Kishanlal vs Sograj Bantia

Sivasubramaniam, J.—The plaintiff who was unsuccessful in O.S.217 of 1976 on the file of the Subordinate Judge, Vellore, is the appellant

in this appeal. The appellant plaintiff filed the said suit for recovery of a sum of Rs. 46,000 due on a pronote against the respondent contending that

the defendant for himself and in his capacity as a joint family manager borrowed from the plaintiff Rs. 34,000 for his joint family necessity and

executed the suit pronote dated 27.10.1973 agreeing to repay the same with interest at 15% per annum.

The defendant resisted the suit and filed a written statement raising the following contentions:- He denied the execution of the pronote dated

27.10.1973. According to him, he has never borrowed money from the plaintiff and the suit pronote was not executed by him. He is not doing any

joint family business and the business that he has been carrying on, is his separate business. It is only with a view to bind the sons of the defendant,

the plaintiff has come out with a false plea that the defendant has borrowed money from the family business.

The Trial Court framed necessary issues and after considering the entire evidence on record, dismissed the suit holding that the defendant did

not execute the pronote and even if the pronote is valid, plaintiff can recover only a sum of Rs. 34. Aggrieved against this decision, plaintiff has filed

the above appeal.

The only point that arises for consideration in this appeal is whether the defendant as the joint family manager borrowed Rs. 34,000 from the

plaintiff and executed the suit pronote on 27.10.1973.

The plaintiff has come forward with the suit on the basis of pronote dated 27.10.1973 marked as Ex.A1 in this case. He examined himself as

P.W.1 and according to his evidence, the defendant borrowed from him Rs. 34,000 and executed the suit pronote. The defendant used to sign

only in Hindi earlier as is seen from the copy of the plaint in O.S. 16 of 1941, Ex.A6, which was a suit Bled by the defendant against his brother

and his wife. P.W.2 has stated that he was also present when Ex.A1 was written. However, he has not attested Ex.A1. As the defendant has

denied the execution of the pronote, the burden is on the plaintiff to prove the execution of the pronote and passing of consideration for the same.

In the plaint, the name of the defendant is given as Jograj Bhantia. Even according to the defendant, it is not his correct name. The name given by

him in Ex A6 tallies with his name. Therefore, we can take it for granted that the correct name of the defendant is Jograj Bhantia. However, the

name of the executants of Ex. A1 is described as Bhantia Jograj Mathanlal. Strangely, the signature of the executant roads as Jograj Bhantia.

Therefore, there is considerable doubt about the identity of the person who had actually executed Ex.A1. The defendant has categorically denied

the signature and according to him, it is a rank forgery. Therefore, we have to find whether Ex.A1 contains his signature or not. Even though the

Lower Court has held that the signature found in Ex.A1 is not that of the defendant, it has not set out reasons for coming to the conclusion.

Therefore, this being the first appeal, we have carefully compared the signature found in Ex.A1 with that of the admitted signature found in Ex.A6.

On a careful examination of these two signatures, we find that they are not identical and they could not have been signed by the same person. The

two signatures are found to vary in important characteristics. The formation of the letters is found to be different. On examination of these two

signatures, we find that the curve ''...'' found in the signature in Ex.A1 at the starting point of the signature, is not found in the admitted signature in

Ex.A6. Again, there is a glaring difference in the Hindi letter for the letter ''d'' in the two signatures. The manner of curve found in the admitted

signature is quite different from the curve found in Ex.A1. Again, there is distinct difference between the Hindi letter for ''ya'' in Ex.A1 and the

admitted signature in Ex.A6. Apart from that, there are other minor variations which throw considerable doubt about the genuineness of the

signature. In so far as oral evidence is concerned, there is material contradiction between the evidence of P.Ws. 1 and 2 about the persons present

at the time of execution of Ex.A1. According to P.W.1, no one else witnessed the payment and that apart from the defendant, he was alone

present. But it is seen from the evidence of P.W.2, he claims to have been present at the time of execution. If really P.W.2 was there, certainly, he

would have attested the pronote. The plaintiff being an experienced businessman, would not have omitted to get the signature of P.W.2 as an

attesting witness in Ex.A1.

