted that the learned Courts below have committed an error in granting pendente lite interest at the rate of 1% per month and future interest at the rate of 6% per annum, from the date of the decree till realisation. He submitted that interest could be granted on principal amount and in the present case, it should have been granted on Rs. 65,500/- and not on Rs. 85,500/-. He also submitted that the learned trial Court was not bound to grant contractual rate of interest as the present case was not of commercial transaction. In support of his submission, the learned counsel placed reliance on a judgment rendered by a Full Bench of Bombay High Court in the case Union Bank of India v. Dal Pat, , 1992 ISJ (Banking), 555 and a judgment rendered by a Division Bench of this Court in the case of Devinder Kumar v. Syndicate Bank and a Single Bench Judgment of this Court in Darbara Singh v. Gurdip Singh.

Dealing with the point of limitation, Mr. Mahajan, learned counsel appearing on behalf of the respondents, submitted that there was only a vague averment in para 3-A of the amended written statement that the suit was barred by limitation. He submitted that no details whatsoever were given in the written statement as to how the suit was barred by limitation. He submitted that both the Courts below had given a clear finding that the suit was within limitation. He also submitted that the pronotes were dated 4th September, 1968 and 5th September, 1968, and the fee was purchased on 27th August, 1971 and the plaint was presented in the Court on 28th August, 1971. He submitted that since the learned Presiding Officer of the Court was not available, the plaint was handed over to the Reader of the Court who had made an endorsement to the effect that the learned Presiding Officer was not available. The suit was thus within limitation.

The learned counsel also submitted that the onus on the issue of limitation was on the defendants but no evidence was led by the defendant on the point that another judge was authorised to entertain the suit in the absence of the learned Presiding Officer of the Court concerned. The learned counsel further submitted that though an application for additional evidence was filed before the learned firsts-appellate Court but even the copy of the order alleged to have been issued by the then District Judge was not filed along with the application. Dealing with the judgment of the Supreme Court in the case of Amar Chand (supra) the learned counsel submitted that in that case the suit was filled before a Court which had no jurisdiction but in the present case the suit was filed before a court which had jurisdiction. As regards the case of Rajendar Singh (supra) which was relied upon by the learned counsel for the appellant, the learned counsel for the respondents submitted that the ratio of that judgment was not applicable to the facts of the present case as in that case, the Hon''ble Supreme Court was concerned about the adverse possession of the defendant for a period over 12 years and it was held that the lis pendente lite contained in Section 52 of the Transfer of Property Act would not arrest the running of the period of limitation during the pendency of the suit.

Dealing with the merits of the case, the learned counsel for the respondents for the respondents submitted that in the present case, the pronotes were executed in favour of S. Surjit Inder Singh who died in the same year i.e. 1968 and the suit was filed by one of the L.Rs. He submitted that before filing the suit, the plaintiff had issued a notice to the defendants (appellants herein) on 24th August, 1971 and in that notice, all the facts of the transaction were duly mentioned. The said notice has been duly mentioned in para 6 of the plaint and the receipt of the said notice had not been denied by the appellants in the written statement. Admittedly, no reply to this notice was given. Thus the appellant had not denied their liability with regard to the pronotes. The learned counsel further submitted that in the written statement, the appellants had pleaded that they had not executed any pronote and the alternative plea taken by them was that in case the pronote bore their signatures, the same might have been obtained on blank papers, at the time when the sale deeds between the parties were executed. He further submitted that the appellant Hans Raj, in his own handwriting, had written on the pronote "Rupees 65,500/- Nakad VasulPae". He further submitted that besides his signatures, on the pronotes, receipt Exhibits P.1 and P.2 contain his thumb impressions also. He also drew my attention to the statements of P.W.2 Madan Gopal. Deed Writer and submitted that this witness had clearly stated that he scribed at the instance of Hans Raj and the contents to the pronote were duly read over to and admitted by Hans Raj He also stated that Hans Raj had himself signed on the revenue stamp that he had received Rs. 65,500/- in cash. Learned counsel further submitted that there was no cross-examination on the point that Hans Raj had himself written in his own hand that he had received Rs. 65,500/- in cash from S. Surjit Inder Singh. He therefore, contended that the execution of the pronote was duly proved. He further submitted that the fact of the execution of the pronote had further been proved by P.W.4 Dewan Singh, handwriting expert. The plea of the appellant that their signatures were obtained on the blank papers at the time when the sale deed between the parties was executed ran contrary to the records as the sale deed not bear the signatures of appellant Hans Raj or Rishala.

As regards consideration, the learned counsel submitted that once the execution of the pronotes was proved, the presumption u/s 118 of the Negotiable Instruments Act is that full consideration was paid. He submitted that though this presumption could have been rebutted by the appellants but they had failed to rebut the same. He also submitted that the pronotes were executed in September, 1968 and the witnesses were examined in 1981 and as such minor discrepancies if any, should be ignored. In support of his submissions the learned counsel placed reliance on a judgment of the Supreme Court in Smt. Rani and Another Vs. Smt. Santa Bala Debnath and Others, .

