TMI Blog1948 (11) TMI 14X X X X Extracts X X X X X X X X Extracts X X X X ..... in suit were passed for accommodation. It was then argued before him that inasmuch as the plaintiff had put forward as the consideration of the hundis something different from what was mentioned in the hundis themselves, the presumption which arises under Section 118 of the Negotiable Instruments Act, 1881, was rebutted and the burden was upon the plaintiff to prove that there was consideration for these hundis. The hundis mention the amount as the consideration for value received in cash this day, i.e. cash received on the day on which the hundis were -executed. But at the hearing the defendant admitted that the consideration mentioned in the hundis was not correct and the real consideration was something different from what was mentioned in the hundis. Now, Section 118 of the Negotiable Instruments Act raises a statutory presumption in favour of there being consideration for every negotiable instrument, and the language of the section is that Until the contrary is proved, the following presumptions shall be made: (a) that every negotiable instrument was made or drawn for consideration... Those are the material words with which we are concerned. Therefore, the statutory, presum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to prove the consideration. Mr. Justice Pal of the Calcutta High Court, although his observations are obiter in Ramani Mohan v. Surjya Kumar Dhar AIR1943Cal22 has taken a different view as to the true construction of the section from the view taken by the Lahore High Court. In our opinion, therefore, Mr. Justice Tendolkar was right in coming to the conclusion that the mere fact that the consideration mentioned in the three hundis turned out to be wrongly described did not rebut the presumption under Section 118, and the burden still lay on the defendant to satisfy the Court that there was no consideration for the three hundis. 4. The learned Judge on a review of the evidence came to the conclusion that the defendant had failed to prove that the three hundis were for accommodation and he gave his finding on the first issue accordingly. That should have been sufficient to dispose of the suit and a decree would have followed in favour of the plaintiff. But in view of this legal argument advanced, the learned Judge thought it necessary, in the event of a higher Court taking a different view, to approach the case from a different angle. If the legal view was as laid down by the Laho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he defendant that it can be established that there was no consideration, but it is open to the defendant to prove his case even from the mouth of the plaintiff himself. There Mr. Purshottam is quite right. In order to determine whether the contrary is proved or not, as required by Section 118, the whole volume of the evidence led before the Court must be considered. Very often important admissions are elicited by counsel for the defendant by cross-examining the plaintiff and those admissions certainly can be availed of by the defendant. But in considering the whole volume of evidence the Court must always bear in mind the statutory presumption under Section 118 and also the fact that the burden of proof lies upon the defendant and that-burden has got to be discharged by the defendant. How that burden can be discharged or whether it has been discharged is a matter of appreciation of evidence. As a matter of fact, in this case no express issue was raised as to the consideration. The only issue, as I have pointed out, was whether the hundis were passed for accommodation as alleged by the defendant. But the learned Judge points out and this has been strongly relied upon by Mr. Purshott ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. With great respect, that is a proposition of law which is unexceptionable. If Mr. Justice Tendolkar had given a clear finding that there was no consideration for the three hundis, then apart from any question of presumption that finding if accepted would have resulted in the defendant succeeding, because the result of that finding would be that the presumption under Section 118 had been rebutted. Two cases were referred to in this judgment of the Allahabad High Court by Mr. Justice Sulaiman and both those cases have also been referred to at the Bar. One is another decision of the Allahabad High Court, Md. Shafi Khan v. Md. Moazzam Ali A.I.R. [1923] All. 214 That case decided that in case where consideration is denied and the plaintiff goes into the witness-box and the result of his cross-examination is such that he failed to establish the point which he set out to make, viz. that he gave the consideration, and the Court is satisfied that he did not give the consideration, the defendant can avail himself of that. It is to be noted that in that case there was only one issue as to consideration, and on that issue the Court considering the contradictory evidence given by the plaint ..... X X X X Extracts X X X X X X X X Extracts X X X X
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