Friday, 31 July 2015

Whether court can record further examination in chief of plaintiff?

The Counsel for the Defendants, would, however, argue that in the examination-in-chief, the Plaintiff has made no mention about the fact as to who had signed the said document and whether it was signed in his presence or that he was in a position to identify the signature appearing on the said document. According to the Defendants, this evidence ought to have come in the affidavit in lieu of examination-in-chief as is required to be filed in terms of Order XVIII Rule 4 of the C.P.C. It was argued that although the Plaintiff later on entered the witness box and his further examination-in-chief has been recorded by the Court, in which all necessary details are mentioned in relation to the suit Bill of Exchange, that evidence cannot be looked into. This argument deserves to be merely stated to be rejected. There is nothing in the amended C.P.C. which precludes the Court from recording further examination-in-chief of the Plaintiff. In the present case, recording of further examination-in-chief of the Plaintiff was necessitated as the Defendants admitted all documents relied by the Plaintiffs, except the suit Bill of Exchange. For that reason, the Plaintiff, upon entering the witness box, was first examined for the purpose of further examination-in-chief. He deposed about the details in relation to the execution of said document, whereafter the document was taken on record and marked as Exhibit P-9. Ideally, the Plaintiff could have spoken about such details in the affidavit filed in lieu of examination-in-chief itself. However, failure to mention those details in the affidavit does not preclude the Plaintiff to enter the witness box to depose further; nor does it preclude the Court from permitting the Plaintiff to lead further evidence of examination-in-chief before the Court in addition to the affidavit in lieu of examination-in-chief already placed on record, filed in terms of Order XVIII Rule 4 of C.P.C. All that the Court ought to ensure is that the Defendants get fair opportunity to cross-examine the Plaintiff on matters deposed by him in the further examination-in-chief.
Bombay High Court
Rajesh Varma vs Aminex Holdings And Investments, ... on 10 January, 2008

Bench: A Khanwilkar
Citation; AIR 2008(NOC)1385 Bom,2008 (2) BomCR 588

1. This Suit is filed against the Defendants for recovery of sum of Rs. 8,59,000/- (Rupees Eight Lakhs Fifty-nine Thousand) with further interest on the principal amount of Rs. 5,00,000/- (Rupees Five Lakhs) at the rate of 24% per annum or at such other rate as the Court may deem fit and proper from the date of filing of the Suit till payment and/or realisation and cost of the Suit.
2. The Plaintiff claims to have extended loan to Defendant No.1 in the sum of Rs. 5,00,000/ (Rupees Five Lakhs) against Bill of Exchange for the like amount upon the Defendant Nos.3 and 4 ordering them to pay to the Plaintiff or order payable on demand said sum of Rs. 5,00,000/- (Rupees Five Lakhs) for value received by the Defendant No. 1 by way of two cheques in the sum of Rs. 2,50,000/-(Rupees Two Lakh Fifty Thousand) bearing Nos.386445 drawn in favour of Defendant No. 1 on City Bank, Sir P.M. Road, Mumbai and another cheque bearing No. 190601 dated 8th May 1996 drawn in favour of Defendant No. 1 of Standard Chartered Bank, D.N. Road, Mumbai. According to the Plaintiff, the Bill of Exchange has been executed on 8th May 1996. Further, the said Bill of Exchange was accepted by the Defendant Nos.3 and 4 on the same day by endorsing their signatures thereon. The Plaintiff asserts that the Bill of Exchange was presented on 8th May 1997 to Defendant Nos.3 and 4 for payment, however, the same was dishonoured for non-payment. Consequently, the Plaintiff called upon the Defendant No. 1 to make good the amount along with interest at the rate of 24% per annum as provided in the said Bill of Exchange. It is the case of the Plaintiff that after repeated demands, the Defendant No. 1 made over cheque No. 376545 dated 7th February 1999 in the sum of Rs. 1,20,000/- (Rupees One Lakh Twenty Thousand) drawn by Defendant No. 1 in favour of the Plaintiff on Abhyudaya Co-operative Bank Ltd. towards interest. The said cheque, when presented, however, was dishonoured by the Bank on 9th February 1999 and returned with remark "Refer to Drawer" which was forwarded by the Union Bank of India to the Plaintiff along with Memorandum dated 10th February 1999. The Plaintiff further asserts that on repeated demands, Defendant No. 1 issued another cheque bearing No. 564837 dated 8th March 1999 in the sum of Rs. 5,00,000/-(Rupees Five Lakhs) drawn by Defendant No. 1 in favour of Plaintiff on Canara Bank. Even the said cheque when presented, was dishonoured and returned to the Plaintiff with Banker's remark 'for insufficient funds'. As both the cheques were dishonoured and the Defendants failed and neglected to pay the outstanding amount in relation to the stated Bill of Exchange to the Plaintiff, the Plaintiff has been driven to file the present Suit for the reliefs already referred to above which was filed on 5th May 1999. The above Suit came to be filed before this Court under Order XXXVII of the Code of Civil Procedure, 1908 ('C.P.C.'). The Plaintiff took out Summons for Judgment which came to be dismissed vide order dated 7th August 2002. The hearing of the Suit has proceeded thereafter.