Learned counsel also submitted that non production of certain witnesses had no bearing on the merits of the case as on the same point some other witnesses who were available were examined by the plaintiff in the trial Court. He submitted that for instance P.W.2 Madan Gopal. Deed writer had fully proved that a sum of Rs. 65,500/- was given to appellant Hans Raj and in his own language, he had written on the pronotes that he had received the said amount. He submitted that PW 5 Badlu Ram had also proved that payment of loan was made to Hans Raj, he submitted that variation of place at which the loan was advanced would not make any adverse inference as the said witness appeared after a lapse of more than 12 years. Regarding non-production of Banwari Lal, he submitted that P.W. 3 Pannu Ram had stated before the trial Court that whereabouts of Banwari Lal were not known. He submitted that even Hans Raj submitted in his evidence that he did not know as to whether Banwari Lal was dead or alive. Regarding non-production of Amrit Kaur, learned counsel submitted that neither the pronotes were executed in her presence nor the consideration was paid before her, and as such she was not the relevant witness. Regarding non-production of the accounts the learned counsel submitted that no notice was issued by the defendants to the plaintiffs for production of the accounts.

As regards the amount of interest, learned counsel submitted that the decision of the Full Bench of the Bombay High Court in the case of Union Bank of India (supra) has already been referred by same High Court to a larger Bench as reported in the case of Sri Niwas Ragvindra Jamlgekar v. Bank of Maharashtra 1995 ISJ 13. Dealing with the case of Revinder Kumar (supra), the learned counsel submitted that in this judgment also, a Division Bench of this High Court has relied on the full decision of the Bombay High Court which has fince been referred to a larger Bench. On this point the learned counsel, however, referred to a recent judgment of the Supreme Court in Bank of Baroda v. Jagan Nath Pigment and Chem and submitted that the pendente lite and future interest u/s 34 C.P.C. was to be calculated on the principal sum inclusive of interest claimed in the plaint. He therefore, contended that pendente lite interest awarded to the plaintiff by the learned trial Court was not excessive and future interest at the rate of 6% per annum was also reasonable.

Lastly the learned counsel for the respondents submitted that in the present case, there were concurrent findings of fact given by the courts below and normally this Hon''ble Court should not interfere with the concurrent findings. He submitted that if conclusions arrived at by the Courts below were possible conclusions, they should not be substituted by this Court in second appeal. In support of this submission, the learned counsel placed reliance on a recent judgment of the Supreme Court in Ramanya Naidu v. Kanniah Naidu JT 20 SC 164.

The rejoinder arguments the learned counsel for the appellant submitted that the judgment of the Supreme Court in the case of Bank of Baroda (supra) was based on the judgment of the Supreme Court in Corporation Bank v. G.S. Gowda and submitted that both these cases were based on the instructions issued by the Reserve Bank of India and as such the ratio of these two judgments was not applicable to the facts of the present case which were not governed by the said instructions.

I have given my thoughtful consideration to the submissions made by the learned counsel for the parties and have perused the record.

As regards the point of limitation raised by the learned counsel for the appellant, I find that there is a bald and vague averment in the written statement filed on behalf of the defendant (appellant herein) that the suit is barred by limitation. No details in support of this averment have been given in the written statement. Admittedly, the pronotes were executed on 4th September, 1968, and 5th September, 1968 and the court fee for filing the suit was purchased by the respondents on 27th August i.e. well within limitation. The suit was presented in the Court concerned on 28th August, 1971. During the course of arguments, learned counsel for the appellant, however, contended that on the date when the suit was presented, no presiding officer was available as the learned Presiding Officer of the Courts had been transferred. After new Presiding Officer took over, the suit was listed for the first time before him on 5th October, 1971, therefore, submitted that the suit would be deemed to have been filed on 5th October, 1971. I, however, do not find any merit in the contention of the learned counsel for the appellant. As stated herein above, the suit was presented in the court concerned on 28th August, 1971 (which is well within limitation) and since no Presiding Officer had been posted on that day, the suit was entertained by the Reader of the Court. A litigant cannot be penalised if the Presiding Officer is not available in the court. The date on which the suit was presented in the Court will have to be taken into account for the purpose of limitation. In view of the above discussion, the contention of the learned counsel for the appellant is rejected. The decision of the Supreme Court in the case of Amar Chand (supra) and Rajiedar Singh case (supra) are of no assistance to the appellant. In the case of Amar Chand Inani (supra), it was held that the court means the proper court. Similarly, in the case of Rajendar Singh (supra) it was held that Us pendence contained in Section 52 of the T.P. Act, would not arrest the running of the period of limitation during the pendency of the suit and this point is not at all relevant to the facts of the present case. Though the learned counsel for the appellant had contended that as per Circular issued by the then District and Sessions Judge the suit was to be filed before the other Presiding Officer who was posted at Jind but no such circular has been proved in evidence led before the learned trial Court.

