Patna High Court
Shriniwas Pansari vs Dr. Hari Prasad Mehra And Ors. on 12 May, 1983
Equivalent citations: AIR1983PAT321, 1983(31)BLJR649, AIR 1983 PATNA 321, (1983) PAT LJR 541 1983 BBCJ 494, 1983 BBCJ 494
JUDGMENT B.P. Griyaghey, J.
1. This is an appeal against the judgment of 5th Additional Subordinate Judge, Darbhanga, decreeing the suit of the plaintiffs, which was a suit for recovery of Rs. 32,215/- being the principal with interest thereon on the basis of a pro note (Ext. 1) which was described as a document of acknowledgment with respect to certain past dues which after accounting and adjustment was found to have been Rs. 27,000/-which was promised by that document to be paid with interest at the rate of 12 annas per cent per month.
2. The suit was originally brought by one Jagdish Prasad Mehra, who died during the pendency of this suit, and the present respondents were substituted in place of the original plaintiff. The case of the original plaintiff was that he had transactions with the defendant (the present appellant) and that on 2-4-1967 there was an accounting made of the transactions between the parties and Rs. 27,000/- was found due on that date for which the defendant executed the document (Ext. 1), which was described as a document of acknowledgment. There was, however, a promise to pay the amount as soon as possible with interest at the rate of 12 annas per cent per month. It was further claimed that subsequent to that, on different dates the defendant made certain part-payments amounting to Rs. 2075/-, but the balance of Rs. 32,215/- remained to be paid, which the defendant did not pay in spite of demands. So, the suit was filed for the recovery of the same.
3. The pleas of the defendant, which were urged during the hearing of this appeal, were to deny the claim of the plaintiff that there was an accounting f' the dues between the parties and that Rs. 27,000/-was found due and that the defendant had executed any document in token of the same. It was pleaded that the document claimed by the plaintiff is forged and fabricated. In that connection it was pleaded that in the year 1967 the defendant had pledged some goods with the original plaintiff who had advanced Rs. 7,000/- to the defendant, and as security for that sum of money which was advanced, this defendant had put his signature on a blank piece of paper and had made over the same to the plaintiff. It was stated that the defendant had reason to believe that the said blank piece of paper has been changed into this forged document of acknowledgment, on the basis of which the plaintiff has brought the suit. During argument the learned counsel for the appellant has also raised a point of law, namely, that the document (Ext. 1), which is the basis of the plaintiff's suit, is a mere deed of acknowledgment, which cannot be the basis of the suit; but the basis of the suit could be the original loan, which the plaintiff ought to prove. It was further urged that this document (Ext. 1) is neither a handnote nor a promissory note and therefore the plaintiff cannot recover the amount on the basis of this document (Ext. 1).
4. Therefore, the following points arise for determination in this appeal:
(i) Is the document, (Ext. 1), a genuine document or it is forged and fabricated?
(ii) Are the plaintiffs entitled to recover the dues based on Ext. 1?
FINDINGS
5. Point No. 1: The plaintiffs have undoubtedly to prove the genuineness of this document (Ext. 1), because the defendant has pleaded that it is a forged and fabricated document. But, in view of the plea that has been taken by the defendant challenging the genuineness of this document setting forth a story that there was a transaction of pledging certain goods by the defendant to the original plaintiff and for the original plaintiff having advanced a sum of Rs. 7,000/- to the defendant, the latter had put his signature on a blank piece of paper and had made it over to the original plaintiff by way of security, and that the defendant believed that that document has been used by the plaintiff as an acknowledgment deed (Ext. 1), the plaintiffs' onus to prove the execution of this document is not so heavy in the present case. One of the plaintiffs, namely, Hari Prasad Mehra (P. W. 5) has examined himself to say that this Ext. 1 was executed by the defendant in his presence and that at that time there was accounting of the previous dues and after accounting Rs. 27,000/- was found due and in lieu of that, the defendant had written this entire document (Ext. 1) in his own pen and had put his signature on the stamp affixed on this document. Learned counsel for the appellant has contended that since the genuineness of this document was challenged by the defendant, the plaintiffs ought to have examined a handwriting expert to compare the signature of the defendant on this document with his admitted signature on some document. The plaintiffs in the present case have not examined any handwriting expert to prove the signature of the defendant on this document because of the plea that the defendant had taken in the written statement that he had given his signature on a blank piece of paper and had made over that paper to the original plaintiff. It is, no doubt, true that in spite of this plea, the onus is on the plaintiff to prove the execution of the document by the defendant. But in view of such a plea, at least the signature of the defendant appearing on this document cannot be challenged. It is not only in the written statement that the defendant had taken the plea that he had reason to believe that the same blank piece of paper on which he had put his signature and handed over to the plaintiff, has been used as this document (Ext. 1), but the defendant asserted this fact even in the cross-examination of one of the plaintiffs, P. W. 5: in which in the last sentence, the defendant had put his definite case by suggesting that the document which has been filed by the plaintiff as the basis of the suit is that very paper, which was a blank paper, on which the defendant had put his signature and had made over to the original plaintiff by way of security. From this suggestion it was definitely asserted by the defendant that this document (Ext. 1) filed by the original plaintiff is that very paper on which the defendant had put his signature. In view of such a plea and such a stand taken by the defendant, at least it is proved that this document (Ext. 1) contains the signature of the defendant.