3. The Defendants filed joint written statement dated 10th February 2005 to counter the case made out by the Plaintiff. The Defendants pleaded that the Suit was not maintainable in Law. It was barred by Law of Limitation. Further, the Plaintiff is engaged in money lending business without holding a valid license in that behalf. For that reason, the Suit was not maintainable in view of the provisions of the Bombay Money Lenders Act, 1946 ("Act of 1946"). To support that plea, in Paragraph 1(c) of the Written Statement, Defendants have adverted to the circumstances that would indicate that the Plaintiff has filed several criminal complaints for recovery of outstanding amount against several parties in respect of amounts lent by the Plaintiff to them on heavy rate of interest. The Defendant in Para 1(d) of the Written Statement, has asserted that the Plaintiff had also filed two criminal complaints being Nos.1068/S/2003 and 1069/S/2003 before the Additional Chief Metropolitan Magistrate of 4th Court, Girgaum, Mumbai in relation to the cheques bearing Nos.564827 and 376545 dated 8th March 1999 and 7th February 1999 for sum of Rs. 5,00,000/ (Rupees Five Lakhs) and Rs. 1,20,000/- (Rupees One Lakh Twenty Thousand) respectively, allegedly paid by the Defendants towards the principal amount of the suit Bill of Exchange and interest thereon respectively. It is then stated that the Plaintiff has already withdrawn both these complaints as Defendant No. 1 has paid the amounts of both the aforesaid cheques. It is stated that the Plaintiff has already received the entire principal amount in relation to the suit Bill of Exchange and part of the interest thereof, therefore, the present Suit for interest only is not maintainable and liable to be dismissed with costs. Besides, the Defendants assert that the Plaintiff has unlawfully and wrongfully claimed interest at the rate of 24% per annum and also interest on interest i.e. compound interest, for which reason, Suit requires to be dismissed with cost. According to the Defendants, amount of Rs. 6,20,000/- (Rupees Six Lakhs Twenty Thousand) paid by the Defendant No. 1 to the Plaintiff was paid without admitting the execution of the suit Bill of Exchange and liability therein. Moreover, the Plaintiff accepted the said amount of Rs. 6,20,000/-(Rupees Six Lakhs Twenty Thousand) towards full and final settlement of the entire claim in respect of the two complaints and also withdrew the criminal cases filed against the Defendants. The Defendants have thus denied their liability to pay any amount to the Plaintiff. The Defendants have also denied that Defendant Nos.3 and 4 are acceptors of the purported Bill of Exchange. The Defendants have denied that the Defendant No. 1 drew any Bill of Exchange for Rs. 5,00,000/-(Rupees Five Lakhs) upon Defendant No. 3 or 4 ordering them to pay the stated amount to the Plaintiff as alleged. According to the Defendants, the two cheques issued by the Plaintiff in the sum of Rs. 2,50,000/- (Rupees Two Lakhs Fifty Thousand) each in favour of Defendant No. 1 were towards repayment of the loan granted by the Defendant No. 1 to the Plaintiff. The Defendants have asserted that Defendants 3 and 4 have not endorsed their signatures on the alleged Bill of Exchange. In substance, the Defendants have denied their liability to pay any amount to the Plaintiff and claimed that the Suit be dismissed.
4. On the basis of rival pleadings, my predecessor proceeded to frame following eight issues vide order dated 30th March 2005:
1. Whether the plaintiff proves that the above suit has been filed within the limitation period?
2. Whether the plaintiff proves that he is entitled to charge interest at 24% p.a.?
3. Whether the plaintiff proves his claim?
4. Whether the defendants prove that the plaintiff is carrying on the business of money lending and the suit transaction is hit by the provisions of the Money Lender's Act?
5. Whether the plaintiff proves his claim after giving credit of amount received in criminal cases, filed by the plaintiff here against the defendants, in the court of Hon'ble Additional Chief Metropolitan Magistrate's 4th Court at Girgaum, Mumbai.
6. Whether the defendants prove that as they have already paid entire principal amount, therefore the above suit is not maintainable for interest only?
7. Whether the defendants prove that on payment of the amount of Rs. 6,20,000/- the entire claim of the plaintiff is satisfied?
