A.K. Shrivastava, J.
1. Feeling aggrieved by the judgment and decree passed by the two Courts below dismissing his suit, the appellant/plaintiff has preferred this second appeal under Section 100, CPC.
2. In brief, the suit of the plaintiff is that the defendant/respondent took a loan of Rs. 2,000/- from the plaintiff on 5.4.1978 and executed a promissory note in his favour. It was agreed between the parties that defendant shall pay interest at the rate of Rs. 1% per month and agreed that whenever the plaintiff will demand the principal amount and the amount of interest, the same shall be paid by the defendant. The plaintiff made demand to pay the principal amount as well as interest several times to the defendant, but, he avoided to repay the said amount. Thus, the plaintiff is entitled to realise Rs. 2,000/- principal amount and the interest at the rate of Re. 1% per month w.e.f. 5.4.1978 to 4.4.1980 i.e. for 36 months which comes to Rs. 720/-. In this manner a suit for realization of Rs. 2720/- was filed by the plaintiff on 4.4.1981.
3. The defendant/respondent by filing written statement denied the plaint averments. In para 1 it has been specifically denied that defendant took a loan of Rs. 2,000/- and on that date executed a promissory note and has accepted the interest at the rate of Re. 1%. In para 2 it has been pleaded by the defendant that the plaintiff is having one field. However, he does not know how the land is to be cultivated, as a result of which since defendant is an agriculturist, he (plaintiff) requested defendant to make the land cultivable. Plaintiff pacified the defendant that after making the land cultivable, he may cultivate the same for five years and the plaintiff will give half share of the total agricultural produce to him every year. It was also stated by the plaintiff that the entire expenses to develop the land and make the same to be cultivable, shall be born by him (plaintiff). Plaintiff also accepted that he shall bear the cost of fertilizer. In order to meet out these expenses, plaintiff gave Rs. 2,000/- to the defendant. The defendant being an illiterate rustic villager, trusted the pacification stated to him by the plaintiff. In order to develop the land of plaintiff, whatever the amount was given by the plaintiff, the same was taken by the defendant. The plaintiff obtained signatures of the defendant on some papers. The defendant developed the land of the plaintiff and made it cultivable. He also cultivated the said land for two years. However, in third year, the plaintiff took the possession of the land from the defendant and gave it to his son Shyamlal to cultivate the same. However, when defendant requested plaintiff to clear the account, he (plaintiff) told that he is not required to pay anything to the defendant.
4. By amending the written statement, para 6-A has been added in the written statement and it has been pleaded that defendant is an aboriginal agriculturist and is having less than two hectare of unirrigated land. Therefore, whatever the amount has been given to him prior to 16.8.1982, the same cannot be realised by the plaintiff and no suit can be filed for its realisation In view of provisions of M.P. Gramin Rln Vimuktl Adhinlyam, 1982. This plea has been raised as an alternative plea.
5. Learned trial Judge on the basis of the evidence placed on record framed specific issue 1(a) and (b) in regard to execution of the promissory note dated 5.4.1978 and giving loan of Rs. 2,000/- as well as entitlement of interest at the rate of Re. 1% per month. The trial Court on the basis of the evidence placed on record while deciding this issue specifically held that the execution of promissory note dated 5.4.1978 and obtaining loan of Rs. 2,000/- is not proved and, therefore, plaintiff is not entitled to realize interest at the rate of Re. 1% from the defendant.
6. Learned trial Judge on the basis of the evidence placed on record, dismissed the suit of the plaintiff.
7. The plaintiff, feeling aggrieved by the judgment and decree passed by learned trial Judge dismissing his suit, preferred an appeal which has been dismissed by the impugned judgment and decree.
8. In this manner, this second appeal has been filed by the plaintiff assailing the concurrent judgment of learned two Courts below passed against him dismissing his suit.
9. This Court on 17.2.1994 while admitting the second appeal framed following substantial question of law:
Whether the Courts below were not right in drawing the statutory presumption of passing consideration as provided under Section 118 of the Negotiable Instruments Act and not passing a decree on the basis of the promissory note Ex. P/1.
