Whether it is necessary to produce and prove books of accounts for recovery of money given on promissory note?

 Coming to the last averments of the appellant that the

books of account have not been produced by the plaintiff as required

under Section 34 of the Evidence Act, I again do not find any merit in

the said contention. Firstly, the “book of accounts” as referred to in this

section means books in which merchants, traders or businessmen

generally keep their accounts i.e. statements of debits and credits or

receipts of any payments. Since there is no evidence on record that

the plaintiff was in fact indulged in the business of money lending then

obviously, the plaintiff was not required to maintain the books of

accounts and thereafter prove the same in accordance with the

requirement of Section 34 of the Evidence Act. Therefore, nonproduction

of these books, is of no consequence.

15. It is more than settled that it is not in all cases that nonproduction

of account-books by itself may be pressed into service as a

factor to disbelieve a litigant’s case and characterize his conduct as

fraudulent. Each case has to be decided on its own merits. Otherwise

also, it is normal that account-books kept in the regular course of

business of a tradesman is merely a compilation of all the details of his

dealings from day-to-day and is practically a summary of such

transactions written up in bills,vouchers, anamath chits etc. Therefore,

the account-books by themselves do not stand on any better footing

than a bill or a voucher issued by the plaintiff in the regular course of

business.

16. Here in the instant case, the plaintiff is armed with the

pronote acknowledging the liability to pay a sum of Rs.1,00,000/- by

the defendant in favour of the plaintiff and the execution of such

pronote has duly been proved on record and as a matter of fact, has

not been seriously disputed even by the defendant. Therefore, the

provisions of Section 34 of the Evidence Act, have no applicability to

the facts of the instant case.

The substantial question of law is accordingly answered.

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

R.S.A. No. 704 of 2008

Date of decision: 29. 08. 2019

Smt. Brij Bala  Vs  Sh. Surender Kumar

Coram

The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.

Citation: AIR 2020(NOC) 154 HP

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Whether insufficiently stamped promissory note is admissible in evidence after impounding it?

Therefore, it follows from the authoritative pronouncements of this Court and also the High Court of Assam referred above, "promissory note" which is payable otherwise than on demand not duly stamped as required by Schedule Article 49(b) of Indian Stamp Act, 1899, is inadmissible in evidence. Same cannot be received in evidence even on payment of deficit stamp duty and penalty. The defect that, promissory note is not duly stamped or inadequately stamped, cannot be cured in view of the proviso (a) to Section 35 of the Indian Stamp Act, 1899, as held by this Court in the case of M/s. Wolstenholme International Ltd., (supra). 

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Writ Petition No.9317 of 2011

Decided On: 25.07.2012

Shiva Sahakari Up Jal Sinchan Sanstha Ltd. Vs.  The Nanded District Central Coop. Bank and Ors.

Hon'ble Judges/Coram:

S.S. Shinde, J.

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When defendant is entitled to get unconditional leave to defend in summary suit based on promissory note?

 After service of writ of summons, the defendant No. 1 filed appearance and on receipt of the summons for Judgment has filed an affidavit in reply dated 13th June, 2003. In paragraph No. 2 of the affidavit in reply, the defendant No. 1 who is the son of the deceased has specifically stated that the deceased Fateh Bahadur Shrivastava had never signed the promissory notes on which the plaintiff is relying her claim. In the affidavit, the defendant has further denied that deceased Fateh Bahadur Shrivastava took the loan as alleged by the plaintiff. In view of the denial of the signature on the promissory notes, the plaintiff Would be required to prove that the execution of promissory notes was by late Fateh Bahadur Shrivastava. The learned counsel for the plaintiff contends that under Section 118 of the Negotiable Instruments Act, there ts a presumption of consideration and therefore, the burden of proof that the deceased had not taken the loan was on the defendant No. 1 Which he had got discharged and therefore, no leave to defendant should be granted. Under Section 118, there is no presumption about the execution of a Negotiable Instrument by a person. The execution must be proved in accordance with law. Only after the execution of Negotiable Instrument is proved, then the presumption of consideration would arise. In the present case, there is not only denial of the receipt of consideration but even the denial of the execution of the promissory notes. Therefore, the contention of the learned counsel for the plaintiff cannot be accepted. As the plaintiff would be required to prove the signatures on the promissory notes, triable issue arise. The defendant No. 1 would therefore, have to be granted unconditional leave to defend the suit.

