LexKAPIL KUMAR versus RAJ KUMAR
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A B C D E F G H 554 SUPREME COURT REPORTS [2022] 13 S.C.R. KAPIL KUMAR v. RAJ KUMAR (Civil Appeal No. 5854 Of 2022) OCTOBER 14, 2022 [M. R. SHAH AND KRISHNA MURARI, JJ.] Negotiable Instruments Act, 1881 – ss. 4 and 118 – Promissory note – Appellant instituted recovery suit against respondent contending that the latter borrowed Rs. 1 lakh from him and also executed a pro-note in favour of appellant – Respondent denied execution of pro-note and took the stand that no loan was taken by him – Trial court decreed the suit – Decree upheld by First Appellate Court – Second appeal allowed by High Court on ground that attesting witness to the pro-note was not examined and therefore, content of the pro-note was not proved – Held: High Court erred in upsetting the findings of facts recorded by trial court and confirmed by First Appellate Court – Even the substantial question of law framed by the High Court cannot be said to be as such a question of law much less substantial question of law – On merits also, the signature of respondent on the pro-note was established and proved and even execution of the pro-note was established – In the circumstances, non-examination of the witness to the pro-note cannot be held against the appellant – There is presumption of consideration in a negotiable instrument – Such presumption may be rebutted, however, no rebuttal evidence led by the respondent – Impugned judgment of High Court accordingly unsustainable both on law as well as on facts – Code of Civil Procedure – s.100 – Second Appeal. Code of Civil Procedure – s.100 – Second Appeal – Unless concurrent findings recorded by the courts below are found to be perverse, the same are not to be interfered with by the High Court u/s.100 CPC. Allowing the appeal, the Court HELD:1. There were concurrent findings of facts recorded by the Trial Court as well as the First Appellate Court on execution [2022] 13 S.C.R. 554 554 A B C D E F G H 555 of pro-note by the defendant in favour of the plaintiff. The said findings were on appreciation of entire evidence on record. Therefore, unless the concurrent findings recorded by the courts below were found to be perverse, the same were not required to be interfered with by the High Court in exercise of powers under Section 100 of CPC. Even the substantial question of law framed by the High Court cannot be said to be as such a question of law much less substantial question of law. It appears that what was considered by the High Court was whether the plaintiff has proved the execution of pro-note and the receipt by leading cogent evidence. The aforesaid can be said to be a question of facts and cannot be said to be a question of law much less substantial question of law. The High Court committed a very serious error in upsetting the findings of facts recorded by the trial court confirmed by the First Appellate Court on execution of pro-note by the defendant in favour of the plaintiff. [Para 5.1][559-D-G] 2. Even otherwise on merits also, the impugned judgment of the High Court is unsustainable. The signature of the defendant on the pro-note has been established and proved by the plaintiff by examining the handwriting expert-PW2. No contrary evidence has been led by the defendant to disprove his signature on the pronote. Even the execution of pro-note has been established by the plaintiff by examining the deed writer-PW3. In view of the facts and circumstances of the case emerging from the evidence on record, non-examination of the witness to the pro-note cannot be held against the plaintiff. It is noted that as per the provision of Section 118 of the NI Act there is a presumption of consideration in the negotiable instrument [Section 118(a)]. Though such presumption may be rebutted, however, no rebuttal evidence is led by the defendant. Therefore, the High Court erred in allowing the second appeal and quashing and setting aside the decree passed by the Trial Court confirmed by the First Appellate Court. [Paras 6 and 6.1][559-G-H; 560-A, B-D] M.S. Narayana Menon alias Mani v. State of Kerala and Anr. (2006) 6 SCC 39 : [2006] 3 Suppl. SCR 124 – referred to. KAPIL KUMAR v. RAJ KUMAR A B C D E F G H 556 SUPREME COURT REPORTS [2022] 13 S.C.R. Mirza Gorgani v. (Firm) Bhola Mal Nihal Chand AIR 1934 Lahore 293 – referred to. Case Law Reference [2006] 3 Suppl. SCR 124 referred to Para 4.3 CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5854 of 2022. From the Judgment and Order dated 05.08.2019 of the High Court of Punja
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