Pardaman Singh vs Rajesh Kumar

Appellant-defendant has filed this appeal challenging judgment and decree dated 15.3.2011 passed by learned Additional District Judge, Patiala

whereby decretal of suit filed by respondent-plaintiff for recovery of an amount ofRs. 7,50,000/- along with interest by the learned Additional Civil

Judge (Senior Division) Nabha, has been upheld.2. The case set up by the respondent-plaintiff is that on 26.11.2001, the appellant-defendant had taken

a loan of Rs. 7,50,000/- on interest @ 1.56% per month from the respondent-plaintiff and had executed a pronote and a receipt of even date.

However, since the appellant-defendant failed to repay even a single penny despite repeated requests, the respondent-plaintiff filed the present suit for

recovery of an amount of 7,50,000/- as principal amount and another amount of Rs. 4,05,000/- towards interest along with future interest@ 1.5% per

month.

Appellant-defendant resisted the suit and filed written statement wherein a stand was taken that he has been cheated being an innocent person

whereas the plaintiff is a clever man and a brother of a judicial officer. Objection, as regards maintainability, was also raised. On merits, the appellant-

defendant took a stand that infact in the year 1998, the respondent-plaintiff had sold a motorcycle to the appellant-defendant for an amount of Rs.

30,000/- and had obtained signatures of the appellant-defendant on some blank papers on the pretext that the name of the appellant-defendant is to be

incorporated in the Registration Certificate of the motorcycle and that the respondent-plaintiff might have used these papers for forging the pronote.4.

The parties were put to proof on the following issues :-

Whether the plaintiff is entitled to recovery of Rs.11,55,000/-from the defendant as prayed for ? OPP

Whether the plaintiff is entitled to interest, if so at what rate ?OPP3. Whether the plaintiff has got no cause of action to file present suit ? OPD

Whether the pronote and receipt is result of fraud, misrepresentation and without consideration ? OPD

Whether the plaintiff is money lender and has not complied with the provisions of money lending and regulation Act? OPD

Relief.

The respondent-plaintiff, in order to prove his version, himself stepped into the witness box as PW-3 and also examined PW-1 Gurdev Singh and

PW-2 Jasbir Singh whereas the appellant-defendant himself stepped into the witnessbox as DW-3 and also examined DW-1 Amritpal Singh and DW-

2 Manmohan Singh.6. The learned lower Court, upon appraisal of the evidence on record, returned its findings on material issues regarding execution

of pronote in favour of respondent-plaintiff and held that the plaintiff is entitled to recover an amount of Rs. 7,50,000/- along with interest @ 6% per

annum from the date of pronote till realization of entire decretal amount from the defendant vide judgment and decree dated 23.9.2010. Upon appeal,

the said judgment and decree was affirmed by the Court of learned Additional District Judge Patiala vide judgment dated 15.3.2011 which has been

impugned by way of filing the present appeal.7. The learned counsel for the appellant-defendant, while assailing the impugned judgment, has submitted

that the testimonies of the attesting witnesses are far from being reliable which is infact suggestive of the fact that the pronote in question is a result of

fraud and forgery. On the other hand, the respondent-plaintiff has submitted that the execution of pronote stands duly established from the consistent

testimonies of PW-1 Gurdev Singh and PW-2 Jasvir Singh, who are both attesting witnesses, coupled with the testimony of plaintiff PW-3 Rajesh

Kumar.8. I have considered the rival submissions addressed before this Court and have also perused record of the case.9. In order to appraise the

findings returned by the Courts below, it is apposite to refer to the testimonies of the witnesses examined by the respondent-plaintiff. Though, both the

attesting witnesses i.e. PW-1 Gurdev Singh and PW-2 Jasvir Singh, in their examination-in-chief, have furnished affidavits wherein theyhave deposed

consistently to the effect that defendant Pardaman Singh hadexecuted pronote dated 26.11.2001 Ex.P-1 and receipt Ex.P-2 which wassubscribed by

PW-2 Jasvir singh and after the same has been scribed, the samehad been read over to all and that the defendant, after admitting the pronoteand

receipt as correct, signed upon the same in their presence and in thepresence of other witnesses but a perusal of their cross-examinations reveals

adifferent story. The relevant extract from the cross-examination of PW-1Gurdev Singh is reproduced below for the sake of ready reference :-