As regards the contention of the learned counsel for the appellant that the execution and consideration of the pronotes Exhibits P1 to P7 were not proved before the learned trial'' Court. I do not find any merit in this contention, Both the Courts below have given concurrent findings that execution of the aforesaid documents by Hans Raj and Risala were fully proved on the record. Even from the original pronotes, I find that the amounts of the pronotes had been acknowledged by the appellant Hans Raj in his own handwriting. As stated herein above, Hans Raj had written on the pronotes "Rupees 65,500/- Nakad Vasul Pae". Besides, P.W.2 Madan Gopal, Deed Writer had also clearly stated in his evidence that the scribed the pronote at the instance of Hans Raj and the contents of the pronotes were fully read over and admitted by Hans Raj. He also stated that Hans Raj had himself signed on the revenue stamp that he had received Rs. 65,500/- in cash. This witness was not cross-examined by the defendant on this point. Relying on the evidence of this witness and certain other witnesses, both the Courts have given concurrent findings that the pronotes and receipts were executed by the appellant. Learned counsel for the appellant, during the course of arguments, however, tried to point out certain discrepancies by referring to statements of other witnesses but these discrepancies were of minor nature. Even otherwise the High Court in the second appeal cannot reappreciate the evidence. Here reference may be made to a recent judgment of the Supreme Court in Mani Chettiar v. S.P. Arumuga Naicker 199S (Suppl) (1) SCT 152. The relevant portion from this judgment is reproduced herein below :

"We are of the view that the High Court was not justified in reversing the findings of the fact concurrently reached by the lower trial Court and the lower appellate Court. There was no question of law whatsoever before the High Court in the second Appeal. The High Court went into the evidence, reappreciated the same and reversed the findings of the courts below. The High Court exceeded the jurisdiction vested in it u/s 100 Civil Procedure Code."

Reference may also be made to another two recent judgments of the Supreme Court in Keshi Bhai v. Parwati Bhai and in the case of Ramanya Naidu (supra). In view of the facts stated herein above and the law laid down by the Apex Court, the decisions of the Supreme Court in the case of Devi Das (supra), Gopal Krishan Kelkar (supra), Enggalaxnam (supra) and decision of the Bombay High Court in the case Sir Mohammed Yusuf (supra) are of no assistance at all to the appellant.

I do not find any merit in the contention of the learned counsel for the appellant that the presumption u/s 118 of the Negotiable Instruments Act was not available to the plaintiff in the present case. There is a clear recital in the pronotes regarding the receipt of the suit amount by the appellant. As stated herein above, appellant Hans Raj in his own handwriting had written on the pronotes "Rs. 65,500/- Nakad Vasul Pae". One of the witnesses, namely, Madan Gopal, Deed Writer had clearly stated in his statement that he scribed the Pronotes at the instance of Hans Raj and Hans Raj had himself signed on the revenue stamp on the pronote that he had received Rs. 65,500/- in cash. There was no gross-examination by the defendant on this point. Since, the execution of the pronotes has been fully proved, it will have to be presumed that the appellant had received consideration mentioned in the pronotes. The appellants have failed to prove that in fact they had not received any consideration. The view I have taken finds full support from the judgment of the Supreme Court in the case of Rani (supra). This contention is also rejected.

As regards the pendente lite interest it will be relevant to refer to a judgment of the Supreme Court in the case Mahabir Prashad Rungta Vs. Durga Datt, . In this case it was held by the apex Court that interest pendente lite until the date of realisation was within the discretion of the Court. However, in the case of State of Rajasthan Vs. Raghubir Singh and Others, it was held by the Hon''ble Supreme Court that once this discretion has been exercised on sound principle, it should not be interfered with by the higher courts. In the present case, in the pronote itself, rate of interest was specified as 1% per month. It has also been proved on record that the appellants did not pay any amount towards the principal or towards the interest even after the service of the notice. Keeping in'' view these facts, the learned trial Court came to the conclusion that the appellants were liable to pay pendente lite interest at the rate of 1% per month and future interest at the rate of 6% per annum. This finding of fact has been confirmed by the learned first appellate Court, and the learned first appellate have approved reasons given by the learned trial Court for granting said rates of interest. In my opinion, the discretion has been exercised by the Courts below in a fair manner and as such, it does not call for any interference by this Court. However, the pendente lite interest could be . charged on the principle amount and not on the suit amount (which included the amount of interest) in view of the law laid down by a Division Bench of this Court in the case Devinder Kumar (supra). Accordingly, I hold that the respondents shall be entitled to the pendente lite interest at the rate of 1% per month and future interest at the rate of 6% per annum on the principal sum of Rs. 65,500/- and not on Rs. 85,500/-. The rate of future interest at 6% per annum, however, does not call for any interference as this rate is quite reasonable. The decisions of the Supreme Court in the case of Bank of Baroda (supra) and Corporation Bank (supra) relied upon by the learned counsel for the respondent are however not applicable to the present case as the decision in these cases was based on Section 21-A of the Banking Regulations Act, 1949 and instructions issued by the Reserve Bank of India.

In view of the above discussion, both the appeals are dismissed except with regard to the relief granted in respect of the pendente lite interest and future interest as indicated in the foregoing paragraph. The parties are, however, left to bear their own costs.