MUSHIR ALAM, J.--- This first appeal arises out of a judgment and decree dated 30.11.1986 and 5.1.1987 respectively passed by the learned IInd Addl. District Judge, Hyderabad in suit No. 47/1985 decreeing the suit filed by the respondent for the recovery of the amount of Rs.15,000/- under Summary Chapter.
2. Briefly stating the facts as giving rise to instant proceedings are that the plaintiff/respondent .
That plaintiff had taken advance a friendly loan of Rs.15,000/- to the defendant/appellant same was secured against a Promissory Note, and a receipt acknowledging said amount on 24.5.1982 which amount was not repaid despite repeated demand and requests. Hence the suit under Order 37, Rule 2, CPC for the recovery of the said amount.
3. Defendant/appellant was granted leave to defend subject to furnishing surety, defence taken by the appellant in the written statement was based on denial of consideration though the admitted having signed Promissory Note, and receipt relied upon by the plaintiff/respondent. He further challenged the date of execution and maintained that same was executed on 6.10.1981 and not on 24.5.1982 as claimed. It was further pleaded that an agreement was executed on 6.10.1981 between the parties' alongwith others brothers and sister of both the parties for the construction of the subject property and on the same date said Promissory Note, was also executed. Out of the pleadings of the parties following issues were framed:- (1,) Whether the defendant signed the Promissory Note, on 6.10.1981?
(2) Whether the consideration for the Promissory Note, was not paid to the defendant?
(3) Whether the Promissory Note, in question was insufficiently stamped and subsequent addition of stamps is illegal and unwarranted by law?
(4) Whether the suit is time-barred?
(5) Whether an addition or alteration if any was made in the Promissory Note, about the date and the rate of interest?
(6) What should the decree be?
Parties led evidence in support of their respective claims. Since the burden was on the defendant/appellant he led the evidence first and examined himself and produced copy of agreement dated 6.10.1981 certified copy of the compromises application and order passed in suit No. 138/1982 and copies of acknowledgement of amount paid under compromise decree. The plaintiff/respondent examined himself, and examined attesting witness Iftikhar Hussain.
4. Learned Trial Court dispelled the contentions of the appellant that Promissory Note, was not executed on 24.5.1982, in view of the presumption attached to inchoate instrument under Section 118 of Negotiable Instruments Act. Contention of the learned counsel for the appellant that the date mentioned on the Promissory Note, Ex.3 is in different ink and writing. According to him same was not executed on the date mentioned therein as 24:5.1 982. In cross-examination he admitted the signature both of the Promissory Note, and on the receipt. He also admitted that the denomination of the currency notes as Rs.100/- notes of Rs.100/- = 10,000/- and, Rs.100/- notes of Rs.50/- = Rs.5,000/- total Rs:1 5,000/- was written by him. In cross he further admitted the receipt is witness by Muhammad Yaqoob and Iftikhar Hussain.
5. The contentions of the learned counsel for the appellant that the Promissory Note, was not executed on 24.5.1982 but on a date 6.10.1981. Such contentions cannot be sustained for more then one reason, firstly, under Section 118 of the Negotiable Instruments Act, presumption is attached to a Negotiable Instrument, as to receipt of consideration, date of execution,. Time of acceptance time of transfer, order of endorsement, as to stamp and holder in due course are presumed unless, contrary is proved. It is settled position in law, where statutory presumption is attached as to existence of any fact. Then any person setting-up a plea in rebuttal, takes upon himself to prove such plea in rebuttal. Defendant/appellant challenged such presumption pleading reliance that the Promissory Note, was executed alongwith alleged agreement executed between the parties on 6.10.1981.
6. From the perusal of such compromise. It appears that witnesses to such agreement and receipt to Promissory Note, are same. Both the documents are claimed to have been executed on the same date. Appellant had not confronted the Syed Iftikhar Hussain who appeared as respondent witness to such compromise agreement nor any suggestion was made putting up his case regarding execution of both the documents on the same date. Stand of the witness Iftikhar Hussain remained consistent with that of the plaintiff/respondent.
7. Contention of the learned counsel for the appellant that once the consideration has been denied by him, burden was shifted on the plaintiff/respondent to have proved the consideration. Such arguments are fallacbus in relation to inchoate instrument . Section 118(a) of the Act down a Special Rule of evidence contrary to the general rue of proof as already discussed above. Burden to dispel statutory presumption is always on a .Party seeking to negotiable or rebut the presumption as to existence of consideration. Once the execution is admitted then it was for the defendant/appellant to disprove consideration. For reference see Mst. Sughran Begum and 11 others v. Haji Mir Qadir Bukhsh and 2 others (PLD 1986 Quetta 232 DB) and United Bank Ltd. v. Mrs. Bilquees Begum and 3 others (1988 CLC 1613) and S.K. Abdul Aziz v. Mahmoodul Hassan and 3 others (1988 CLC 337).
8. Fact that the denomination of the currency notes as mentioned in the receipt of admitted to have been written by the defendant/appellant himself, further supports the plea of respondent/plaintiff that appellant/defendant had received the amount in the shape of currency note of the denomination mentioned by him, otherwise, there was no necessity to mention the denomination of currency notes while acknowledging the amount. It is not the case of the defendant/appellant that such 'epnsideration is repaid or adjusted. Lastly even if contention of the learned counsel for the appellant is taken on its face value, that the Promissory Note, was executed by him on 6.10.1981, but the date was filled up as 24.5.1982 in order to bring the suit- within time.
Such contention is also devoid of force. In terms of Section 20 of the Negotiable Instruments Act, 1881, a person delivering duly signed negotiable instrument, wholly blank or partly incomplete as to date, amount or any other material particular, delivers such instrument prima facie, coupled with authority to the recipient to, complete and or to fill-up the deficiencies, so as to convert into enforceable instrument. However, such authority is to be exercised within reasonable time (for reference see Messrs United Bank Ltd. v. President, Bazm-e- Salat and another (PLD 1986 K. 464) and Bazm-e-Salat and others v. Messrs United Bank Ltd. (PLD 1989 K. 150). Reasonable time in terms of Section 209 of the Act, in a case of National Bank of Pakistan v. Aziz-ul-Hasan (1984 CLC 1035) at page 1042 was held to be three years.
9. In the instant case, Promissory Note, as per admission of the appellant was executed on 6.10.1981.
Even if it is presumed that date was filled-up subsequently as 24.5.1982, then as per Section 20 of the Act, authority to fill-up the date and complete the instrument vested in the hands of recipient, which authority apparently was exercised within 3 years from the date of execution as claimed by the appellant. It is no body's case that no such authority was conferred on the plaintiff/defendant.
Similar is the position in respect of the affixation of the stamp no particular mode under law is provided under Section 12 red with Section 35 of the Stamp Act, affixation of stamp and its cancellation on the Promissory Note, is sufficient compliance of the Stamp Act for reference see Malik Muhammad Akram v. Khuda Bakhsh (2000 CLC 759) and National Bank of Pakistan v. Messrs M. Ismail Thakur and Sons Ltd. (1988 CLC 700).