8. What order?
5. The Plaintiff filed his affidavit in lieu of examination-in-chief, reiterating the stand taken in the Plaint. In his evidence, the Plaintiff has placed on record the subsequent developments regarding institution of criminal cases against the Defendant No. 2 and of withdrawal thereof on receiving the amount referred to in the two cheques. The Plaintiff has provided the break-up of his claim in Paragraph 7 of the evidence. He has computed interest at the rate of 24% from 8th May 1996 till the institution of the Suit i.e. 5th May 1999 at the rate of 24% on the principal amount of Rs. 5,00,000/-(Rupees Five Lakhs). Against that, the Plaintiff has provided adjustment of Rs. 6,20,000/-(Rs.5,00,000/-+ Rs. 1,20,000/-) received by the Plaintiff from Defendant No. 1 on 29th June 2004. The Plaintiff has included interest at the rate of 24% per annum, from the date of filing of the Suit till the amount of Rs. 6,20,000/- (Rupees Six Lakhs Twenty Thousand) was received by the Plaintiff from the Defendant No. 1 on the principal amount of Rs. 5,00,000/ (Rupees Five Lakhs), which amount has been determined as Rs. 6,18,000/-(Rupees Six Lakhs Eighteen Thousand). Having regard to the above calculation, according to the Plaintiff, the Defendants, as on August 2004, were liable to pay Rs. 8,57,000/-(Rupees Eight Lakhs Fifty-seven Thousand) and cost of the Suit in addition to the amount of Rs. 6,20,000/- (Rupees Six Lakhs Twenty Thousand) already paid by them. The Plaintiff, besides filing the affidavit of evidence, entered the witness box and in the first place, proved the suit Bill of Exchange dated 8th May 1996 as that was the only document not admitted by the Defendants. In the first place, the Plaintiff has deposed about execution of the said Bill of Exchange by Defendant No. 2 Deepak Shah, partner of Defendant No. 1 in his presence on the relevant date. He has further deposed that the Bill of Exchange was accepted by Defendant Nos.3 and 4 in his presence as acceptors. On the basis of that evidence, the suit Bill of Exchange was taken on record and marked Exhibit P-9. The Plaintiff has been cross-examined by the Defendants. The tenor of the cross-examination was to cull out information from the Plaintiff that he had given loan to Season Builders, Avani Developers, Vitthaldas Parekh, Neil Constructions. He has then deposed that he was carrying on business in buying and selling shares. It was suggested to the Plaintiff that Income-tax Returns do not reflect his business in shares, which suggestion has been denied. Suggestion is also given to the Plaintiff that he was carrying on money lending business, which has been denied. The Plaintiff, however, has admitted that he might have given loans to persons/parties other than the ones already referred to in the earlier part of the evidence. He has admitted that all loans given by him are on interest and that he did not have money lending license. The Plaintiff has also admitted that he has not stated in the Plaint that he was carrying on business. The Plaintiff, however, has explained that aspect in Para 7 of the Plaint that he was working for gain in Mumbai which means that he was carrying on business of speculation in shares. The Plaintiff was shown copy of application for withdrawal of the complaint in respect of dishonoured cheque of Rs. 1,20,000/-(Rupees One Lakh Twenty Thousand) dated 7th February 1999 (Exhibit 'P-2'). He admits the contents thereof. He has accepted that in Para 3, it is stated that the amount of Rs. 1,20,000/- was in full and final settlement of dishonoured cheque. Similarly, Plaintiff was also shown copy of the withdrawal of the complaint in respect of dishonoured cheque of Rs. 5,00,000/- dated 9th March 1999 (Exhibit 'P-4'). The Plaintiff has admitted that in Para 3 thereof, it is mentioned that the amount of Rs. 5,00,000/ was in full and final settlement of the dishonoured cheque, as mentioned in the said para. He has stated that the cheque of Rs. 5,00,000/- was given to him towards principal amount only. The Plaintiff has admitted that he has not amended the Plaint after receipt of the bank drafts in lieu of the two cheques. He has also admitted that he did not even amend the Summons for Judgment after receipt of demand drafts. The Plaintiff has, however, denied that he was pressing the original claim for the full amount despite having received Rs. 6,20,000/-(Rupees Six Lakhs Twenty Thousand). The Plaintiff was then confronted with the suit Bill of Exchange dated 8th May 1996. He has stated that the written portion of the Bill of Exchange is in the handwriting of one of the staff members of the Defendant No. 1 which was written in his presence. The Plaintiff admits that the said document is not filled by Defendant Nos.2, 3 or 4. The Plaintiff has admitted that handwritten portion in the said Bill of Exchange (Exhibit P-9) is of two persons. The Plaintiff admits that he did not know the names of those persons. He also admits that he did not object to the two staff members filling up the Bill of Exchange. The Plaintiff however asserts that the Bill of Exchange was filled up in the Office of the Defendants. The Plaintiff has then stated that the Defendants' Office is on the first floor of Kothari Mansion, Opposite G.P.O., Boribunder, Mumbai - 400 001. He stated that he was sitting in the cabin of Mahipat Shah and was not in a position to say what was the area of the Office of the Defendant. Suggestion was given to the Plaintiff that the signatures of the Defendants on the suit Bill of Exchange have been forged, which has been denied by the Plaintiff. Even the suggestion given to the Plaintiff that he himself