Skip to content


Nasir Ali Vs. Kher Chand Alias Khem - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1916All310; 36Ind.Cas.996
AppellantNasir Ali
RespondentKher Chand Alias Khem
Excerpt:
.....consider the evidence of the defendant's witnesses reliable and who accepted the evidence of one bhure singh, and finding, i think correctly, that the onus lay on the defendant and that he had failed to discharge it, gave judgment of the plaintiff for the full amount. justice sundar lal as he then was and myself, and the only question upon which we had any doubt was as to whether the judge meant to find that no money had in fact been raised and that there had been a total failure of consideration. the judgment was not clear and was thought it, on the whole, with some hesitation better to send it back to clear up the difficulty. now in order that there should be no mistake, we think it better to set out the exact language of the material finding. 'l am satisfied',says the learned judge,..........consisting of rs. l,123 principal and rs. 797-6-0 interest alleged to be due upon a promissory note executed by the defendant on the 4th of september 1910 payable at three months date. the case was originally tried by the subordinate judge, who did not consider the evidence of the defendant's witnesses reliable and who accepted the evidence of one bhure singh, and finding, i think correctly, that the onus lay on the defendant and that he had failed to discharge it, gave judgment of the plaintiff for the full amount. an appeal was brought to the district judge, the result of which has been to throw the case into a lamentable state of confusion. in the first judgment he treated as the issue whether, the promissory note was executed for cash consideration which passed to the defendant.....
Judgment:

Walsh, J.

1. This is an unsavoury case and it is difficult to say, and both the Courts below have differed on the point, as to which of these men is the worse scamp. They are all much of a muchness from what we have seen, but the case must be determined according to law. The suit is brought by the plaintiff for a sum of Rs. 1,920-6-0 consisting of Rs. l,123 principal and Rs. 797-6-0 interest alleged to be due upon a promissory note executed by the defendant on the 4th of September 1910 payable at three months date. The case was originally tried by the Subordinate Judge, who did not consider the evidence of the defendant's witnesses reliable and who accepted the evidence of one Bhure Singh, and finding, I think correctly, that the onus lay on the defendant and that he had failed to discharge it, gave judgment of the plaintiff for the full amount. An appeal was brought to the District Judge, the result of which has been to throw the case into a lamentable state of confusion. In the first judgment he treated as the issue whether, the promissory note was executed for cash consideration which passed to the defendant himself, or as a means of enabling Bhure Singh to raise money. The execution by the defendant, be it observed, has never been disputed, and the defendant's case is that he does not know the plaintiff and, therefore, it stands admitted at the threshold of the case that the defendant executed a promissory note for Rs. 1,100 odd in favour of a man he did not know and had never seen. The only possible explanation of such conduct is the explanation which the defendant has given from the first and which I will refer to in a moment. The learned District Judge found that the promissory note was executed by the defendant as a means to enable Bhure Singh to raise money, and upon that finding gave judgment for the defendant. An appeal was then brought to this Court, which was heard by my brother Mr. Justice Sundar Lal as he then was and myself, and the only question upon which we had any doubt was as to whether the Judge meant to find that no money had in fact been raised and that there had been a total failure of consideration. The judgment was not clear and was thought it, on the whole, with some hesitation better to send it back to clear up the difficulty. The result is to throw a fresh cloud of mystery over the whole facts of the case. The specific issues upon which findings are sought were these:

(1) whether the promissory note in question war executed for consideration.

(2) whether the amount was received by Bhure Singh or by the defendant.

2. Now in dealing with negotiable instruments there are two principles to be borne in mind which are apt to be overlooked. First, the moment it is admitted that the maker of a note or acceptor of a bill made or accepted it, the onus is upon him to get rid of his liability. It is not for the plaintiff, unless he is charged with fraud and some prima facie case is made against him, to explain the circumstances at all; and secondly, except under peculiar circumstances,, the proof of which lies upon the defendant; a man who signs a bill is presumed to be liable for the whole amount appearing on the face of the document. Now the answers to the issues are in these terms:

For the above reasons I find:

(1) that the promissory note in question was executed for no consideration.

(2) that the amount was not received by Bhure Singh nor by the defendant.