10. Shri V.P. Verma, learned Counsel for the appellant, by placing reliance on the pleadings made in para 2 of the written statement has argued that since the defendant himself has admitted the execution of the document of promissory note Ex. P/1, therefore, there is a statutory presumption of passing consideration under Section 118 of (The) Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act'). According to learned Counsel, since there is a statutory presumption in favour of the plaintiff and there is no cogent evidence on behalf of the defendant rebutting statutory presumption, the two Courts below erred in substantial error of law1 In dismissing the suit of plaintiff. In support of his contention, learned Counsel for the appellant has placed reliance on the decision of the Supreme Court K.P.O. Moideenkutty Hajee v. Pappu Manjooran : [1996]2SCR227 . Learned Counsel by placing reliance on decision of the Privy Council, Abidel Hinnawl Yacoub v. Fahmi Abu el Huda el Farugi AIR 1936 Privy Council 139, has submitted that passing of consideration mentioned in promissory note if proved. Inadequacy of consideration afforded would be insignificance. By placing reliance on another decision of Privy Council R. Shanmuga Rajeswara Sethupathi v. Chidambaram Chettiar AIR 1938 Privy Council 123, it has been submitted by learned Counsel that having admitted the execution of the promissory note, the onus is upon the defendant to prove that no consideration was passed.
11. Having heard learned Counsel for the appellant and examining minutely the promissory note Ex. P/1 and also giving emphasis on the judgment passed by two Courts below, I am of the view that this appeal deserves to be dismissed.
REGARDING SUBSTANTIAL QUESTION OF LAW:
12. Before I may advert myself on the pleadings of the parties and promissory note, it would be germane to put emphasis on the broader aspect to the principles of Section 118 of the Act which on bare perusal of the section involves thus:
(1) There is a presumption under this Act that consideration has passed for execution of document;
(ii) in order to rebut the presumption the defendant has to prove that no consideration has passed;
(iii) if it is found that some form of consideration has passed that is sufficient and it is necessary for the plaintiff to prove that particular consideration mentioned in the document has passed;
(iv) even if the plaintiff fails to prove that particular consideration mentioned in the promissory note has passed, still presumption continues under Section 118 of the Act and the plaintiff is entitled to succeed on the basis of this presumption unless the defendant rebuts the presumption by establishing that no form of consideration has passed; and
(v) The presumption can be rebutted by producing definite evidence that no consideration has passed or by relying on the facts and circumstances of the case as well as the flaws in the evidence of the plaintiffs side.
On the basis of the above elucidated principles, I shall now examine the given case in hand.
13. On examining the promissory note Ex. P/1 dated 5.4.1978, it is revealed that the defendant took a loan of Rs. 2,000/- for purchasing the fertilizer and he executed and signed the promissory note and accepted that whenever the amount shall be demanded by the plaintiff, the same will be paid to him along with interest at the rate of Re. 1% per month. One important fact is noticed that in the promissory note it has been mentioned that the same has been written by the defendant himself. The question that hinges is that whether promissory note Ex. P/1 has been ever executed by the defendant and he put his signature and wrote document Ex. P/1 himself because, before placing reliance on the statutory presumption under Section 118 of the Act, the execution of the document of pronote by defendant is a pre-requisite condition.
14. In para 1 of the written statement the defendant has specifically denied the execution of promissory note dated 5.4.1978 and obtaining the loan Rs. 2,000/- as well as accepting the interest at the rate of Re. 1% per month. In very specific words the defendant has pleaded in this paragraph that the entire averments in para 1 of the plaint are emphatically denied. If certain circumstances which transpired between him and plaintiff has been pleaded in para 2 and in a casual manner if it has been stated in para 2 of the written statement that plaintiff might have obtained signatures on some papers, would not ipso facto, deem that defendant had admitted the due execution of the promissory note Ex. P/1. Whatever has been pleaded by the defendant in para 2 of the plaint would not wash out his specific denial of execution of promissory note dated 5.4.1978 and obtaining loan of Rs. 2.000/-as well as accepting to pay interest at the rate of Re. 1% per month. Apart from this, learned trial Judge on the basis of the pleadings of the parties framed specific issues 1 (a) and (b) in that regard. Thus, the plaintiff was fully aware that what type of evidence he has to adduce.