had filled up Exhibit P-9 or some other person on his instructions, has been denied by him. The Plaintiff has also denied the suggestion that the signatures on Exhibit P-9 were not that of Defendants 2, 3 and 4. The Plaintiff has also denied the suggestion that amount of Rs. 1,20,000/-and Rs. 5,00,000/- was received in full and final settlement of his entire claim. The Plaintiff has explained that the said amount was received by him in full and final settlement of "dishonoured cheques". Suggestion given to the Plaintiff that the Office of Defendants was not on the first floor of Kothari Mansion as on May 1996 has been denied by the Plaintiff. The Plaintiff has also denied the suggestion that he was carrying on the money lending business. Plaintiff has also denied that the Defendants had not agreed to pay any interest. The Plaintiff had also denied the suggestion that amount of Rs. 1,20,000/- paid by the Defendants was not towards interest at any particular rate, but was paid as lumpsum payment. Plaintiff has explained as to what he meant by word "drew" referred to in Paragraph 3 of the affidavit of evidence. He has stated that he meant that the Defendant No. 3 "signed" the Bill of Exchange for Rs. 5,00,000/-. It appears that suggestion was given to the Plaintiff that he has mentioned in other Court proceedings that the document Exhibit P-9 was filled in by persons other than the Defendants, to which, he has answered that he cannot say that without referring to the said proceedings. The Plaintiff has admitted that amount of Rs. 5,00,000/-was towards principal amount and not towards interest. The Plaintiff has denied the suggestion that he was still claiming amount of Rs. 5,00,000/- towards interest. He has admitted that he was claiming only interest. He has denied the suggestion that his claim was false.
6. Significantly, though Defendants presented affidavit of Mahipatbhai J.Shah in lieu of examination-in-chief, however, later on chose not to examine the said witness as is recorded in the order dated 29th November 2006. In other words, the Defendants have not chosen to adduce any evidence in support of their case. Left with this situation, the matter will have to be examined on the basis of the oral and documentary evidence adduced by the Plaintiff alone.
7. Having considered the rival submissions, I shall now proceed to deal with the argument canvassed on behalf of the parties in the context of issues framed.
ISSUE NO. 1:
8. This issue has been framed essentially because of the plea taken by the Defendants in the Written Statement in Para 1(b) that the Suit is barred by the Law of Limitation. Except this bare statement, no other details are forthcoming as to why the suit claim is barred by Law of Limitation. On the other hand, according to the Plaintiff, the present Suit is filed in relation to the Bill of Exchange drawn on 8th May 1996 and in particular, on account of dishonour of the said Bill of Exchange by the Defendants on 8th May 1997. The limitation would obviously start running from the said date. The present Suit having been filed on 5th May 1999, therefore, in my view, is well within limitation.
ISSUE NO. 4:
9. The Defendants have asserted that the Plaintiff is carrying on business of money lending without holding a valid license. That plea is specifically taken in Paragraph 1(c) of the Written Statement. The Plaintiff in his oral evidence has denied that suggestion. The Plaintiff has been cross-examined. The tenor of the cross-examination is to cull out facts that the Plaintiff has given loan to Season Builders, Avani Developers, Vitthaldas Parekh and Neil Constructions and other persons/parties not specifically mentioned. This evidence does not take the matter any further for the Defendants. Inasmuch as, nothing has been brought on record to further indicate that the loans so extended were covered by definition of "loan" stipulated in Section 2(9) of the Act of 1946. On plain language of Section 2(9) of the Act, it is obvious that every loan is not covered by the provisions of that Act. There are excepted categories of loan, which are not included in the definition of the term loan for the purposes of the said Act. Significantly, the Defendants have not adduced any evidence in support of their claim. The fact that the Plaintiff was indulging in business which was covered by the provisions of the Act of 1946, ought to have been proved by the Defendants. Reliance placed on the admission of the Plaintiff in the cross-examination does not take the matter any further for the Defendants. Insofar as the present case is concerned, the Plaintiff's claim will have to be considered in the context of Bill of Exchange executed in lieu of loan amount given to Defendant No. 1 by two cheques in the sum of Rs. 2,50,000/-. If that stand of the Plaintiff is accepted, it will necessarily follow that the transaction is not covered by the provisions of the Act of 1946. Inasmuch as, Section 2(9) expressly excludes advance of any sum exceeding Rs. 3,000/- (Rupees Three Thousand) made on the basis of a negotiable instrument as defined in the Negotiable Instruments Act 1881 ('N.I. Act'), other than a promissory note. It is nobody's case that the stated Bill of Exchange (Exhibit P-9) is a promissory note. As it is purely a Bill of Exchange as is the case of the Plaintiff, it is a negotiable instrument in terms of the N.I. Actwhich transaction, therefore, will be extricated from the rigours of Act of 1946. Suffice it to observe that Issue No. 4 will have to be answered against the Defendants subject, however, to the finding to be recorded in respect of suit Bill of Exchange (Exhibit P-9).
