Harbans Singh vs Firm Sunder Mal Sat Pal

N.K. Kapoor, J.—This is defendant''s appeal against the judgment and decree dated April 27, 1979 whereby suit of the plaintiff for recovery of Rs. 27,000/- has been decreed.

The plaintiff filed a suit for recovery of Rs. 33500/- on the basis of pronote and receipt dated 4.2.1975. According to the plaintiff, defendant agreed to pay interest at the rate of 1.56% per mensum. It was further agreed that the defendant would repay the loan amount along with interest on demand. According to plaintiff, defendant had dealings with the plaintiff firm and had been receiving certain amount on credit as and when required by him. It is on 19.4.1977 that the defendant settled accounts with the plaintiff firm and admitted his liability to pay a sum of Rs. 27,000/- which included interest of Rs. 7000/- to the plaintiff firm.

The defendant contested the suit taking up various pleas like plaintiff firm carrying on business of money lending but having not been registered under the Indian Partnership Act and the suit being not within limitation. On merit, it was denied that the defendant executed a pronote on 4.2.1975 as alleged by the plaintiff.

On the pleadings of parties, following issues were framed :-

Whether the defendant executed the pronotes dated 4.2.1975 and 19.4.1977 in favour of the plaintiff firm? OPP.

Whether the defendant took the amounts mentioned in para No.4 of the plaint on credit from the plaintiff firm? OPP

If issue No.1 is proved, whether the execution of both the pronotes or either of them is without consideration? OPD

Whether the plaintiff firm is duly registered under the Indian Partnership Act and Shri Chet Ram is one of the partners? OPP

Whether the plaintiff firm is a money lender? If so, its effect? OPD

Whether the plaintiff is entitled to interest ? If so, at what rate and to what amount? OPP

Whether the suit is within limitation? OPD.

Relief.

Primarily the contest revolved around determining as to whether pronote and receipts were executed by the defendant for a consideration. The trial court took up issues No.1 and 3 together. After thoroughly examining the oral as well as documentary evidence adduced, the court finally came to the conclusion that pronote and receipt were executed in lieu of the amount which was due towards the defendant as per books of account of the plaintiff which were regularly maintained. So the court held that the promissory note and receipt were duly executed by the defendant and the same were for a valuable consideration. Order material issues were also decided in favour of the plaintiff and against the defendant. The court accordingly decreed the suit for a sum of Rs. 27,000/-. However, plaintiffs claim for interest on the amount due to the defendant was, however, declined.

The sole submission of learned counsel for the appellant is that as per averment in the plaint, defendant is stated to have taken cash loan of Rs. 27,000/- from the plaintiff firm while executing pronote and receipt on 4,2.1975 whereas as per evidence on record no cash payment has been made to the defendant on the date of execution of the pronote and the receipt. This being so, court below erred in law in coming to the conclusion that the pronote and receipt were executed for consideration. According to the counsel, trial court, in fact, erred in law in holding that the promissory note, in fact, has been executed on the basis of settlement of accounts between the parties. This way a new case has been set up by the court which, however, was not set up by the plaintiffs.

The basis of the suit is pronote and receipt dated 4.2.1975 vide which the defendant is stated to have agreed to pay back the sum of Rs. 27,000/- as and when demanded along with interest at the rate of 1.56% per mensum. To prove the pronote and the receipt Exhibits P-3 and P-4 respectively, plaintiffs examined Sat Narain PW4, scribe of the document, and Sarv Sh. Babu Ram and Kasturi Lal, PW1 and PW2 respectively, attesting witnesses of the document. All these witnesses have made statement on oath that after the plaintiff firm, the defendant executed the pronote Exhibit P-3 and receipt Exhibit P-4 in lieu of the balance amount due form him. Both these witnesses further deposed that writing D to D on Exhibit P-3 and E to E on Exhibit P-4 are in the handwriting of Harbans Singh defendant. Similarly, Babu Ram has deposed that the writing F to F is in the hand of Harbans Singh which is to the effect that the pronote has been written in lieu of the balance amount struck after the settlement of accounts. Similarly, as per writing G to G on Exhibit P-4, it is clear that on settlement of accounts the defendant accepted the fact that a sum of Rs. 27,000/- is due to the plaintiff (as per statement of accounts). To rebut this evidence, there is solitary statement of Harbans Singh obviously denying the execution of the pronote and the receipt and raising of any cash loan from the plaintiff firm. Precisely on this account, the court has found the evidence, not worthy of credence. On reappraising evidence. I too am of the view that the pronote and the receipt have been duly proved by examining the attesting witnesses as well as scribe. Even the amount of consideration stands proved as per books of accounts clearly bringing out that a sum of Rs. 20,000/- was due to the defendant and another sum of Rs. 700/- was due on account of interest which has accrued on various amounts which had been advanced by the plaintiff firm. To settle the accounts, parties agreed to give it a form in the shape of pronote to which the defendant too appended his signatures in the presence of witnesses. Acceptance of past consideration is also a valid consideration to hold that the document has been executed for consideration. In the context of the present case, the court rightly came to the conclusion that promissory note and receipt were only executed by the defendant and for a valuable consideration. Thus, I find no ground to vary or reverse the well considered judgment of the trial court. Accordingly, finding no merit in the appeal, the same is dismissed. No order as to costs.