Another aspect which throws considerable doubt in the execution of Ex.A1 is that P.W.1 was not able to produce any records to show that any

payment was made under Ex.A1. Even though the defendant gave notice under Ex.B1 to P.W.1 to produce his accounts, the plaintiff had failed to

do so. He admitted in cross-examination that the amount paid under Ex.A1 belonged to his wife and the same was with him after the death of his

wife during the period from 1969 to 1973. There is no record to show that such a huge sum was available with the plaintiff during the relevant

period. Moreover, the said fact was not mentioned by him either in the notice Ex.A3 or in the plaint. He has come forward with this explanation

only as an after thought. Evidently, this has been thought of only as an explanation for the absence of any entries in his accounts regarding the suit

transaction. P.Ws.1 and 2 are strangers and it appears that they have no previous dealings between them. It is highly improbable that P.W.1 would

have advanced such a huge sum in the manner he has done. The suit transaction has not been shown in the income tax returns of the plaintiff. The

learned counsel for the plaintiff urges that it is admitted that D.W.1 celebrated the marriage of his daughter in 1974 and therefore, it is probable that

he would have borrowed the amount under Ex.A1. It is only a too remote possibility which cannot be taken as the circumstance to prove the

execution of Ex.A1. For all these reasons, the Trial Court has rightly rejected the evidence of P.Ws.1 and 2 and held that the pronote was not

executed by the defendant. We do not find any ground to interfere with the said findings, as we have come to the same conclusion as that of the

Trial Court.

There is one other vital defect in the promissory note Ex A1. It is seen from Ex. A1 that Rs. 34,000 is mentioned in numerical numbers but while

writing the amount in words, it is only mentioned as thirty four, and not as ''thirty four thousand''. D.W.2 who has translated Ex.A1 from Marvari

into English under Ex.A.2. has inadvertently committed a mistake by adding the words ''thousand'' after the words ''Rupees thirty four'' which is not

found in the original Ex.A1. He has explained this mistake in his evidence. However, there is no dispute on this aspect and it is admitted that the

word ''thousand'' is not found in the original after the words ''Rupees Thirty Four''. Therefore, there is apparent difference between the words

shown in numerical and in words. The question is when there is such a difference in describing the amount lent under the promissory note which

figure has to be taken as the correct one, the answer is found in S.18 of the Negotiable Instruments Act, 1881, which says as follows:--

Where amount is stated differently in figures and words:- If the amount undertaken or ordered to be paid is stated differently in figures and in

words, the amount stated in words shall be the amount undertaken or ordered to be paid.

The above rule is founded on common sense and experience that a man is more apt to commit an error with his pen in writing in figure than in

writing in words. This aspect has been directly considered by a Full Bench in the decision reported in The Jammu and Kashmir Bank Ltd. Vs. Qazi

Taj Din, ) wherein the following principle has been laid down.

When a difference arises between the sum expressed in words in the body of the instrument (pronote) and that mentioned in figures on the top in

one corner, the amount mentioned in words will be taken to be the sum for which the instrument was made payable. The mandatory nature of S.

18 (Negotiable Instruments Act) gives no choice to the Courts to give preference to the sum mentioned in figures over the amount mentioned in

words.

Applying these principles, there is no scope for holding that the amount lent under Ex.A1 is Rs. 34,000. It is only on this basis the trial Court has

come to the conclusion that, even if the promissory note is true, it would be valid only for Rs. 34.

Learned counsel for the appellant made a strong reliance on the fact that in the suit promissory note Ex.A1, 0 30 P. stamp is affixed indicating

that the amount should be more than Rs. 34. According to him if the promissory note is executed only for Rs. 34, there is no need to affix 0-30 P.

stamp since 0.10 P. is sufficient. But such a contention cannot be accepted in view of the mandatory provision of S. 18 of the Negotiable

Instruments Act. For these reasons, we do not find any ground to interfere with the findings of the trial Court on this aspect.

It is argued on behalf of the appellant that the suit document Ex.A1 is not a promissory note in the strict sense of the term. It is only in the form

of a letter which is customarily known as ""rukha"" According to the learned counsel for the appellant, the language found in Ex.A1 does not satisfy

the requirements of a promissory note as defined under the Negotiable Instruments Act. We are unable to appreciate this contention. It is

significant to note that the suit itself is filed on the basis that Ex.A1 is a promissory note as is seen from the averments in the plaint filed by the

appellant and the evidence of the plaintiff also is to the same effect. Therefore, it is not open to the appellant to raise this new plea before this Court

for the first time. Lastly, learned counsel for the appellant submitted that in any event, the defendant is bound to pay the amount under Ex.A1 and,

therefore, in equity a decree should be granted in favour of the appellant. We feel that the question of equity does not come into picture in a matter

like this where the statutory provisions are found to be mandatory. In the result, the decree and judgment of the trial Court are confirmed and this

appeal is dismissed with costs.