Gujarat High Court
Mangubhai Mansukhram Pandya And Anr. vs Pranjivan Tribhovandas Purohit on 23 November, 1990
Equivalent citations: AIR1992GUJ1, AIR 1992 GUJARAT 1, (2010) 1 NIJ 175, (1992) 2 BANKLJ 237, (1992) CIVILCOURTC 225, (1991) 1 GUJ LH 65, (1992) 1 BANKCAS 589, (1993) BANKJ 238
JUDGMENT
1. This appeal is directed against the judgment and decree passed by the learned Civil Judge (S.D.), at Baroda, in Special Civil Suit No. 312 of 1972, on 30-12-1975. Thus, the plaintiffs have invoked the aids of the provisions of S. 96 of the Civil Procedure Code ('Code' for short, hereinafter) and have, now, come up before this Court by way of this appeal.
2. The facts' giving rise to the present appeal may be, shortly, stated at the out set. The present appellants are the original -plaintiffs who instituted the above suit for recovery of Rs. 13,810/- from the present respondent/ original defendant on the basis of nine pronotes.
3. The appellants who are the original plaintiffs, inter alia, contended by filing the above suit that they had advanced a sum of Rs. 13,810/- to the respondent, who is the original defendant, for his contract work on different dates, on the basis of pronotes. The original defendant had executed nine pronotes as follows:
Sr.No. Date Amount (Rs.)
1. 11-12-1969 1, 000
2. 3. 23-12-1969 200
4. 5. 27-12-1969 400
6.
7. 30-12-1969 1, 000
8.
9. 05-01-1970 4, 200
10.
11. 09-01-1970 1, 655
12.
13. 17-01-1970 1, 770
14.
15. 26-01-1970 2, 040
16.
17. 31-01-1970 1, 545
18. ______ 13, 810 The plaintiffs demanded the said amount with interest at the rate of 15 per cent per annum from the original defendant. Original defendant failed to pay the said amount. Therefore, the plaintiffs instituted the above suit on 8-12-1972. Defend ant-contractor appeared and resisted the suit by filing written statement, at Ex. 20. He, inter alia, contended that the suit amount was not due from him. He denied to have executed the pronotes. Alternatively he contended that the suit pronotes were without consideration. He also contended that such a big amount of Rs. 13,810/- would not have been taken by him within a spell of 49 days. He pleaded that he had entered into a contract for the construction of Padra-Karjan Road with the District Panchayat, at Baroda. It was a big contract work involving about Rs. 5 lacs and there was an oral partnership with the plaintiffs for that work. The son of plaintiff No.1 one Girishbhai was also appointed as defendant's power of attorney to withdraw the amounts and to supervise the contract work. The plaintiffs had made payments to the labourers. The plaintiffs had also maintained all accounts and the same were in their possession. It was further contended by the defendant that the plaintiffs were dealing with money lending business without licence. In short, the whole suit came to be contested.
4. In view of the pleadings of the parties, issues came to be raised, at Ex. 21. The oral evidence is consisted of two witnesses. Plaintiff No. 1, Mr. Mangubhai Mansukhram Pandya, was examined, at Ex. 35 and defendant, Pranjivan Tribhovandas Purohit, was examined, at Ex. 47. The plaintiffs relied on nine pronotes, as stated above and produced at Exhs. 36 to 44. No other documentary evidence is produced.
5. In view of the analysis and appreciation of the evidence, oral as well as documentary, on record, the learned trial Court Judge was pleased to dismiss the suit with costs.
6. Being aggrieved by the said judgment and decree, the original plaintiffs have, now, come up before this Court challenging its legality and validity.
7. The learned counsel for the appellants/ original plaintiffs Mr. Y. S. Mankad, for Mr. B. H. Shah, advocate, appeared and made submissions. Respondent/ original defendant was served.
8. Learned counsel Mr. Mankad for the original plaintiffs has contended that the impugned judgment and decree are totally perverse and illegal. He has argued that the plaintiffs have successfully proved the suit claim on the basis of the pro-notes. This Court is taken through the entire oral as well as documentary evidence on record.
9. It is amply clear from the evidence on record that the pro-notes, produced at Exhs. 36 to 44, are on the letter-pads of the defendant, who was working as a Government contractor. The defendant had taken a contract to construct Padra-Karjan Road, before the suit transactions. Plaintiff No. 1, Mr. M. M. Pandya, has clearly testified in his evidence, at Ex. 35, that all the nine pronotes, produced at Exhs. 36 to 44, are executed and signed by defendant in his presence. It is also admitted by the defendant that the said pronotes are on his letter-pads. There is no reason to disbelieve the evidence of the plaintiffs on this score. The learned trial Court Judge has not believed the evidence of the plaintiffs as regards the execution of the pronotes by the defendant merely on the ground that one witness, Jayantilal Nageshwar, through whom the plaintiffs were introduced to the defendant, is not examined by the plaintiffs. It appears, the learned trial Court Judge has failed to appreciate that the said person, Jayantilal Nageshwar, was a "Munim" (Accountant) of the defendant. The defendant has admitted this position in his evidence in paragraph 1, at Ex. 47. Not only that, he has also admitted that he would examine Jayantilal Nageshwar as his witness. A person who is working as an accountant with the defendant, who introduced the plaintiffs to the defendant, if not examined by the plaintiffs, under these circumstances, could it be said that it would be fatal to the case of the plaintiffs and the spontaneous answer would be in the negative. It is an admitted fact that the defendant had taken a contract worth Rs. 5 lacs for the construction of Padrakarjan Road. He had engaged as many as 70 labourers. The defendant has also admitted in his evidence that the pro-notes are written on his letter-pads. It is also very clear from the evidence of the defendant himself that the plaintiffs were making payments to the labourers of the defendant. It is also categorically admitted by the defendant that the plaintiffs used to adjust the amount of Rs. 150/- paid to Girishbhai every month. The adjustment of this amount against what? In the circumstances of the present case, the evidence of the defendant is not reliable. The evidence of the plaintiffs is very clear to prove that there was no partnership with the defendant.