ISSUE NOS.3, 5, 6 & 7:
10. As the matters to be discussed in the context of these four issues would be overlapping, for the sake of convenience, I am answering all the four issues together.
11. In the first place, the question is: whether the Plaintiff has proved that the Defendant No. 1 drew a Bill of Exchange for Rs. 5,00,000/ (Rupees Five Lakhs) on 8th May 1996 upon the Defendant Nos.3 and 4 ordering them to pay to the Plaintiff or order payable on demand, the said amount of Rs. 5,00,000/- for value received by the Defendant No. 1 by two Cheques bearing Nos.386445 dated 8th May 1996 for Rs. 2,50,000/-and 190601 dated 8th May 1996 for Rs. 2,50,000/-. The Plaintiff in his evidence has reiterated his case stated in the Plaint. The Defendants have admitted all the documents relied upon by the Plaintiff, except the Bill of Exchange. Insofar as the suit Bill of Exchange dated 8th May 1996 is concerned, in my opinion, my predecessor has rightly taken that document on record and marked it as Exhibit P-9 having been proved by the Plaintiff.
12. The Counsel for the Defendants, would, however, argue that in the examination-in-chief, the Plaintiff has made no mention about the fact as to who had signed the said document and whether it was signed in his presence or that he was in a position to identify the signature appearing on the said document. According to the Defendants, this evidence ought to have come in the affidavit in lieu of examination-in-chief as is required to be filed in terms of Order XVIII Rule 4 of the C.P.C. It was argued that although the Plaintiff later on entered the witness box and his further examination-in-chief has been recorded by the Court, in which all necessary details are mentioned in relation to the suit Bill of Exchange, that evidence cannot be looked into. This argument deserves to be merely stated to be rejected. There is nothing in the amended C.P.C. which precludes the Court from recording further examination-in-chief of the Plaintiff. In the present case, recording of further examination-in-chief of the Plaintiff was necessitated as the Defendants admitted all documents relied by the Plaintiffs, except the suit Bill of Exchange. For that reason, the Plaintiff, upon entering the witness box, was first examined for the purpose of further examination-in-chief. He deposed about the details in relation to the execution of said document, whereafter the document was taken on record and marked as Exhibit P-9. Ideally, the Plaintiff could have spoken about such details in the affidavit filed in lieu of examination-in-chief itself. However, failure to mention those details in the affidavit does not preclude the Plaintiff to enter the witness box to depose further; nor does it preclude the Court from permitting the Plaintiff to lead further evidence of examination-in-chief before the Court in addition to the affidavit in lieu of examination-in-chief already placed on record, filed in terms of Order XVIII Rule 4 of C.P.C. All that the Court ought to ensure is that the Defendants get fair opportunity to cross-examine the Plaintiff on matters deposed by him in the further examination-in-chief.