6. It may be also mentioned that though the defendant has given a story of having put his signature on a blank piece of paper and it is alleged that the same has been used for making this document (Ext. 1), but the defendant has not led any evidence in support of this story. Rather on the other hand when the defendant came in the witness box, this document (Ext. 1) was put to him. In paragraph No. 13 of his evidence he has stated that Ext. 1 is not that paper on which he had put his signature on a blank piece of paper and made over to the original plaintiff. Thus, the defendant ultimately gives a go-by to his plea in that respect. The story, therefore, given by the defendant in that regard is not proved, but since the defendant had taken this stand by stating in his written statement, and also putting to the plaintiff (P. W. 5) in cross-examination that this Ext. 1 is that paper on which he had put his signature, there is admission of the fact that the signature on the document is of the defendant.
7. The contention of the learned counsel for the defendant-appellant that the plaintiff ought to have examined a handwriting expert to prove the identity of the signature on Ext. 1 has, therefore, no force in view of the plea of the defendant in this respect in his written statement and the stand taken by him in the cross-examination of the plaintiff (P. W. 5), as stated above. Learned counsel for the appellant has contended that in the present case the trial court has usurped the function of an expert and it has compared the signature on this Ext. 1 with the admitted signature of the defendant on the written statement and the Vakalatnama filed by the defendant in this suit. Learned counsel for the appellant has challenged the jurisdiction of the court to make the comparison itself. In this connection learned counsel has referred to certain observations by the Privy Council in the case of Kesarbai v. Jethabhai (AIR 1928 PC 277). The observation made by the Privy Council in that case was that it was dangerous to stake a decision by comparison by a court especially without the aid in evidence of the microscopic enlargements or any expert advice. Learned counsel has also referred to a single Bench decision of this Court in Tilakdhari Bhagat v. Jagat Rai (AIR 1961 Pat 76) in which also that observation of the Privy Council was quoted and reaffirmed. But in a recent case of the Supreme Court in Murari Lal v. State of Madhya Pradesh (AIR 1980 SC 531) an argument advanced in the same vein that it is hazardous for the Court to compare a disputed writing, was rejected by the Supreme Court with the following observation:
"The argument that the court should not venture to compare writings itself, as it would thereby assume to itself the role of an expert is entirely without force.......If it is hazardous to do, as sometimes said, we are afraid it is one of the hazards to which Judge and litigant must expose themselves whenever it becomes necessary. There may be cases where neither side calls an expert, being ill able to afford him. In all such cases, it becomes the plain duty of the Court to compare the writings and come to its own conclusion."
8. Learned counsel for the appellant has pressed into service a decision of the Supreme Court in State (Delhi Administration) v. Pali Ram (AIR 1979 SC 14), but that decision rather supports the view that "there is no legal bar to the Judge using his own eyes to compare the disputed writing with the admitted writing, even without the aid of the evidence of any handwriting expert." In that particular case however, which was a criminal case, the disputed writing was the sheet-anchor of the prosecution case and therefore it was observed that it was advisable that the Judge in such a case should obtain the opinion of an expert.
9. By referring to this last authority cited by the learned counsel for the appellant it would be found that to come to a decision to find out the identity in a particular writing, there is not only a provision for examining an expert under Section 45 of the Evidence Act, but also that the evidence of any other person acquainted with the handwriting would be relevant under Section 47 of the Evidence Act. In the present case, the plaintiff has examined Binda Bhagat (P. W. 2), who was competent to be acquainted with the writing of the defendant, has stated in his evidence that the writing and signature on Ext. 1 are of the defendant. Thus, in the present case it is not that the trial court has made comparison by itself, but has based his finding also on other evidence admissible under Section 47 of the Evidence Act. I have also compared certain letters of the signature of defendant Shriniwas Pansari and I find that the style of writing ^^Jh** ^^fu** and ^^l** of the word ^^Jhfuokl** and ^^i**] ^^l** and ^^jh** of the word ^^ilkjh** wholly similar in style and pen stroke as those which are on the written state of the defendant. In view of such evidence I feel that the trial court has rightly come to the conclusion that the document (Ext. 1) is a genuine document, which was executed by the defendant.