10. The defendant's one of the contentions in the written statement was that there was an oral talk of partnership with the plaintiffs. However, he has admitted that he had never talked directly with the plaintiffs for partnership but it was a talk through one Jayantilal Nageshwar who is his "Munim". Jayantilal Nageshwar is not examined by the defendant though he is his munim. Thus, the contention that there was an oral partnership, with the plaintiffs is not proved and it appears that it was falsely raised.
11. This is not a case of a poor, illiterate, unsophisticated villager. The defendant is a Government contractor and he is a literate, sophisticated person and the pro-notes are executed on his letter-pads. The signatures of the defendant on the pro-notes are duly proved. There is no slightest doubt about the execution of all the pro-notes by the defendant.
12. The learned trial Court Judge has also seriously erred in holding in para 8 of the judgment that the plaintiffs have not proved the consideration of the suit pro-notes. It appears that the attention of the learned trial Court Judge was not drawn to the provisions of S. 118 of the Negotiable Instruments Act, 1881. Provision of this section raises a presumption that the negotiable instrument is made for the consideration mentioned therein, S. 118 of the Negotiable Instruments Act raises a statutory presumption that there was consideration for every negotiable instrument. The presumption continues until it is rebutted and only where it can be rebutted by proving the contrary i.e., negotiable instrument was without consideration. So the onus of proving that there was no consideration was on the defendant. The trial Court has not taken into 'consideration S. 118(a) of the Negotiable Instruments Act. Needless to mention that in a case based on pro-notes, the initial burden lies on the plaintiffs to prove execution of the pro-notes and when this burden is discharged, then the Court shall raise a presumption in favour of the plaintiffs for holding that the pro-notes were for consideration and it will be for the defendant to rebut that presumption. Therefore, the observations of the learned trial Court Judge in para 8 of the judgment about the failure of the plaintiffs to prove consideration of the pro-notes are unwarranted and against the statutory presumptions arising out of S. 118(a) of the Negotiable Instruments Act.
13. The defendant has also failed to prove that there was no consideration. The presumption under S. 118(a) of the Negotiable Instruments Act has not been rebutted by the defendant by leading any evidence. A person who was engaged in Government contract work worth Rs. 5 lacs and a person who used to engage about 70 labourers for such a project, must be maintaining accounts book. The defendant has not led any documentary or oral evidence to show that either there was a partnership with the plaintiffs or to rebut the presumption of consideration of the pronotes.
14. The trial Court has also erred in drawing adverse inference against the plaintiffs for non-examination of Jayantilal Nageshwar. In fact, adverse inference can be drawn for non-examination of Jayantilal Nageshwar against the defendant as Jayantilal Nageshwar happened to be his Munim. The observations of the learned trial Court Judge on this score also are erroneous. The reliance placed by the learned trial Court Judge on the decision reported in AIR 1957 All 119, is also erroneous. It is true that under S. 73 of the Indian Evidence Act, it would not be prudent and expedient to solely place reliance on comparison of signatures. The ratio of the decision of the Allahabad High Court (supra) is that it would not be safe to base conclusion, entirely, on such comparison. It cannot be said that the comparison, of signatures with admitted signatures would not be useful as one of the circumstances in reaching to a conclusion. S. 73 of the Indian Evidence Act clearly, prescribes that in order to ascertain whether a signature is that of a particular person by whom it purports to have been made, his signature can be compared with the admitted signature. So, far the purpose of enabling the Court to compare the disputed signature with admitted signature, specific provision is made in S. 73 of the Indian Evidence Act. The trial Court Judge has failed to appreciate the ratio of the aforesaid decision of the Allahabad High Court. Be that as it may. The comparison question under S. 73 of the Indian Evidence Act would not assume any significance in the present case as there is other clear evidence on record to prove the execution of pro-notes.
15. Having regard to the facts and circumstances and the evidence referred to herein before, it is very clear that the suit pronotes were executed by the defendant. The defendant has totally failed to prove that the pro-notes were without consideration. This Court is fully satisfied that the plaintiffs had advanced a sum of Rs. 13,810/- on the basis of the pro-notes executed by the defendant. Therefore, the finding of the learned trial Court Judge on this point requires to be set aside.
16. Next question that arises now is as to what amount of interest should be awarded to the plaintiffs on the suit dues. The plaintiffs have claimed 15% interest. There is no agreement about interest in the pro-notes. There is no specific agreement or contract about interest on the suit dues. The pro-notes were executed in the year 1969. The suit came to be filed on 8-12-1972. In the facts of the present case, it would be just and reasonable to award interest at the rate of 9 per cent per annum from the date of the suit till its realisation.
17. In the result, the impugned judgment and decree are hereby quashed. The suit of the plaintiffs is decreed. The respondent/ original defendant shall pay a sum of Rs. 13,8 10/ -with interest at the rate of 9 per cent per, annum from the date of the suit till its realisation, with costs all throughout to the appellant/ original plaintiffs. The appeal is allowed accordingly.
18. Appeal allowed.