13. As mentioned earlier, the Defendants admitted all other documents produced on behalf of the Plaintiff on which the Plaintiff would rely. The said documents have been taken on record and marked Exhibits P-2 to P-8, which form part of the compilation. Insofar as Exhibits P-2, P-3, P-4 and P-5 are concerned, the same pertain to the two cheques in the sum of Rs. 1,20,000/-and Rs. 5,00,000/-which were issued by the Defendants but dishonoured upon presentation-in relation to which criminal action came to be instituted and eventually settled upon Defendants making payment towards full and final payment of the respective dishonoured cheque amount. Document at Exhibit P-6 is the legal notice sent to the Defendants which refers to the Bill of Exchange dated 8th May 1996. Exhibit P-7 is the complaint along with Annexures thereto from pages 14 to 25 in respect of criminal case No. 1069/S/2003 in relation to dishonoured cheque of Rs. 1,20,000/-. Exhibit P-8 at Pages 26 to 48 in the compilation of documents is the complaint along with accompaniments thereto in relation to criminal case No. 765/S/1999 in respect of dishonoured cheque of Rs. 5,00,000/-. One of the accompaniment of the said complaint (Exhibit F thereto at page 39 of the compilation) is the reply given by the Defendants sent through Advocate dated 26th March 1999. In Paragraph 3 of the said reply, it is clearly admitted on behalf of the Defendants that the Defendants have taken loan from the Plaintiff and have executed the Bill of Exchange in the year 1996. This document has been admitted by the Defendants. However, Counsel appearing for the Defendants vehemently argued that this document, which is accompaniment to the complaint of case No. 765/S/1999, cannot be looked into as it is not taken on record and separately exhibited. This argument is devoid of merits. As mentioned earlier, Exhibit P-7 and Exhibit P-8 are copies of the two separate complaints along with the annexures or accompaniments thereto filed by the Plaintiff in relation to two dishonoured cheques.
The said documents have been marked as Exhibit P-7 and P-8 respectively along with its accompaniments. The accompaniments to each of this complaint form part of the record. Instead of describing those documents as Exhibit P-7 collectively and P-8 collectively, it has been recorded as Exhibits P-7 and P-8 only. The Defendants cannot take advantage of such obvious error committed by the Officer of this Court. If I may say so, it is a clerical error committed by the Officer of the Court. The fact that the said document at Page 39 of the Compilation of the documents is already on record before this Court and is an accompaniment of the complaint in relation to criminal case No. 765/S/1999 in the form of Exhibit F thereto, is not in dispute at all. It is too late in the day for the Defendants to make grievance that the said document cannot be looked into, having already admitted the same on the earlier occasion.
14. Assuming that the hairsplitting argument of the Defendants were to be entertained, at the hearing, the Counsel appearing for the Defendants was told that he was free to make application as was advised in the context of Exhibit P-8 and its accompaniments; and in the event his contention was to be accepted, the Court would consider of permitting the Plaintiff to adduce further evidence if so requested by the Plaintiff, to separately bring on record the said letter dated 26th March 1999 containing admission of the Defendants as referred to earlier. The Counsel for the Defendants, however, chose not to avail of that option.
15. As mentioned earlier, in my opinion, it is misdescription of the documents at Exhibits P-7 and P-8, instead of Exhibits P-7 collectively and P-8 collectively. On the other hand, the record indicates that the Defendants have admitted complete set of documents included in the compilation of documents tendered on behalf of the Plaintiffs, except the original Bill of Exchange. Thus understood, in view of the admission of the Defendants that they have executed Bill of Exchange, no further enquiry would be necessary.
16. However, as is noted earlier, the Plaintiff has already proved the execution of the Bill of Exchange on 8th May 1996 by Defendant No. 1 for consideration. It is only after details of such execution was spoken by the Plaintiff, my predecessor advisedly took that document on record and marked it as Exhibit P-9. Once it is found that this document is proved in evidence, it necessarily follows that the Plaintiff has established his case to that extent.
17. In the Written Statement filed by the Defendants, in the first place, the Defendants disputed having executed any Bill of Exchange. That plea will have to be discarded for two reasons. Firstly, because the Plaintiff has spoken about the details of execution of the said Bill of Exchange. That evidence has not been shaken at all. The original document has been placed on record which indicates that the same has been duly signed by Defendant No. 2 on behalf of the Defendant No. 1 and accepted by Defendant Nos.3 and 4 respectively. The signatures of Defendant No. 2, Defendant No. 3 and Defendant No. 4 as are appearing on the document are not disputed by the Defendants. The dispute raised on behalf of the Defendants, for the first time, at the time of cross-examination, is that the said document has been filled up either by the Plaintiff himself or by someone under the instructions of Plaintiff. That suggestion has been denied by the Plaintiff. Instead, the Plaintiff has asserted that the said document has been filled in by the staff of the Defendant No. 1 in the Office of the Defendant No. 1 in the presence of the Plaintiff. Relying on the admission of the Plaintiff that the Bill of Exchange was filled up by two different persons, it was sought to be argued that it is a case of material alteration in the Bill of Exchange. It was argued that in terms of Section 87 of the N.I. Act, such document was of no avail to the Plaintiff. The argument clearly overlooks the purport of Section 87 of the N.I. Act. It clearly provides that the provisions of Section 87 are subject to those of Sections 204986 and125 of the same Act. As mentioned earlier, in the Written Statement, no specific case of alteration in the context of Section 87 of the N.I. Act has been spelt out by the Defendants. The suggestion has come only during the cross-examination of the Plaintiff. Besides, the Defendants have not adduced any evidence either oral or documentary to belie the claim of the Plaintiff about the genuineness of the document. It necessarily follows that he Plaintiff has established the execution of Bill of Exchange.
