- (1.) A suit was filed by the respondent-appellant for recovery of Rs. 9,500/- against the appellant-defendant. It was alleged in the pliant that the defendant had borrowed various sums from time to time from the plaintiff and after accounting for the previous loans, he struck the balance of Rs. 9,500/- in favour of plaintiff in 29th of Poh, 2025 BK. corresponding to 12th January, 1969 and it was reduced to writing by scribe Faqiria Mal in which it was stipulated that the amount would be repaid by Hari, 2026 BK. The defendant denied the allegations made in the plaint and had taken the stand in the written statement that he had taken only a loan of Rs. 400/- about 10 years before filing of the suit and the respondent had got a writing executed for Rs. 480/- from the appellant; that about a year back he gave a buffalo worth Rs. 1,000/- to the plaintiff and had settled his accounts finally; that the writing in question is a fictitious one as the plaintiff fraudulently got his thumb impressions on some of the papers; that the plaintiff is a money-lender and had not furnished six-month accounts to him for which the plaintiff is not entitled to any interest or cost. The parties contested on the following issues :- 1. Whether the defendant executed the Bahi entry in plaintiff's favour accepting a balance of Rs. 9,500/-; as due from him to the plaintiff ? 2. What is the effect of the plaintiff being a money-lender and his not having furnished regular six-monthly accounts to the defendant ? 3. Whether the Bahi entry, basis of suit, is for consideration ? 4. Relief. Issue No. 1 was decided in favour of the plaintiff. Issue No. 3 was also decided in favour of the plaintiff and it was held that the plaintiff had successfully established the amount of Rs. 5,153/- to have been paid by him to the defendant and that an amount of Rs. 4,347/- had been added on account of interest making a total of Rs. 9,500/-. Issue No. 2 was decided against the plaintiff and it was held that he is a money-lender and six monthly statement of accounts had not been sent by him to the defendant at anytime and thus he was not entitled to any interest or costs. In view of the provisions of Section 4(b) and (c) of the Punjab Regulation of Accounts Act, 1930, the plaintiff's suit was decreed for Rs. 5,153/- only by the trial Court. dissatisfied by the High Court and decree of the trial Court, two separate appeals were filed by the plaintiff and the defendant before the learned Additional District Judge who affirmed the findings on all the issues of the trial Court and dismissed both the appeals except that the proportionate costs of the suit were awarded to the plaintiff by the District Judge. Dissatisfied with the judgment and decree of the first appellate Court, both the plaintiff and the defendant have filed two separate second appeals in this Court. Counsel for the appellant-defendant has urged that the Courts below have gone wrong in decreeing the suit of the plaintiff to the extent of Rs. 5,153/- and that suit ought to have been dismissed in toto inasmuch as the Courts below have contravened the provisions of Section 12 of the Punjab Debtors Protection Act, 1936. It reads as follows :- "Notwithstanding anything to the contrary contained in any other enactment for the time being in force, the burden of proving that any consideration alleged to have been paid by a money-lender actually passed shall be on him; unless the consideration is acknowledged by a debtor in his own handwriting or has been endorsed by the registering officer acting under clause (c) of sub-section (1) of Section 58 of the Indian Registration Act, 1908, as having been paid in his presence." A reading of this Section shows that the burden of proof that the consideration, which is alleged to have been paid by a money-lender, shall be on him, unless the consideration has been acknowledged by a debtor in his own hand-writing or has been endorsed by the registering officer acting under clause (c) of sub-section (1) of Section 58 of the Indian Registration Act, 1908, as having been paid in his presence. Admittedly, in this case, the consideration was not acknowledged by the debtor in his own handwriting. It has also not been endorsed by the registering officer acting under clause (c) of sub-section (1) of Section 58 of the Indian Registration Act, 1908, as having been paid in his presence. The only evidence produced by the plaintiff is his own statement and that of the scribe. No marginal witnesses have been produced. The Courts below have gone legally wrong in holding that the onus is discharged by the statement of the creditor and the scribe. The scribe too did not say about the passing of consideration. If the burden of proof regarding passing of consideration is to be, discharged like this, then the provisions of Section 12 of the Punjab Debtor's Protection Act, 1936 would be rendered meaningless because in every case the statement of the creditor would also be there in support of the passing of the consideration. It is implicit in this provision that inspite of the proof of the execution of the document, if the creditor is money-lender, it is for him to show that the alleged consideration did actually pass. It is a departure from the normal rule of law that burden of proving the consideration is cast on the creditor. The debtor has specifically denied his liability in the written statement before the Court. No question was put in cross-examination to him regarding the endorsement and the actual amount advanced to him by the plaintiff-respondent on various dates. The respondent admitted in his statement as PW3 that the first amount of Rs. 480/- was advanced by him to the appellant in the year 2016 BK., the next year Rs. 200/- more were advanced vide Exhibit P-8 and Rs. 1,000/- vide Exhibit P-9 - thus a total sum of Rs. 5153/- were passed in cash on different dates. The allegations are that no amount was ever returned by the appellant-defendant and if no amount was returned, it is highly unnatural conduct of the respondent-plaintiff that he would go on advancing the amounts to the appellant-defendant particularly when he does not belong to his village. Admittedly, no six-monthly statement of accounts as required under the Punjab Regulation of Accounts Act, 1930, were rendered to the appellant. All these circumstances show that the plaintiff has failed to prove that the consideration as alleged by him has actually passed to the defendant. For the reasons recorded above, issue No. 1 is decided against the plaintiff and I hold that the plaintiff had failed to prove that a balance of Rs. 9,500/- is due to him from the defendant. In view of my finding on issue No. 1, issues Nos. 3 and 4 are also decided against the plaintiff.
(2.) For the reasons recorded above, this appeal is allowed, with costs, the judgment and decree of both the Courts below are set aside and the plaintiff's suit is dismissed with costs. However, on the oral request of the learned counsel for the plaintiff-respondent, I grant leave to file a letters patent appeal.;