Si Versus
Sm
Civil suit No.
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Date of institution
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Date of decision
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JUDGMENT
Through
the instant suit under order 37 CPC for the recovery of Rs. 40,000/- plaintiff
maintains that on 00.00.0000, the defendant who was his friend of plaintiff got
loan of Rs. 40,000/- from the plaintiff and issued a promissory note to
plaintiff. That plaintiff gave the amount before the witnesses and the same
witnesses signed the promissory note as marginal witnesses whereas, the
defendant also affixed his signatures and thumb impressions on the promissory
note. That the defendant undertook to
return the amount after one month, but
after the stipulated time, the defendant
prevaricated the matter and ultimately
refused to return the amount a week before filing of the suit.
2. On
conceding statement of learned counsel
for the plaintiff, leave to appear and
defend the suit was given to defend. Defendant filed written statement. Out of the
divergent pleadings of the parties, following issues were framed:-
Issues
1. Whether the plaintiff is entitled to decree for receipt of Rs.
40000/- under Order XXXVII of CPC on the basis of promissory note in dispute, executed by the defendant in his
favour? OPP
2.
Whether the suit is not
maintainable in its present form? OPD
3.
Whether legally the suit is not
maintainable? OPD
4.
Whether the requisite revenue tickets have not been affixed on the
disputed promissory note & receipt , hence,
the suit is liable to be dismissed? OPD
5.
Whether the defendant has not received the disputed amount from the
plaintiff and neither executed the disputed promissory note nor signed the same
rather plaintiff committed fraud with him, hence, the suit is liable to be
dismissed? OPD
6.
Whether the suit is false and
based on concocted story? OPD
7.
Whether there was never any
transaction between the parties? OPD
8.
Whether the suit of the
plaintiff is liable to be dismissed because the plaintiff filed the suit
against Sm whereas name of the defendant is Si? OPD
9.
Whether the plaintiff has filed the suit just to
harass and tease the defendant so he is entitled to special cost under section
35-A of Cr.P.C.? OPD
10.
Relief.
PROMISSORY NOTE
A written, signed, unconditional promise to pay a certain amount of money on demand at a specified time. A written promise to pay money that is often used as a means to borrow funds or take out a loan.
The individual who promises to pay is the maker, and the person to whom payment is promised is called the payee or holder. If signed by the maker, a promissory note is a negotiable instrument. It contains an unconditional promise to pay a certain sum to the order of a specifically named person or to bearer—that is, to any individual presenting the note. A promissory note can be either payable on demand or at a specific time.
The individual who promises to pay is the maker, and the person to whom payment is promised is called the payee or holder. If signed by the maker, a promissory note is a negotiable instrument. It contains an unconditional promise to pay a certain sum to the order of a specifically named person or to bearer—that is, to any individual presenting the note. A promissory note can be either payable on demand or at a specific time.
3. On 00.00.2010, the plaintiff and
marginal witnesses of promissory note namely Mm and Sn were recorded as Pw1 and
Pw2 respectively but learned counsel for the defendant sought an adjournment for cross-examination. The defendant failed to cross-examine the Pws for on
considerably long period. Ultimately, when no body appear on behalf of
the defendant despite repeated calls exparte proceedings were initiated against
him.
4. The learned counsel for the
plaintiff vide his statement closed the exparte evidence.
5. I have heard the exparte
arguments advanced by Advocate appearing on behalf of the plaintiff and perused
the record.
6. My findings on settled issues
are as under:-
Issue
No.1
7. Onus to prove this issue was
placed on the plaintiff. The plaintiff as Pw1 deposed that he had good terms
with defendant as he was his neighbor. On 00.00.0000, the defendant got loan of
Rs. 40000/- from him and issued promissory note Ex.P1. That after receiving the
amount the defendant affixed his signatures and thumb impressions on the
promissory note. That loan amount was given in presence of Mm and Sn. That both
the said witnesses also signed Ex. P1. That defendant undertook to return the amount after one month which
was not returned which necessitated the filing of the instant suit. That his suit may be decreed. Mm Pw2 fully corroborated the statement of
Pw1 and identified his signatures on the promissory note Ex. P1 as Ex. P1/1.
Similarly, Sn Pw3 fully corroborated the earlier Pws and identified his
signatures on promissory note on Ex. P1 as Ex. P1/2. The evidence on record
establishes that defendant executed the promissory note dated 00.00.0000 and
the plaintiff is entitled to recover
Rs. 40000/- on the basis of promissory note. Therefore, this issue is
decided in favour of the plaintiff.
Issue
No.2
8. The onus to prove this issue was
placed on the defendant who did not lead any evidence. Any defect
in the form of suit is not pointed out.
Therefore, this issue is decided against the defendant.
Issue
No.3
9. The onus to prove this issue was
placed on the defendant who failed to produce any evidence or point out any
legal defect in the suit, therefore, this issue is decided against the
defendant.
Issue
No.4
10. The onus to prove this issue was
placed on the defendant. The defendant failed to produce any evidence but being
a legal issue it must be answered by the court. The promissory note was executed on 00.00.0000 and revenue
ticket Rs. 2/- was to affixed on
it. The promissory note cum receipt Ex. P1 bears revenue tickets worth Rs. 6/- in
total, therefore, this issue is decided against the defendant.
Issue
No.5
11. The onus to prove this issue was
placed on the defendant. In the light of evidence discussed in detail under
issue No.1, this issue is decided against the defendant.
Issue
No.6
12. The onus to prove this issue was
placed on the defendant. In the light of evidence discussed in detail under
issue No.1, this issue is decided against the defendant.
Issue
No.7
13. The onus to prove this issue was
placed on the defendant. In the light of evidence discussed in detail under
issue No.1, this issue is decided against the defendant.
Issue
No.8
14. The onus to prove this issue was
placed on the defendant. The evidence of the parties have been discussed under
issue No.1. The defendant through his written statement took the plea that suit
was filed against Sm whereas, the name of defendant is Si. The photocopy of
National Identity Card of defendant
placed on record supports this plea. There might be any
difference in actual name and common name of defendant but service of summons
was accepted on his behalf and thereafter he contested the suit till recording
of examination in chief of the Pws. There is no doubt in the mind of the court
that defendant is the same person who
executed the promissory note Ex. P1. Suit is not liable to be dismissed due to insignificant
contradiction in the name of the defendant. Therefore, this issue is decided against the
defendant.
Issue
No.9.
15. The onus to prove this issue was
placed on the defendant who failed to produce any evidence. Therefore, this
issue is decided against the defendant.
Relief
16. In the light of what has been
discussed above, suit of the plaintiff is decreed as prayed for. Parties are
left to bear their own costs. Decree sheet be prepared. File be consigned to
the record room after its due completion.
Announced
Judge
It is certified that this judgment consists of five pages, each
page, and dictated, corrected and signed by me.
Judge
* IRRELEVANT MATERIAL SKIPED BUT NOT FICTITIOUS ONE.
*ONLY LAW POINT INVOLVED.
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