1967 (11) TMI 117 - HC - Indian Laws

Appeal dismissed due to signature issues on promissory note, barring challenge in second appeal.

The appellate court dismissed the appeal, finding the plaintiff could not rely on the presumption under Section 118 of the Negotiable Instruments Act as ... Execution of a promissory note - presumption under S. 118 of the Negotiable Instruments Act - promissory note as an instrument in writing signed by the maker - transplantation of signature/receipt stamp - scope of second appeal on findings of factExecution of a promissory note - promissory note as an instrument in writing signed by the maker - Exhibit P-1 was not proved to have been executed (signed) by the defendant when handed over to the plaintiff. - HELD THAT: - The lower appellate court found on the evidence, disbelieving the plaintiff and accepting the defendant and D.W.2, that Ex. P-1 did not contain the defendant's signature when delivered. Since a promissory note, by definition, must be an instrument in writing signed by the maker containing an unconditional undertaking to pay, an instrument lacking the maker's signature was not a promissory note at the time of delivery. The plaintiff failed to examine alleged attestors and did not satisfy the court that the attestors had become hostile; consequently the execution was not proved on the available evidence. [Paras 1, 3]Execution of Ex. P-1 by the defendant was not proved; Ex. P-1 was not established as a promissory note executed by the defendant.Presumption under S. 118 of the Negotiable Instruments Act - The presumption under S. 118 could not be invoked in respect of Ex. P-1. - HELD THAT: - The statutory presumption under S. 118 arises only where there is a promissory note admittedly executed. Because the lower appellate court found that Ex. P-1 did not bear the defendant's signature when delivered, it was not a promissory note for the purpose of attracting the S. 118 presumption. Therefore no reliance could be placed on that presumption in the plaintiff's favour. [Paras 2]Presumption under S. 118 was unavailable to the plaintiff in respect of Ex. P-1.Transplantation of signature/receipt stamp - The finding that part of the Kannada letter 'Ya' was missing on Ex. P-1 and that the receipt stamp (bearing the signature) had been removed from Ex. P-3 and transplanted on Ex. P-1 was accepted. - HELD THAT: - The lower appellate court observed a distinctive defect - a missing segment of the Kannada letter 'Ya' - on the signature appearing on the receipt stamp in Ex. P-1. That circumstance was held to establish that the receipt stamp containing the defendant's signature had been removed from Ex. P-3 and affixed to Ex. P-1, thereby reinforcing the conclusion that Ex. P-1 did not originally contain the defendant's signature when delivered to the plaintiff. [Paras 4]The finding of transplantation of the receipt stamp/signature from Ex. P-3 to Ex. P-1 was upheld and reinforces the non-execution conclusion.Scope of second appeal on findings of fact - The second appeal could not entertain reappraisal of the lower appellate court's findings of fact regarding execution and the signature. - HELD THAT: - The determination that execution was not proved and the related factual findings, including disbelief of the plaintiff's evidence and acceptance of the defendant's, are findings on pure questions of fact. Such findings are not open to challenge in a second appeal. The High Court therefore declined to disturb the lower appellate court's factual conclusions. [Paras 3, 5]Findings of fact recorded by the lower appellate court are final for the purpose of the second appeal and are not susceptible to reappraisal here.Final Conclusion: The High Court dismissed the second appeal with costs, upholding the lower appellate court's findings that Ex. P-1 was not executed by the defendant, that the presumption under S. 118 was inapplicable, and that the factual findings (including transplantation of the receipt stamp) could not be re-opened in second appeal. The lower appellate court found that the signature on Exhibit P-1 did not exist when handed over to the plaintiff by the defendant. As a result, the plaintiff could not rely on the presumption under Section 118 of the Negotiable Instruments Act. The lower appellate court held that the execution of the promissory note was not proved, and this finding cannot be challenged in a second appeal. The court also noted a missing segment in the signature on Exhibit P-1, indicating tampering. The appeal was dismissed with costs.