SHEEL ARORA Vs. SANJAY FETAH BAHADUR SRIVASTAVA

JUDGEMENT

(1.) HEARD the learned counsel for the plaintiff and defendant No. 1.

(2.) ACCORDING to the plaintiff, she advanced a loan of Rs. 3,50,000/- to one Fateh bahadur Shrivastava who executed three demand promissory notes for Rs. 1,60,000/-, rs. 1,40,000/- and Rs. 50,000/- on 3rd june, 1998 and 4th June, 1998 respectively. Fateh Bahadur died prior to the institution of the present suit. The plaintiff has therefore, filed this suit joining Sanjay Fateh bahadur Shrivastava, son of the deceased as defendant No. 1. The defendant No. 2, as stated in the title of the plaint is "unknown legal heirs and representatives of Fateh bahadur Shrivastava. "

(3.) AFTER service of writ of summons, the defendant No. 1 filed appearance and on receipt of the summons for Judgment has filed an affidavit in reply dated 13th June, 2003. In paragraph No. 2 of the affidavit in reply. the defendant No. 1 who is the son of the deceased has specifically stated that the defendant has further denied that deceased Fateh Bahadur Shrivastava took the loan as alleged by the plaintiff. In view of the denial ,of the signature on the promissory notes, the plaintiff would be required to prove that the execution of promissory notes was by late Fateh Bahadur Shrivastava. The learned counsel for the plaintiff contends that under Section 118 of the Negotiable Instruments Act, there is a presumption of consideration and therefore, the burden of proof that the deceased had not taken the loan was on the defendant No. 1 which he had got discharged and therefore, no leave tp defendant should be granted. Under Section 118, there is no presumption about the execution of a Negotiable Instrument by a person. The execution must be proved in accordance with law. Only after the execution of Negotiable instrument is proved, then the presumption of consideration would arise. In the present case, there is not only denial of the receipt of consideration but even the denial of the execution of the promissory notes. Therefore, the contention of the learned counsel for the plaintiff cannot be accepted. As the plaintiff would be required to prove the signatures on the promissory notes, triable issue arise. The defendant No. 1 would therefore, have to be granted unconditional leave to defend the suit.