10. Point No. 2, learned counsel for the appellant has contended that the plaintiffs cannot recover the dues based on Ext. 1, because it is merely a document of acknowledgment of past dues. In support of this contention learned counsel has relied on two authorities of the Allahabad High Court, one in Reoti Ram v. Lachman Pd. (AIR 1926 All 155) and the other in Bal Krishna v. Deb Singh (AIR 1934 All 76). In the latter case it was held that the suit cannot be based on mere acknowledgment of an older debt. In the former case it was held that mere acknowledgment of a liability cannot be made the basis of a suit. Therefore, the document in question has to be examined and tested if it is merely an acknowledgment of dues. Following is the content of the document:
okMk njHkaxk Vkmu okys dk t; xksiky vkxs vkidk gekjk tks ysu nsu gS mldk dqy fglkc djds vkt rd gekjs ikl dqy 27000@& lrkbZl gtkj :i;k fglkc djds ckdh gS ftldks ges dcqy vkSj ,dukSyst djrs gS vkSj mlls igys dk tks Hkh dkxt Fkk oks geus okil ys fy;k vkSj bldk lqn nj AAA0½ ckjg vkus lsdMk egkokjhds fn;k djsaxs tgk¡ rd gks ldsxk A ge :i;k tYn nsus dh dks'kh'k djsaxs A bl okLrs ;g ,dukSystesUV cuk HkkbZ txnh'kizlknth esgjk dVyokMh njHkaxk dks Jhfuokl lurks"k dqekj nqdku eqgYYk xqyh&
11. It may be noted that no doubt this document has been given the name of a document of acknowledgment, but that will not decide the nature of the document. The nature of the document is to be decided by its contents and not to be determined by the name given to it by the parties. The distinctive feature is to determine as to whether the document is mere acknowledgment of past dues or a fresh contract to pay. By referring to this document it would be found that it is not a mere acknowledgment of the past dues. But it is stated that all transactions between the parties were accounted for and after accounting Rs. 27,000/- was found due. It is also stated that all the previous documents relating to the previous dues were returned to the debtor and this fresh document of the outstanding dues was executed in which there was a fresh promise to pay. Thus, there was a fresh contract by, this document. In that case of Allahabad High Court in Bal Krishna v. Deb Singh (AIR 1934 All 76) (supra) this point of distinction was noted that if the document amounted to a new contract including a fresh promise to pay, it would not be interpreted as merely a document of acknowledgment.
12. There are catena of decisions of this Court and also of the Supreme Court to hold that a pro note could be executed with respect to past liabilities which is also included in the definition of the term 'loan' defined in Clause (f) of Section 2 of the Bihar Money-lenders Act 1938, It defines 'loan' as follows:--
"(f) "loan" means an advance, whether of money or in kind...... and shall include a transaction on a bond bearing interest executed in respect of past liability."
That is also the definition in Section 2 (f) of the Bihar Money-lenders (Regulation of Transactions) Act, 1939. From that definition it is quite clear that when a bond is executed in respect of past liability, that is also included within the definition of the term 'loan'. That term 'loan' came for consideration in different contexts in several cases of this Court. In the first series of cases this term 'loan' came for consideration of application of Section 7 of the above mentioned Act, 1939. Those are cases in Madho Prasad Singh v. Makutdhari Singh (1941-23 Pat LT 317) : (AIR 1941 Pat 378), Deo Nandan Prasad v. Ram Prasad (1944) ILR 23 Pat 618 : (AIR 1944 Pat 303), which is a Full Bench case and Rai Bahadur Gajadhar Prasad Sah v. Nath Mal Sah (1969 BLJR 981), which is a Division Bench case. That was also the subject-matter of consideration in a Supreme Court case Ram Nandan v. Kapildeo Ramjee (1951) ILR 30 Pat 310 : (AIR 1951 SC 155). The term 'loan' came for consideration in another set of cases with respect to Section 4 of the Bihar Money-lenders Act in A. Hussain v. J. N, Agarwala (1949) ILR 27 Pat 1187 : (AIR 1949 Pat 307) and Gupteshwar Singh v. Jainath Singh (1960 BLJR 8). In all these cases it was found that the term 'loan' also included a transaction on a bond in respect of past liability.
13. In the document in question in this appeal there is a new contract with a promise to pay and also a promise to pay interest and therefore it is not a mere acknowledgment of past dues, but it is a transaction of a 'loan' within the definition of the term given in the Bihar Money-lenders Act. Therefore, the contention of the learned counsel for the appellant that this document is not a handnote, cannot be accepted. The other contention of the learned counsel that it is not a promissory note has also no merit because of the definition of the term 'promissory note' in Section 4 of the Negotiable Instruments Act which defines as follows.-
"4. Promissory note. A "promissory note" is an instrument in writing...... containing an unconditional undertaking, signed by the maker, to pay a certain sum of money only to, or to the order of, a certain person, or to the bearer of the instrument."