Bombay High Court

Smt. Sheel Arora vs Sanjay Fetah Bahadur Srivastava on 19 November, 2003

Equivalent citations: AIR 2004 Bom 99

Bench: D Karnik

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When any document will be treated as promissory note?

 In the case on hand, the recitals in Exhibit A1 is to the

effect that, on demand the appellant undertakes to pay a sum of


8,00,000/- to the respondent with interest at the rate of 18% per

annum, for value received. In Validation of document v. State

(AIR 1955 Madras 652) a Full Bench of the Madras High Court

held that, "the mere omission of the expression 'to the order of'

would not render a document any the less a promissory note, if

otherwise it fulfilled the definition of the term 'promissory note'.

Actually a promissory note need not contain this expression. It is

sufficient if there is an unconditional undertaking to pay a certain

sum of money to a certain person." Following the said judgment and

also the judgment of the High Court of Gujarat in Shah Chhabildas

Mangaldas v. Luhar Mohan Arjan (AIR 1967 Gujarat 7) and the

judgment of the High Court of Andhra Pradesh in Bahadurrinisa

Begum v. Vasudev Naick (AIR 1967 AP 123), a learned Single

Judge of this Court in Hameed Haji v. Appukutty (1968 KLT 869)

has reiterated that, "the absence of the expression 'or to the order

of' will not make the document any the less a promissory note."

Therefore, Exhibit A1, which contains an express unconditional

promise made by the appellant to pay on demand a certain sum of

money to the respondent for value received, is an instrument having


the essential features of a promissory note and the contention to the

contra raised by the learned counsel for the appellant can only be

rejected.
  IN THE HIGH COURT OF KERALAAT ERNAKULAM

                                            PRESENT:

                          THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN
                                                   &
                       THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

               FRIDAY, THE 27TH DAY OF FEBRUARY 2015

                                      RFA.No. 415 of 2014 (B)
                                        

          K.VIJAYAKUMARN NAIR @ VIJAYAN.
          
Vs
            AJIKUMAR, 
            P.N.RAVINDRAN & ANIL K.NARENDRAN, JJ.
           

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How to appreciate evidence in case of suit based on promissory note?

It is undisputed, rather admitted that the plaintiff-
respondent is a money lender. Naturally he would be well aware
how to write-fill in the pronote and receipt and at which place the
adhesive stamps are to be affixed. The perusal of Ex.P-2 and Ex.P-
3 shows that the stamps have been affixed at an unnatural place. It
shows that the same were not affixed at the time when Gurpal
Singh allegedly signed it. Moreover, no date or signatures of
Gurpal Singh are thereon the said stamps. The other point which
shows the falsity of the case of the respondent-plaintiff is that if
infact Gurpal Singh appellant had received an amount of Rs.5000/-
and he did sign in English script why the receipt of amount was not
got recorded from him in his handwriting. Then most suspicious
circumstance is that why the witnesses of alleged pronote and
receipt did write in their own handwriting that Rs.25,000/- was
received in their presence. It shows that these persons have signed
the document later on at the behest of the plaintiff-respondent.
They too have committed forgery. While committing a wrong
conscience of men becomes the best and the worst evidence against
him. He trembles. Moreover, there is a cutting in the date 28.6.85
written by Parmod Kumar. There is over writing in digit ‘6’ and
digit ‘2’ and to make the matter clear the plaintiff attempted to add-
Behari in the letter ‘Panch’ which has been made ‘Panchi’. No
explanation has been given by the plaintiff-respondent for their
over-writings and forgeries. Even none of these made up witnesses
were produced in witness box by the plaintiff-respondent. Had
they appeared they could have been cross examined. So, until and
unless, these persons were not examined by him and they were
given up, neither due execution of the pronote and receipt can be
said to have been proved nor the passing of consideration can be
said to have taken place.”
The plaintiff has not pleaded the advancement of loan of
Rs.5,250/- vide cheque Ex.P1 dated 05.05.1982 in the plaint, it was so
stated in the rejoinder only. A perusal of the pronote (Ex.P2) and the
receipt (Ex.P3) shows that signatures of Gurpal Singh, the defendant
are not on the stamps affixed. Though, there is no attesting witness on

