Rakesh Kumar Jain, J.@mdashDefendants are in second appeal against the judgment and decree of both the Courts below whereby, suit filed by the Plaintiff for recovery of Rs. 1 lac along with interest @ 12% per annum from the date of execution of the pronote i.e. 26.1.2000 till the institution of the suit along with interest pendente lite and further interest @ 6% per annum on the principal amount of Rs. 1 lac from the date of filing of the suit till the realization of the decreed amount with costs, has been decreed to be paid by the Defendants jointly and severally.
2. In brief, the pleaded case of the Plaintiff is that Defendant No. 2 borrowed a sum of Rs. 1 lac from Plaintiff on behalf of Defendant No. 1 representing himself as its partner after executing a pronote and receipt on 26.1.2000 in presence of marginal witnesses, who had signed the back of the pronote and receipt. He agreed to pay interest @ 1.80% per mensum and further agreed to return the amount with interest after 5 months from 26.1.2000. As the Defendants did not return the amount, the suit was filed under Order XXXVII of the Code of Civil Procedure, 1908 (for short ''CPC''). In order to contest the suit, Defendants filed an application to leave to defend, which was allowed subject to furnishing surety bonds to the tune of Rs. 1,75,000/-. The said order was challenged by the Defendants by way of Civil Revision No. 2067 of 2004 before this Court, which was allowed on 10.7.2006 granting unconditional leave to the Defendants to contest the suit. The Defendants have filed written statement in which the liability was denied and it was alleged that the pronote and receipt are forged and fabricated documents. Defendant No. 2 is agriculturist, who had dealing with the father of the Plaintiff. There was a dispute between them regarding paddy crop of the year 1999 because of which in connivance with the father, the Plaintiff had prepared a forged pronote and receipt as no consideration was passed over and hence dismissal of the suit with costs was prayed. The Plaintiff filed replication reiterating the stand taken by the Defendants and denying the averments made in the written statement. On the pleadings of the parties, issues were framed on 9.9.2005, which are reproduced as under:
1. Whether the Defendants borrowed a sum of Rs. 1,00,000/-from the Plaintiff in lieu thereof executed pronote and receipt dated 26.1.2000 in presence of marginal witnesses thereof as alleged? OPP
2. If issue No. 1 is proved in affirmative, whether the Plaintiff is entitled to the interest, if so at what rate? OPP
3. Whether the suit of the Plaintiff is false, vexatious to the knowledge of the Plaintiff and is liable to be dismissed as alleged? OPD
4. Whether the present suit is not maintainable in the present form? OPD
5. Whether the alleged pronote and receipt are under stamped, if so, its effect? OPD
6. Relief.
3. The Plaintiff examined himself as PW1, who tendered his evidence Ex.PW1/A. He also tendered original pronote as Ex.P1, original receipt as Ex.P2 and endorsement on back of the pronote as Ex.P3. Shyam Sunder appeared as PW2, who is the marginal witness of the pronote and the receipt. He tendered his affidavit as PW2/A. The Defendants examined Darshan Singh as DW1, who has tendered his affidavit Ex.DW1/A. Kuldeep Singh was examined as DW2, who has tendered his affidavit Ex.DW2/A and copy of the attested dissolution deed as Ex. DW1.
4. Both the Courts below has appreciated the oral as well as documentary evidence available on record and decreed the suit of the Plaintiff. The relevant findings of the First Appellate Court are as under:
Therefore from evidence on record, the execution of the pronote Ex.P1 and receipt Ex.P2 and that of endorsement Ex.P3 are duly proved on record. Once the due execution of pronote and receipt is proved, it is for the Defendant to prove that it was without consideration. However, the Defendant failed to rebut the presumption, which arises in favour of Plaintiff u/s 118 of the Negotiable Instrument Act. Mere oral testimony of Defendant to deny the existence of consideration is not enough. One of the contentions raised by learned Counsel for the Appellant is that the firm between the Defendants had already been dissolved vide dissolution deed Ex.D1 on 21.03.1992, which has been proved on record by DW2 Kuldeep Singh. However, I do not find any merits in the contentions of learned Counsel for the Appellant. Though it is the case of Appellant that partnership deed between the Defendant was dissolved vide dissolution deed Ex.D1 and he become the sole proprietor of the firm after its dissolution, however perusal of pronote Ex.P1 and receipt Ex.P2 and that of endorsement Ex.P3 clearly reveals that he appended the stamp on behalf of M/s Kartar Singh Sama and Sons as his partners.
5. Still aggrieved, the present second appeal has been filed by the Defendants in which the only question that has been raised by the learned Counsel for the Appellants is that the pronote was not duly stamped, therefore, it was inadmissible in law. Though the argument has been raised but it has not been substantiated by the learned Counsel for the Appellants. Therefore, I do not find any force in the said submission. No other argument has been raised.
6. In view of the above, I do not find any error in the judgment and decree of both the Courts below, which could warrant interference by this Court in this appeal as no question of law much less substantial has been framed or raised before him as envisaged u/s 100 of the CPC and thus, the present appeal is dismissed in limine though without any order as to costs.
