HARI PANDA Vs. GINI KAMBU

JUDGEMENT

(1.) The plaintiff is the petitioner in this Civil Revision directed against an order of the learned Small Cause Court Judge, Berhampur, who passed a decree in favour of the plaintiff for Rs. 72/- plus interest but disallowed his claim for Rs. 216-14-0 on the basis of a promissory note D/- 3-11-1955 executed by the defendants in favour of the plaintiff for Rs. 180/-. Before the suit was filed, the plaintiff had served on the defendants a notice of demand to which however they sent no reply. The suit was accordingly filed in 1957 for recovery of the said sum of Rs. 215-14-0 on the basis of the promissory note as aforesaid. The defendants who are brothers, filed written statement in which they took the defence that while admitting the execution of the said promissory note, they received only Rs. 60/- for consideration and not Rs. 180/- which was mentioned in the said promissory note.

(2.) At the trial before the learned Small Cause Court Judge, the plaintiff called two witnesses including himself. P.W. 2 who was the scribe of the document deposed that about Rs. 70/- was paid at the time of the execution of the said promissory note and the balance was agreed to be paid later on by the plaintiff. The defendants called three witnesses including defendant No. 1. D.Ws. 2 and 5 were the attesting witnesses to the promissory note. The defence case as purported to be established by these witnesses was that the defendants received only Rs. 60/- as consideration and not Rs. 180/- as mentioned in the promissory note. On this evidence the learned Small Cause Court Judge disallowed the plaintiffs claim for Rs. 215-14-0 as claimed by him in the plaint, the said sum being inclusive of the alleged principal amount of Rs. 180/- and interest. The learned Small Cause Court Judge instead granted, in favour of the plaintiff, a decree for Rs. 72/- including interest on the basis that the defendants received only Rs. 60/- and not Rs. 180/- as aforesaid.

(3.) Mr. H. G. Panda, learned counsel appearing for the plaintiff-petitioner contended that it was not normal human conduct to silently wait for two years since the execution of the promissory note, for the alleged balance of the consideration money for the said promissory note which, according to the defendants, was never paid by the plaintiff. The other circumstance, on which the learned Counsel relied, was that even after notice before the suit, the defendants did not care to reply and take the defence which they subsequently took in the written statement after the suit was filed. This, indeed, shows that the subsequent defence taken by them was a mere after-thought and therefore this defence should not have been accepted by the learned Small Cause Court Judge. In support of his contention, the learned counsel relied on the provisions of Section 113 of the Negotiable Instruments Act which provides that until the contrary is proved, the presumption shall be made that every negotiable instrument was made or drawn for consideration. Even so, it was open to the learned Small Cause Court Judge to accept the evidence of the defence witnesses and grant a decree only for the amount proved to have been actually paid by the plaintiff to the defendants as consideration for the promissory note in suit. It appears that the learned Small Cause Court Judge took the view that the defendants had succeeded in rebutting the presumption which the plaintiff claimed in his favour under Section 118 of the Negotiable Instruments Act, The learned Counsel for the plaintiff also cited a decision of the Bombay High Court in Tarmahommed Haji Abdul Rehman v. Tyeb Ebrahim Bharamchari, AIR 1949 Bom 257 where it was held that Section 118 raises a statutory presumption in favour of there being consideration for every negotiable instrument. The Bombay High Court made it perfectly clear that if a particular consideration is mentioned in the negotiable instrument and that consideration is found to be false and some other consideration is set up, that is a factor which the Court would take into consideration in deciding whether the defendant has discharged the burden cast upon him by Section 118. It is one thing to say that the plaintiff has failed to prove a particular consideration for a certain promissory note; it is entirely different thing to say that it was proved that there was no consideration at all for the promissory note. In the present case the learned Small Cause Court Judge, on appreciation of evidence, was right in granting a decree for the amount of consideration proved to have been actually paid as consideration for the promissory note. There is no dispute as to the position in law that the plaintiff is entitled to the benefit of such presumption under Section 118 of the Negotiable Instrument Act. The presumption that is raised under Section 118 is not in respect of the consideration mentioned in the negotiable instrument. The presumption is in favour of there being a consideration for the negotiable instrument, any consideration that is a valid consideration in law. The question is whether on the evidence, the learned Small Cause Court Judge was justified - and I think, he was justified -- in accepting the defence case that only Rs. 60and not Rs. 180/- as mentioned in the promissory note was actually paid. The Bombay decision cited above is no authority for the proposition, -- sought to be urged on behalf of the plaintiff, --that every negotiable instrument is made or drawn for consideration mentioned in the negotiable instrument. There is no warrant for importing into Section 118 words which the legislature did not think fit to incorporate in that section. With great respect, I agree with the principles underlying the Bombay High Court decision.