GURMAIL SINGH Vs. LAL SINGH ETC.

JUDGEMENT

(1.) The present appeal has been filed by the defendant who is aggrieved against the concurrent findings of the Courts below whereby the suit for recovery and permanent injunction filed by the plaintiff has been decreed. Plaintiff, Lai Singh filed the suit against the appellants for recovery of Rs. 3,14,465/- along with interest on the ground that the appellant and defendant No. 2, Niranjan Singh (who has not filed the appeal) had borrowed a sum of Rs. 2,50,000/- on 06.08.2002 from the plaintiff for their business of brick-kiln in the presence of the witnesses and in return, executed pro-note receipt dated 06.08.2002 in favour of the plaintiff in the presence of the witnesses, Gurminder Singh and Teja Singh. Despite the demand for the said amount along with interest, it was not returned and notice dated 23.08.2003 was served upon them. Hence the present suit was filed on 05.09.2003. The suit was contested by the defendants on various grounds including maintainability, locus standi, limitation and on merits, it was pleaded that the defendants had never borrowed any amount as alleged in the plaint and in fact, the pro-note and the receipt were forged and fabricated documents and both the defendants had filed separate suit for injunction against the plaintiff restraining the plaintiff from getting the signatures on the blank papers with the help of police officials. On the basis of the pleadings, the trial Court framed the following issues:

(2.) After taking into consideration the five witnesses produced by the plaintiff and four witnesses produced by the defendants, the trial Court came to the conclusion that the attesting witnesses, Teja Singh and Gurminder Singh and the scribe, Jaswant Kaur had proved that a sum of Rs. 2,50,000/- was borrowed from the plaintiff, Lal Singh in the presence of the witnesses after admitting the pro-note (Exhibit P3) and receipt (Exhibit P4) as correct and put their signatures in the presence of the witnesses. Even opinion of the hand-writing expert, PW5 was that the disputed signatures of both the defendants on the pro-note and receipt were similar to the signatures of the defendants. It was noticed that the defendants had moved an application under Order 6 Rule 17 CPC to take the plea that the signatures were taken on blank papers with the help of the police officials but the said application was dismissed. The filing of the civil suits by the defendants dated 05.04.2005 (Exhibit P39) and the certified copy of the judgment (Exhibit P4) was also taken into consideration whereby the civil suits for injunction filed by the defendants separately were dismissed. The trial Court also noticed discrepancies in the statements of the witnesses but noticed that a clarification had been given subsequently and was swayed by the fact that the photographs of the defendants were also affixed on the pronote, and therefore, the minor discrepancies in the pro-note regarding the place and time of execution were held to be minor variations. The fact that Gurmail Singh had taken a contradictory plea whereby he denied his signatures on the pro-note and the receipts in the written statement and his stand in the affidavit that the signatures were obtained forcibly was also noticed. Accordingly, keeping in view the judgment of the Hon'ble Supreme Court in the case of Mallavarapu Kasivisweswara Rao v. Thandik-onda Ramulu Firm and others, 2008 7 SCC 618on the issue of presumption of existence of the consideration passing on the execution of the pro-note under Section 118 of the Negotiable Instruments Act, the trial Court came to the conclusion that consideration had passed and the defendants were liable to return the amount. However, the rate of interest was reduced to 12% from the date of execution of the pro-note till decretal of the suit and further @ 6% per annum as future interest from the date of decretal amount till realisation of the principal amount. The relief of injunction had not been pressed and no issue having been framed to that effect, was decided in favour of the plaintiff and against the defendants. On the question of limitation, since the suit was filed within 3 years, it was, accordingly, held that the provisions of limitation and locus standi of the plaintiff to file the suit was up-held. Accordingly, the judgment and decree was passed on 18.03.2009.

(3.) An appeal was filed before the lower appellate Court which was dismissed on 29.04.2010. Resultantly, the present regular second appeal has been filed. The counsel for the appellant has vehemently contended that the Courts below have failed to take into consideration legal notice dated 01.08.2002 (Exhibit D1) which was proved by the defendants by examining Basant Pal, Clerk of Sh. D.P. Bhardwaj to point out that a notice dated 01.08.2002 had been sent to them prior to the alleged date of pro-note and receipt on 06.08.2002. He has further contended that the discrepancies in the statements of the witnesses had been noticed by the Courts below but in spite of that, a decree had been passed against the defendants.