18. The next question is: whether the Plaintiff has established that Defendants 3 and 4 are the acceptors of the said Bill of Exchange? As mentioned earlier, the document which is proved in evidence Exhibit P-9 clearly indicates that the same has been signed by two persons as having accepted the same. The Bill of Exchange was drawn by Defendant No. 1 upon Defendant Nos.3 and 4 whose names have been recorded in the Bill of Exchange itself. The Plaintiff in his evidence has clearly mentioned that he has seen Defendants 3 and 4 endorsing the said document having accepted the same which was done in his presence. There is no reason to doubt the genuineness of the said stand taken by the Plaintiff. Neither the Defendant No. 3 nor the Defendant No. 4 have bothered to appear before the Court so as to dispel the case made out by the Plaintiff. In my opinion, the Plaintiff has rightly asserted that the Bill of Exchange has been duly executed by Defendant No. 2 for and on behalf of Defendant No. 1 as well as accepted by Defendants 3 and 4.
19. The next question is: whether the Defendants are liable to pay any amount under the said Bill of Exchange. In the Plaint, it is stated that on repeated demand of the Plaintiff, the Defendants offered two cheques for Rs. 1,20,000/ and Rs. 5,00,000/- to the Plaintiff. Those cheques were dishonoured when presented. For that reason, the Plaintiff proceeded to file the present Suit for recovery of the amount payable under the said Bill of Exchange. During the pendency of the present Suit, the criminal proceedings taken out by the Plaintiff in relation to the self same two dishonoured cheques came to be withdrawn, as the Defendants paid towards full and final payment in relation to the respective dishonoured cheques. That fact has been stated by the Plaintiff in the examination-in-chief. Keeping in mind the two demand drafts made over to the Plaintiff in the sum of Rs. 1,20,000/-and Rs. 5,00,000/- on 28th June 2004 and upon giving adjustment for the said amount, the Plaintiff has computed the outstanding payable amount as per the liability arising out of the Bill of Exchange of interest payable at the rate of 24% per annum and worked out the outstanding amount still payable by the Defendant as Rs. 8,57,000/-(Rupees Eight Lakhs Fifty-seven Thousand) as on August 2004. In the cross-examination, the only suggestion put to the Plaintiff is that the amount of Rs. 1,20,000/-and Rs. 5,00,000/-paid were towards full and final settlement of the entire claim of the Plaintiff. That suggestion, however, has been denied by the Plaintiff. The Plaintiff has reiterated his stand that the original cheque of Rs. 1,20,000/- was in respect of interest amount and the second cheque for Rs. 5,00,000/- was in respect of the principal amount payable by the Defendants. The criminal cases have been withdrawn on receipt of the subject amount by bank drafts on 28th June 2004. That amount was accepted only towards full and final payment in respect of the dishonoured cheques; and not towards full and final settlement of the entire claim of the Plaintiff, particularly, in terms of the suit Bill of Exchange. The fact that during the pendency of the Suit, part of the amount has been received by the Plaintiff, which fact has come in evidence, the Defendants, at best, would be entitled for adjustment of the amount so paid. This is so because the stand taken by the Plaintiff is reinforced by the documentary evidence that the Plaintiff accepted the two amounts only towards full and final payment of the dishonoured cheques and not towards full and final settlement of his entire claim in relation to the suit Bill of Exchange as such. In that situation, the Defendants, at best, would be entitled for adjustment of the amount already paid in part.