“For the last over two years I am living at Gurdawara Hajur Sahib……………...I am living separate from my children for the last16 years. I

retired from army in 1963. I never stayed at Nabha…………….I do not know whether I gave my affidavit at the house of Rajesh Kumar. I do not

remember that who got this affidavit from where. I do not know whether this affidavit was attested by oath commissioner or Magistrate. Rajesh

Kumar got it signed from me, but I do not know from where he got it attested …………………….Rajesh Kumar plaintiff asked me to sign

onpronote……………………..I did not see second witness JasvirSingh working at the shop of plaintiff. He might be clerk of a lawyer.â€10. The

aforesaid cross-examination, first of all, shows that after his retirement from the Army in the year 1963, he never stayed at Nabha where the pronote

is stated to have been executed. Further, he has stated that he does not remember as to whether he had given the affidavit at the house of Rajesh

Kumar and as to whether the same had been attested by the Oath Commissioner or Magistrate.11. Furthermore, the cross-examination of PW-2

Jasvir Singh virtually demolishes the case of the respondent-plaintiff. The relevant extract from his cross-examination reads as under :-

“I am clerk with Sh. N.K.Goel Advocate Patiala. His full name is Nirmal Kumar Goel. I am clerk with him for the last 11

years…………………...Sh. N.K.Goel is real brother of RajeshKumar plaintiff. Nirmal Kumar was sub-judge…………..……..It iscorrect that I

put my witness at the instance of Sh. Nirmal Kumar. It was written in his house. Nirmal Kumar was present at the time of scribing

pronote………………..……… No person apart fromNirmal Kumar and Rajesh Kumar was present there. Stamps were already on the pronote

and signatures were also already there. I only filled the pronote on the asking of Nirmal Kumar ji. In my presence plaintiff Rajesh Kumar did not give

any money to defendant Pardaman Singh.â€​

A perusal of the aforesaid cross-examination shows that he has categorically stated that in his presence, Rajesh Kumar did not give any money to

Pardaman Singh. A perusal of cross-examination of PW-3 Rajesh Kumar, plaintiff shows that he has admitted that he files income tax returns. He

has, however, stated that because these amounts were not deposited in his account, therefore, the same were not reflected in his income tax

return.13. After having perused the aforesaid statements, receipt Ex.P-2 also needs to be perused. A translated gist of the said receipt is reproduced

below for the sake of ready reference:-RECEIPT PRONOTE“I, Pardaman Singh Son of S. Gurnam Singh S/o Gurdit Singh, Village Banera

Khurd, Tehsil Nabha, District Patiala have executed pronote for an amount of Rs. 7,50,000/-, half of which is Rs. 3,75,000/-on 26.11.2001 and have

received an amount of Rs. 3,75,000/- from Rajesh Kumar S/o Telu Ram in the presence of below mentioned witnesses. As such, the aforesaid receipt

and pronote have been executed in sound state of mind for the purpose of record. Dated 26.11.2001.â€14. The aforesaid receipt shows that though a

pronote for an amount of Rs. 7,50,000/- was executed but the amount received by the plaintiff is recorded as Rs. 3,75,000/-. The learned counsel for

the respondent-plaintiff has, however, submitted that the same is a minor inadvertent error and since the pronote was for an amount of Rs. 7,50,000/-,

therefore, it has to be held that the entire sale consideration of Rs. 7,50,000/- had passed on to the appellant-defendant. This Court is unable to accept

the aforesaid explanation, especially in view of the fact that the attesting witness Jasvir Singh has categorically stated that no consideration had passed

in his presence. Even the other witness i.e. PW-1 Gurdev Singh has stated that he has not been residing at Nabha since the last 5years. Such

depositions have put a question mark on the credibility of case of the respondent-plaintiff. Further, the fact that the respondent-plaintiff, despite being

an income tax payee, has not reflected any amount in his income tax returns though the said amount is a huge amount would also put this Court at

caution.15. In view of the above said circumstances, the findings as recorded by the learned Trial Court and as affirmed by the lower Appellate Court

regarding execution of pronote and regarding receipt of an amount of Rs. 7,50,000/- by the appellant-defendant cannot stand and are hereby reversed

holding therein that the respondent-plaintiff has been unable to establish that he had given anamount of Rs. 7,50,000/- to the appellant-defendant or

that the appellant-defendant had executed a pronote and receipt for the same. Consequent upon reversal of the said findings, the judgment and decree

cannot sustain and are hereby reversed.16. The appeal consequently, is accepted and the impugned judgments are hereby set aside. The suit filed by

plaintiff stands dismissed.