15. On x-raying the record of learned trial Court nowhere it is gathered that plaintiff ever filed any application under Order 14, Rule 5, CPC praying to the court that issues 1(a) and (b) should be amended because the defendant has allegedly accepted the execution of promissory note and thus, there is a statutory presumption under Section 118 of the Act and it is for the defendant to prove that he has repaid the loan or the consideration was not passed to him. The plaintiff adduced his evidence in regard to the due execution of the promissory note Ex. P/1. Learned trial Judge on the basis of the evidence placed on record came to hold that defendant is an illiterate person and he is literate to the extent that he could only sign. The plaintiffs own witness P.W. 2 Lakhme Singh has stated that defendant can only sign and he cannot write. At this juncture, it would be condign to put emphasis on the document of promissory note Ex. P/1 In which it has been mentioned that document has been written by defendant himself.
16. The stand of defendant is that he is an illiterate person and he is literate to the extent that he could only sign. The plaintiffs own witness P.W. 2 Lakhme Singh says that defendant cannot write, therefore, learned two Courts below on the basis of the appreciation of evidence rightly arrived at a conclusion that defendant executed promissory note Ex. P/1 and obtained loan of Rs. 2,000/-is not proved. This is a pure finding of fact based on correct appreciation of evidence which cannot be assailed and set aside in this second appeal.
17. The question of statutory presumption under Section 118 of the Act would arise only if the execution of the promissory note is admitted. Since, execution of the same is not proved, there cannot be any presumption. Apart from this, the presumption arising under this section can be rebutted even by circumstantial evidence. In the present case, both the parties have adduced evidence in regard to the execution of the promissory note. The evidence of plaintiff has not been relied by the two Courts below, While appreciating the evidence, learned two Courts below also arrived at a pure finding of fact that consideration of Rs. 2,000/- was passed to the defendant, is not at all proved, therefore, 1 am of the view thai there cannot be any presumption under Section 118 of the Act in the facts and circumstances of the present case.
18. I have already held hereinabove that the execution of promissory note is not proved. The defendant in para 1 of his written statement has specifically denied its execution as well as passing of consideration of Rs. 2,000/- to him. The single Bench of this Court in the castof Bulkiethan Brothers (Firm) v. Pradeep Kumar 1981 (1) MPWN 247, has specifically held that if the defendant has not admitted the execution of promissory note of the payment of consideration and has only mentioned that the signatures were taken by the father of the plaintiff under such circumstances the Court below was not correct in observing that in view of the presumption under Section 118 of the Act, the plaintiff need not supply the particulars and the burden is on defendant to prove the payment of consideration, in the case of Shyam Sunder v. Mathura Prasad 1931 JLJ Short Note 22, it has been held by the single Bench of this Court that merely pointing out to the statement of the defendant regarding admission of his sic natures on the promissory note cannot, in the peculiar facts and circumstances of the case, be regarded to be tantamount to its execution. In the present case also merely explaining the circumstances in para 2 of the written statement, it would not tantamount to the execution of promissory note specially when in para 1 of the paint its execution has been emphatically denied by the defendant. In these circumstance no ad mission of the execution of promissory note cannot be spelled out from the written statement of the defendant and, therefore, it was for the plaintiff to prove its due execution. The two Courts below on appreciation of the evidence have already held that the execution of promissory note is not proved.
19. Since I have already upheld the finding of learned two Courts below that the execution of promissory note is not proved and the defendant has not admitted its execution, therefore, the decision of the Supreme Court, K.P.O. Moideenkutty Hajee AIR 1996 SC 3356 (supra) is not applicable. Similarly the decision of Privy Council, Adib el Hinnawi AIR 1936 PC 139 (supra) and R. Shanmuya Rajeswara Sethupathi AIR 1938 PC 123 (supra) are not applicable because in all these three cases, the execution of promissory note was found to be proved.
20. The substantial question of law framed by this Court while admitting this second appeal is thus answered that the two Courts below were right in not drawing the statutory presum/A/1, which ption of passing consideration as provided under Section 118 of the Act. in the peculiar facts and circumstances because execution of promissory note is not proved and, therefore, rightly dismissed the suit of the plaintiff.
21. Resultantly, this appeal is found to be bereft of any substance and the same is hereby dismissed. Since none has appeared to oppose on behalf of the respondent, the respondent Is not entitled for any cost.