TARMAHOMED HAJI ABDUL REHMAN Vs. TYEB EBRAHIM BHARAMCHARI

JUDGEMENT

(1.) This is an appeal from a judgment of Mr. Justice Tendolkar by which he passed a decree for Rs. 8,000 in favour of the plaintiff. The plaintiff filed a suit on three hundis, two dated April 4, 1947, payable 90 days after the date of the hundis, and the third hundi dated April 29, 1947, for Rs. 3,000 payable 68 days after the date of the hundi. The defence of the defendant was that these hundis were passed for accommodation. At the trial three issues were raised: (1) Whether the hundis were passed for the accommodation of the plaintiff as alleged in para. 2 of the written statement? (2) What relief is the plaintiff entitled to ? and (3) Whether the defendant is entitled to the return of the said three hundis as alleged in para. 6 of the written statement and counter-claim ?

(2.) The learned Judge came to the conclusion that the defendant had failed to prove that the hundis in suit were passed for accommodation. It was then argued before him that inasmuch as the plaintiff had put forward as the consideration of the hundis something different from what was mentioned in the hundis themselves, the presumption which arises under Section 118 of the Negotiable Instruments Act, 1881, was rebutted and the burden was upon the plaintiff to prove that there was consideration for these hundis. The hundis mention the amount as the consideration for value received in cash this day, i.e. cash received on the day on which the hundis were -executed. But at the hearing the defendant admitted that the consideration mentioned in the hundis was not correct and the real consideration was something different from what was mentioned in the hundis. Now, Section 118 of the Negotiable Instruments Act raises a statutory presumption in favour of there being consideration for every negotiable instrument, and the language of the section is that "Until the contrary is proved, the following presumptions shall be made: (a) that every negotiable instrument was made or drawn for consideration..." Those are the material words with which we are concerned. Therefore, the statutory, presumption continues until it is rebutted, and the only way it can be rebutted is by proving the contrary, viz. that the negotiable instrument was without consideration.

(3.) Now, what was urged before Mr. Justice Tendolkar and what has been urged before us is that as soon as it is shown that the consideration mentioned in the negotiable instrument is not the real consideration, the presumption under Section 118 is Tebutted and it is for the plaintiff who is suing on the negotiable instrument to prove what the real consideration was. Looking to the plain language of the section, it is impossible to accept that contention, because 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 which is a valid consideration in law. Mr. Purshottam for the appellant wants us to read the section as if it were worded thus : That every negotiable instrument was made or drawn for consideration mentioned in the negotiable instrument. There is no warrant for importing into the section words which the Legislature did not think fit to incorporate in that section. Two judgments of the Lahore High Court have been relied upon for the purpose of putting this interpretation upon the section. One is Mt. Zohra Jan V/s. Mt. Bajan Bibi (1915) P.R. No. 48 of 1915 (Civil) and the other is Sundar Singh V/s. Khushi Ram. [1927] A.I.R. Lah. 864 With very great respect to the Lahore High Court, the learned Judges have not attached sufficient importance to the plain language of the section and have more been carried away with the question of appreciation of evidence and the approach to the evidence led rather than the legal construction of the section in the statute. It is perfectly true that if a particular consideration is mentioned in a 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. But its is a very different thing to say that merely because the consideration mentioned in the negotiable instrument turns out to be false, therefore the statutory presumption is rebutted and the burden is thrown upon the plaintiff to prove the consideration. Mr. Justice Pal of the Calcutta High Court, although his observations are obiter in Ramani Mohan V/s. Surjya Kumar Dhar has taken a different view as to the true construction of the section from the view taken by the Lahore High Court. In our opinion, therefore, Mr. Justice Tendolkar was right in coming to the conclusion that the mere fact that the consideration mentioned in the three hundis turned out to be wrongly described did not rebut the presumption under Section 118, and the burden still lay on the defendant to satisfy the Court that there was no consideration for the three hundis.