the pronote part of the document but in respect of receipt part, Parmod
Kumar Chuchra and Krishan Lal son of Daulat Ram are the two
attesting witnesses. There is date underneath the signatures of Parmod
Kumar Chuchra as well as over-writing whereas there is no date
underneath the signatures of Gurpal Singh, the defendant.
The
amount of Rs.25,000/- mentioned in the endorsement signed by
Krishan Lal has also overwriting. The stamp on the pronote part had
the words written 12500/- as half of the amount of pronote. The
stamps have been cancelled on the basis of writings which are in the
hand of the person who has filled up the receipt and pronote. They are
not in the hands of Gurpal Singh. There is no date mentioned under
the signatures of the defendant who signed in English, whereas the
date and the amount mentioned by the attesting witnesses. It is an
unusual mode of execution of pronote. The manner of execution of
pronote creates enough doubt in respect of execution of pronote and
receipt by the defendant. It only confirms the finding recorded that the
signatures of the defendant were obtained on blank papers and has
been used for preparation of pronote and receipt.
The findings recorded by the learned first Appellate
Court, that execution of the pronote (Ex.P2) and the receipt (Ex.P3)
are not proved to be executed on the date and time purported and has
been prepared on an already signed document, is based upon proper
appreciation of evidence. 

IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA No.1429 of 1997 (O&M)
Date of decision:10.10.2014

Krishan Kumar  Vs Gurpal Singh

CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA
Citation;AIR2015(NOC)2 P&H

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Whether promissory note which is not duly stamped is admissible in evidence after its impounding?

Therefore, it follows from the
authoritative pronouncements of this Court and
also the High Court of Assam referred above,
"promissory note" which is payable otherwise than
on demand not duly stamped as required by
ScheduleI Article 49(b) of Indian Stamp Act,
1899, is inadmissible in evidence. Same cannot be
received in evidence even on payment of deficit
stamp duty and penalty. The defect that,
promissory note is not duly stamped or
inadequately stamped, cannot be cured in view of
the proviso (a) to Section 35 of the Indian Stamp
Act, 1899, as held by this Court in the case of
M/s. Wolstenholme International Ltd., (supra).
Therefore, this Court is of the opinion that, the
view taken by the Cooperative
Court, Nanded i.e.
trial Court, is the correct view.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.9317 OF 2011

Shiva Sahakari Up Jal Sinchan Sanstha Ltd. Vs The Nanded District CentralCoop.

CORAM: S.S. SHINDE, J.

PRONOUNCED ON :25/07/2012

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When usanwar chitthi is promissory note,it is not necessary to impound it

This Court has given thoughtful consideration to the contentions canvassed by the learned counsel for the parties. It is not in dispute that the parties are resident of the same village, i.e. Sawargaon and the relation between the parties are cordial. It is also not in dispute that the defendant had purchased the stamp paper on 20-12-1979 on which usanwar chitthi is scribed. Perusal of the usanwar chitthi itself would reveal that the contents of the same are in the nature of the promissory note. The contents of usanwar chitthi are scribed in vernacular and the same could be translated as under :

Hand Loan document

Person in whose favour written : Baliram Rupaji Nagulkar R/o Sawargaon Jire Tq.

Washim, District Akola.

Person who executed the document : Ganpat Kashiba Tadas, R/o Sawargaon Jire, Tq. Washim.

Distt. Akola.

I, the undersigned execute this hand loan receipt to the effect that I have taken the hand loan amount of Rs. 5,000/- from you to meet the household expenses as well as the expenses for digging the well in the field Survey No. 87/1-B and I promise to pay the same on demand and therefore I have executed this hand loan document which would be binding against my estate and heirs. This date 1-2-1981

Scribe : Nilkanthrao Deorao Sarnaik 1-2-1981

Witness :

1. Bhagwan Mahadu Paddhan

1-2-1981

Signed

Ganpat Kashiba Tadas D. K.

7. Perusal of the contents of the aforesaid document would reveal that it is in fact a promissory note and not a bond and therefore, this Court is of the considered opinion that no impounding was necessary as is required by Section 34 of the Bombay Stamps Act.

Bombay High Court

Baliram S/O Rupaji Nagulkar vs Ganpat S/O Kashiba Tadas on 29 April, 2004

Equivalent citations: 2005 (1) MhLj 543

Bench: S Kharche

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