3. Now if these are really findings of fast this Court is unable to interfere with them, and if the findings had commenced with the numeral one, and ended with the sentence I have just read, there would have been some difficulty in getting behind them, but the learned Judge states that his findings are conclusions from the reasons which he sets out at length in a very long judgment, and the reasons are in fact findings of fact, and, of course, it is elementary that where findings of facts are set out in detail and are then summarised in the statement of an affirmative proposition, the affirmative proposition, if not entirely a finding of law, is a mixed finding of fact and law, and if the concision is one which could not be arrived at upon the findings of fact upon which it is based without a misdirection in law, it can be reviewed. Now in order that there should be no mistake, we think it better to set out the exact language of the material finding. 'l am satisfied', says the learned Judge, that Bhure Singh; being pressed for money to liquidate losses incurred in grain gambling and not wishing to tell his brother Choudhri Jiraj Singh, induced Kehar Chand with whom he had dealings for many years to execute the promissory note in suit in the name of Nasir Ali, a friend of Bhure Singh's unknown to Kehar Chand and not present at the time when the promissory note was written. Bhure Singh afterwards gave this promissory note to his friend Nasir Ali and realised for it some money, possibly Rs. 450, for payment to his brokers. It cannot be said, however, what money Bhure Singh received from Nasir Ali.' So far as the amount is concerned, it will be necessary to refer to that later on, but it reads as though Rs. 450 had been raised, and that it may have been more but the important part of that finding is that it is a clear finding of fact to the same effect as that relied upon by the defendant in his written statement in paragraphs 9 and 10, and be it observed to precisely the same effect as found the learned District Judge in his first judgment, namely, that the promissory not was executed as a means to enable Bhure Singh to raise money. We are satisfied that amongst all the facts of this case that is one thing which stands out clear beyond any question whatever. It is an entire misconception to hold that there was no consideration. There was consideration and the Judge has misdirected himself as a matter of law in holding that there was no consideration. It is totally immaterial when the money was advanced, the defendant case being that he signed the promissory note and gave it to Bhure Singh to enable him to raise money upon it.

4. The learned Judge talks about Kehar Chand as being the victim of a diabolical fraud. We confess we are unable to Understand what he means by this expression It is obvious that if, as the learned Judge seems to think Bhure Singh is a scamp and Kehar Chand is his old friend it is perfectly possible that these two persons, who may be birds of a feather are in this suit conspiring to fleece the plaintiff of some of the advance which have made to Bhure Singh and that the plaintiff is possibly an injured man However, it is extremely difficult to get at the bottom of this part of the case It is sufficient to say that there is not a particle of evidence that the defendant was induced to execute this document by any fraud. On the contrary it is found that he executed it for the express purpose, winch he himself alleges, that he always intended. There is, however, in the evidence to which I have already referred some ground for holding that the plaintiff is entitled to recover only a reduced amount. A strict application of the principles of law relating to the onus of proof may leave the defendant here in a considerable difficulty upon this point For some reason or another the learned Judge seems to have treated Bhure Singh and his evidence as a person who, when he is said anything which in any way assisted e the defendant, was a sort of admission e against the plaintiff. I should have thought n myself that the defendant's case depended I, entirely upon Bhure Singh, and if Bhure Singh is a worthless person whose evidence t is not to be believed, his statement that e he only received Its 450 is a very dubious e one. However, it is to be borne in mind that the plaintiff himself, when he got t to Court, seems to have out-Heroded Herod in an endeavour to prove that the actual value of the note was advanced in cash to the defendant himself. The learned Judge in the Court below seems to have thought, and we agree with him, that this statement at any rate is unworthy of credence as most of the statements made are, but the result of it is to leave us in some doubt as to which really is the biggest liar in the case, and we do not feel ourselves called upon to reject, on what must be admitted to be very slender, evidence, the finding that only Rs. 450 were really advanced. The result of that is that whether the promissory note was held by Nasir Ali as a security for his actual advance, or whether it is covered by the express terms of SECTION 44 of the Negotiable Instruments Act, the plaintiff being within the expressed terms of the exception as the payee of a promissory note, standing in immediate relation to the maker thereof, we think that justice will be done on this somewhat shadowy material by giving judgment for the plaintiff for the sum of Rs. 450 with interest from the 4th of December 1910 until the 29th of June 1914, the date of the decree in the Subordinate Judge's Court, at the rate of 24 per cent, and from that date until the date of this order of payment at the rate of 6 per cent. The plaintiff must have the costs of this appeal and of all the proceedings in the Court below.

Sturt J.

5. I agree with my learned brother in the order proposed. I can only interpret the findings of fact of the learned Judge as open to the interpretation that although the promissory note was executed by Kehar Chand in the absence and without the knowledge of Nasir Ali, and although no consideration passed at the time, Kehar Chand permitted Bhure Singh to obtain, Rs. 450 from Nasir Ali, and handed the promissory note over to him. In these circumstances the decree must be as laid down in the order of my learned brother.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //