Patna High Court
Ganga Singh vs Ram Peyar Singh And Anr. on 14 January, 1972
Equivalent citations: AIR1972PAT216, AIR 1972 PATNA 216
Author: N.L. Untwalia
Bench: N.L. Untwalia
ORDER N.L. Untwalia, J.
1. This is an application by the plaintiff under Section 25 of the Provincial Small Cause Courts Act. His Suit filed against the defendant for realisation of Rs. 540/- on the basis of a hand-note, said to have been executed by Defendant No. 1, has been dismissed by the Small Cause Court Judge.
2. The plaintiff's case is that Defendant No. 1, as Karta of the joint family consisting of himself and his brother, Defendant No. 2, had taken a loan of Rs. 400/- from the plaintiff and had executed a hand-note. Both of them are liable to re-pav the amount, but they have not paid. Hence the suit.
3. The defence was that Defendant No. 1 had taken the sum of Rupees 400/- from one Kishundeo Singh and has repaid that amount to him. Because there is a litigation between the defendants and the said Kishundeo Singh the plaintiff, a friend of Kishundeo Singh, has been made to file the suit. The learned S. C. C. Judge, by committing several errors of law, has dismissed the suit. It has to be sent back for a fresh decision.
4. It appears that the learned S. C. C. Judge is not quite conversant with the law in regard to the promissory notes. Any holder of a promissory note can file a suit. It matters little that the signature of the executant of the hand note is in different ink and the body is filled up in different ink. The signature, as it is on Exhibit 2, shows that over the printed portion "Hand-note Likha So Sahi". Defendant No. 1 had signed in his own pen and had acknowledged the receipt of Rs. 400/-. He had given his thumb impression also on the hand-note (Ext. 2) and the receipt attached to the hand note (Ext. 3). On the basis of this hand-note, therefore, the plaintiff was prima facie entitled to a decree in his favour, until it was proved by the defendants that the money due under the hand-note had been paid or that the hand-note was without consideration. The onus to prove either of these two things or both was on the defendants. Once due execution of the hand-note is proved, as in this case, the very endorsement made by Defendant No. 1 shows that execution of the hand-note, it was for the defendants to prove their plea of payment or their case that the hand-note was without consideration.
5. I may point out one thing in this connection, that, the hand-note is a negotiable instrument and if a debtor merely pleads payment to the original creditor, the bona fide endorsee of the hand-note is not precluded to sue on this basis. I have stated this merely to point out the stringent law in relation, to promissory notes and the difficult position in which the defendants are in such a case. Here it is not a case of filing a suit by an endorsee of the hand-note, but, then, the holder of the hand-note is entitled to rely upon the presumptions which are in his favour under the Negotiable Instruments Act. The learned S. C. C. Judge, being oblivious of the correct position of law has made a mess of the whole discussion and has come to hold that it has not been proved that the hand-note in suit is genuine, valid and for consideration. Such a finding recorded on a mixed up consideration of the evidence adduced, without keeping in mind the correct position of law, makes the decision contrary to law. I, therefore, allow this application in revision, set aside the decision, of the court below, remand the case back to it and direct it to decide the suit afresh on the evidence already adduced, in the light of this judgment. Since the other side has not appeared to oppose this application, there will be no, order as to cost.