2000 PLP 1967 (CLC)

4. On the pleadings of the parties, learned Single Judge struck the following issues:‑‑ (1) Whether the defendants borrowed a sum of Rs.2,40,000 from the plaintiff on 1‑2‑1982 to meet the overhead expenses? (2) Whether the defendants executed a promissory note and receipt: ' on 1‑2‑1982 for Rs.2,40,000? (3) Whether the defendant No.l executed the agreement dated 28‑5‑1983 in lieu of Promissory Note dated 1‑2‑1982? (4) Whether the plaintiff changed the date of the Promissory Note and receipt from 11‑2‑1982 to 1‑2‑1982? ' (5) Whether the plaintiff is entitled to recover a sum of Rs.2,40,000 from the defendants? (6) Whether the claim of the plaintiff is false and frivolous and as both the defendants are entitled to claim special cost under section 35‑A, C.P.C.? (7) What should the decree be?

5. On assessment and evaluation of the evidence adduced by the parties learned Single Judge held that the respondents did not execute the promissory note and receipt for Rs.2,40,000 in the manner asserted by the appellant. He held that payment of consideration on account of both the documents had not, been proved and that by reason of subsequent agreement, dated 28‑5‑1983 between the parties such documents stood cancelled and were to be of no legal effect. Expressing the view that the appellant had failed to substantiate his case, learned Single Judge dismissed the suit vide judgment and decree impugned in this appeal.

6. We have heard the privilege of hearing learned counsel for the parties at quite some length and going through the relevant evidence on the record.

7. At the very outset it may be pertinent to observe that in terms of section 118 of the Negotiable Instruments Act of 1881, there is a presumption of due execution of a negotiable instrument for valuable consideration and that every such instrument was accepted, endorsed, A negotiated or' transferred for consideration. There is, moreover, a presumption that it was made or drawn on such date, which is duly recorded on such instrument. This presumption of law is nevertheless rebuttal. In the present case transaction with regard to the consideration, the sale and purchase of poultry farm for a sum of Rs.20,00,000 between the parties is not in dispute. In his evidence appellant pointedly stated that as the respondents had no funds at their disposal for the purchase of stamp duty and to meet other overhead expenses for availing of loan from I.D.B.P. they agreed to pay him only Rs.18,60,000 at the time of registration while a sum of Rs.1,40,000 remained payable. With a view to execute a sale‑deed total payment of consideration was shown at page 3 of the sale‑deed and he agreed to this arrangement, subject to the respondents executing a promissory note for Rs.2,40,000 towards advance as no amount under the agreement to sell was paid to him and Rs.1,00,000 for stamp duty and other overhead expenses. According to the appellant by reason of sheer sympathy and with a view to help the respondents he also executed an interim guarantee before I.D.B.P., for repayment of Rs.20,00,000 by mortgaging his house. Since the execution of the two negotiable instruments on which the claim is founded was not disputed by the respondents ‑a heavy burden rests upon them to rebut presumption of the payment of consideration which, however, was not discharged through. adequate evidence. During his cross‑examination appellant was consistent and straightforward by stating that out of Rs.2,40.000 a sum of Rs.1,00,000 was paid by him in cash to the respondents while balance of Rs.1,40,000 was the amount withheld by I.D.B.P. for payment to the respondents. On further probe he stated that he 'had paid Rs.1,00,000 after withdrawing it from his account in National Bank of Pakistan Shaheed‑e‑Millat Road Branch about 2/3 days before the execution of the promissory note. As the respondent's counsel insisted that the appellant be called upon to produce a certificate of withdrawal of the said amount from the bank, he was directed by the learned Single Judge to produce such certificate on the next date of hearing. On the adjourned date of hearing he produced the requisite certificate from the bank to the effect that a total amount of Rs.1,18,810.01 was withdrawn from two accounts maintained by the appellant in the month of January; 1982. A serious exception was taken to this certificate of withdrawal of amount from the bank by learned counsel for the respondents but we see no merit to the contention raised. Learned counsel was of the view that in order to prove the payment instead of certificate appellant, should have been produced the statement of account from his bank. Since the learned Single Judge had directed the submission of a certificate of withdrawal of the amount from the bank we are unable to detect any infirmity in the certificate obtained by the appellant from the Bank and produced at the trial. Even with regard to the adjustment of Rs‑1',40,000 which remained payable by the respondents at the time of execution of the sale‑deed by the respondents. we are convinced with the truth of the statement of the appellant which does not suffer from any infirmity.

8. Adverting to the stand taken by the respondents we find that they have been taking inconsistent and self‑contradictory stand from time to time. In the first instance they took the plea that the promissory note as well as receipt were executed by them on 11‑2‑1982 such date was manipulated by the appellant to represent as 1‑2‑1982 which could not be established and appears to have been not pressed. As regards the purchase of poultry birds, Suzuki van etc. respondent Mahmoodul Hassan in the first instance claimed that such items were purchased for a sum of Rs.5,00,000 from the appellant tentatively and a sum of Rs.3,00,000 was paid to him against ‑ an acknowledgement receipt. In the same breath he asserted that such price was tentatively fixed at Rs.5,40,000 and in lieu of the balance price of poultry birds and other items pronote in the sum of Rs.2,40,000 was executed. In his evidence this witness clearly admitted that the poultry farm was purchased from the loan advanced by I.D.B.P. as he did not have any money of his .; own. He candidly conceded that the stamp duty for the transaction was Rs.1,20,000 while registration fee was Rs.20,

000. He further admitted the suggestion of the appellant's counsel that a, balance of Rs.1,40,000 was payable to the appellant as correct. He claimed the payment of Rs.39,000 to the appellant against an acknowledgment receipt but did not re‑collect as to where that receipt was. He did not remember that he‑ had paid only .Rs.29,000 between 27‑12‑1982 and 21‑5‑1983 by means of cheque. Likewise he did not re‑collect that he had not made payment on 28‑5‑1983. However, he was constrained to accept that he could not pay the amount to the appellant as the steel market was very low and that he used to personally request the appellant to give him latitude in payment of balance. He was also constrained to concede that he had stated in the written statement that he could not pay the amount agreed on 28‑5‑1983 due to his financial position whereas in .the written statement of Suit No.136 of 1984 he had stated that the payment could not be made as there was some dispute over the price of poultry birds, Suzuki van etc.

9. There is another, aspect of the case namely in the agreement Exh.5/&, dated 28‑5‑1983 between the parties respondents had settled the price of birds, Suzuki van and other items at Rs.1,46,000 after adjustment of Rs.1,01,730, whereas the respondent's witness insisted that this price was settled at Rs.1,40,000 which is contradictory to the terms of an instrument reduced to writing and is hit by the provisions of Article 103 of Qanoon‑e Shahadat, 1984. Indeed this assertion as well as his statement to the effect that a sum of Rs.1,07,000 was due and payable to the appellant which could not be paid for recovery whereof Suit No. 136 of 1984 was filed against the respondents and decreed on admission. Both these statements are beyond the pleadings of the respondents and in law they cannot be permitted to lead evidence in order to contradict the terms of a written document.

10. On preponderance of evidence adduced by the parties and the position prevailing in law we are of the considered view that the learned Single Judge did not take material circumstances and evidence into consideration in its proper perspective. Evidently he took an erroneous view of the evidence which cannot be upheld. It is, thus, difficult to sustain the judgment which does not conform to the settled principles and appreciation of evidence.

11. For the aforesaid facts and reasons impugned judgment and decree is set aside and suit of the appellant is decreed with costs and interest at 14 per annum from the date of suit till payment. H.B.1./S‑247/K High Court Appeal allowed.