20. Counsel for the Defendants contended that on handing over the two cheques, the Defendants stood discharged from their liability arising under the suit Bill of Exchange. More particularly because the Plaintiff accepted the said cheques without any demur and without reserving right to claim further amount. The argument that the Defendants stood discharged on handing over the two cheques will have to be only stated to be rejected. The Defendants would stand discharged from their liability only on compliance of requirements of Chapter VII of the N.I.Act. The written statement filed by the Defendants does not spell out as to in what manner the Defendants stood discharged. The Defendants have not chosen to adduce any evidence in support of that claim. Assuming that it is pure question of law, the argument clearly overlooks that the requirement under Section 82 of the N.I. Act is that the maker, acceptor or endorser "makes payment" in due course of the amount due thereon. The emphasis will have to be placed on words "makes payment". Handing over of two cheques to the Plaintiff by itself does not result in making of payment. It is only on realisation of the cheques so handed over, the maker, acceptor or the endorser would stand discharged, provided the amount so offered is the payment of the amount "due thereon", and not otherwise. The Defendants have not proved the factum that amount of Rs. 6,20,000/ offered by way of two cheques was the payment of the entire amount "due in relation to the stated Bill of Exchange". Moreover, admittedly, in the present case, both the cheques for the sum of Rs. 1,20,000/-and Rs. 5,00,000/- were dishonoured. The Plaintiff was required to not only file the present Suit in relation to the claim arising under the Bill of Exchange but also take recourse to the criminal proceedings in relation to dishonoured cheques. In such a situation, by no stretch of imagination, it can be assumed that the Defendants had made payment as was required by Section 82 of the N.I. Act, so as to be discharged from the liability arising under the suit Bill of Exchange. The Defendants did pay the amount of Rs. 5,00,000/ and Rs. 1,20,000/-respectively by way of demand draft on 29th June 2004, which were encashed by the Plaintiff. But that amount represented only part of the amount due and payable in relation to the suit Bill of Exchange. The argument that the Plaintiff accepted that payment without any demur does not take the matter any further. There is no pleading regarding waiver of the remainder claim by the Plaintiff arising from the suit Bill of Exchange. The factum of waiver cannot be assumed. It has to be not only specifically pleaded but proved. That is lacking in the present case. In the circumstances, it necessarily follows that the Defendants are liable to pay the amount under the suit Bill of Exchange as per the terms specified therein. Indeed, the Defendants would be entitled for suitable adjustment of the amount already paid by them to the Plaintiff being Rs. 6,20,000/ (Rupees Six Lakhs Twenty Thousand). In other words, the claim of the Defendants that the amount of Rs. 6,20,000/- paid by them was towards full and final settlement of the entire claim in relation to the suit Bill of Exchange will have to be stated to be rejected.
21. The argument of the Defendants that the Defendants on handing over two cheques in the sum of Rs. 1,20,000/-and Rs. 5,00,000/-which were accepted by the Plaintiff, resulted in novatio of the terms provided in the suit Bill of Exchange, also will have to be negatived for the reasons already recorded earlier. So long as there is no discharge from liability as is required by Chapter VII of the N.I. Act, the question of novatio of the terms of Bills of Exchange does not arise. It is only on discharge in fact or in law, the argument of novatio of terms of suit Bill of Exchange could have been considered and not otherwise.
ISSUE NO. 2:
22. Reverting to the question of interest payable by the Defendants, that issue will have to be addressed on the basis of document Exhibit P-9. The same provides for agreed rate of interest at the rate of 24% per annum. The Bill of Exchange is issued on 8th May 1996. As is rightly argued by the Counsel for the Plaintiff, in view of Section 79 of the N.I. Act, the Defendants would be liable to pay interest at the agreed rate of 24% per annum. Counsel for the Defendants, however, argued that the rate of interest is not only excessive; but the claim of the Plaintiff, if accepted, would result in granting interest over interest. Both these contentions will have to be turned down. This is so because, as per Section 79 of the N.I. Act, the Plaintiff can justly insist for interest at the rate of 24% per annum from 8th May 1996 till the claim amount is fully realised. There is nothing in the Written Statement nor it has come in the evidence that there was any agreement between the parties as to how the part payment if made by the Defendants was to be adjusted. In that, whether the same was first to be adjusted against the interest or the principal amount, or otherwise. The apprehension of the Defendants that on accepting the claim of the Plaintiff, it would result in granting interest over interest is also ill-advised. For, the nature of order that I propose to pass, that will not be the consequence, which would flow from such order.
23. Suffice it to observe that the Plaintiff has proved that he is entitled for interest at the rate of 24% per annum. The Defendants have merely denied their liability. No evidence is forthcoming to belie the claim of the Plaintiff, which, however, is supported by the documentary evidence Exhibit P-9. Accordingly, Issue No. 2 is answered in favour of the Plaintiff.
24. For the reasons already recorded hereinbefore, I proceed to dispose of the Suit on the following terms:
(1) The Defendants are ordered and decreed to pay to the Plaintiff sum of Rs. 5,00,000/ (Rupees Five Lakhs) along with the interest accrued thereon at the rate of 24% per annum from 8th May 1996 till payment and/or realisation. The Defendants would however be entitled to adjustment of Rs. 6,20,000/- (Rupees Six Lakhs Twenty Thousand) paid by two demand drafts to the Plaintiff on 29th June 2004. In other words, the Defendants to pay the balance amount after deducting sum of Rs. 6,20,000/-(Rupees Six Lakhs Twenty Thousand) from the amount payable as per this decree.
(2) Defendants are ordered to pay cost of this Suit to the Plaintiff.
(3) Decree be drawn on the above terms.

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