14. The document in question of the present appeal, namely, Ext. 1 fulfills all the requirements because (i) it is an instrument in writing, (ii) there is an unconditional undertaking to pay, (iii) it has been signed by the maker and (iv) it has to pay certain definite sum of money to a certain person, namely, the plaintiff. Learned counsel for the appellant has relied upon an authority of this Court in Ram Narayan Bhagat v. Ramchandra Singh (1962 BLJR 411) : (AIR 1962 Pat 325) to contend that in this document (Ext. 1) there is no stipulation that it is payable on demand and that therefore falls short of the requirement to be a promissory note. But I do not find this authority in support of the proposition that the learned counsel has tried to contend. That was rather a case in which the question was as to whether the document of that case was a 'bond' or 'promissory note' within the meaning of term used in the Stamp Act. A question arose as to whether the amendment made in Section 13 of the Negotiable Instruments Act in the definition of "negotiable instrument" introduced by the Amendment Act VIII of 1919 would come in it to enlarge the definition of 'promissory note' in Section 2 (22) of the Stamp Act. It was held in that case that the definition given in Section 2 (22) of the Stamp Act referred to only Section 4 of the Negotiable Instruments Act, and not Section 5, and therefore the definition given in Section 2 (22) of the Stamp Act could not be enlarged by the amendment made in Section 13 of the Negotiable Instruments Act by Act VIII of 1919. It was held in this case that the document was attested by a witness and that there was nothing to show that it was payable to order or to the bearer. It came within the definition of the term 'bond' defined in Section 2 (5) (b) of the Stamp Act. The point that has been tried to be contended by the learned counsel does not find support from this authority.
15. Rather, as I have discussed above, this document (Ext. 1) fulfils the ingredients of the definition of 'promissory note', as defined in Section 4 of the Negotiable Instruments Act. It also fulfils ingredients of Section 13 of the Negotiable Instruments Act which defines a 'negotiable instrument' as follows :--
"(1) A "negotiable instrument" means a promissory note, bill of exchange or cheque payable either to order or to bearer."
Explanation I appended to this section is relevant which lay down that:
"A promissory note, bill of exchange or cheque is payable to order which is expressed to be so payable or which is expressed to be payable to a particular person, and does not contain words prohibiting transfer or indicating an intention that it shall not be transferable."
16. It may be mentioned at this place that the definition of the term was changed by Amendment Act VIII of 1919. Before this Amendment Act it was necessary to make the instrument negotiable to insert the words of negotiability, such as, 'order' or 'bearer'. But the effect of the amendment is, and specially by inserting Explanation I mentioned above to treat all pro notes and bills of exchange as negotiable instruments, irrespective of the fact that whether the recital to that effect is present on the face of the document, unless there are words in it to prohibit transfer. In the present case in the document in question there are no words to prohibit transfer and therefore in view of that Examination, it is covered within the definition of 'negotiable instrument'. Therefore, the contention of the learned counsel for the appellant that this document in question is neither a handnote, nor a promissory note, nor a negotiable instrument, is wholly untenable. This document fulfils the definition of those terms.
17. In view of the fact that it also fulfils the definition of 'negotiable instrument', the plaintiffs shall have the advantage in the present case of the presumption drawn under Section 118 of the Negotiable Instruments Act that there is a presumption of consideration for the execution of this document. In this connection an authority of this Court in Satyanarain Singh v. Janardan Kanth (1980 BBCJ (HC) 533): (AIR 1980 Pat 277) may be referred to with advantage. In this instrument (Ext. 1) I find that after accounting of the previous dues certain sum was ascertained, and by this document there was a new contract to pay that amount. Thus, it will be deemed to be a notional advance of a loan and a fresh contract to pay at the time of execution of this document (Ext. 1). In such a case the plaintiffs need not have to prove the passing of the consideration of the original loan. Therefore, when the plaintiffs have proved the execution of this document (Ext. 1), which has been proved to be a genuine document, there will be presumption of passing of consideration money in it unless the defendant would prove want of consideration vide Satyanarain Singh v. Janardan Kanth (supra). Besides that, the plaintiff has pledged his oath as P. W. 5 to show the genuineness of the document and the consideration of this document, namely, the dues which have been accounted for and that after final accounting there was a contract by the defendant to pay that amount which was evidenced by Ext. 1. That evidence will be sufficient for the plaintiffs to prove their case.
18. The suit was, therefore, rightly decreed by the trial court. There is no merit in this appeal. It is dismissed with costs. Hearing fee is assessed at Rs. 51/-(fifty one).
Birendra Prasad Sinha, J.
19. I agree.