Scribd Logo
Upload

Welcome to Scribd!

  • Air 1999 SCC 1008

    Uploaded by

    krishna reddy
    11 views11 pages

    Original Title

    air 1999 scc 1008

    Copyright

    © © All Rights Reserved

    Available Formats

    PDF or read online from Scribd

    Did you find this document useful?

    Is this content inappropriate?

    Report this Document

    Copyright:

    © All Rights Reserved
    Download as PDF or read online from Scribd
    Flag for inappropriate content
    11 views11 pages

    Air 1999 SCC 1008

    Uploaded by

    krishna reddy

    Copyright:

    © All Rights Reserved
    Download as PDF or read online from Scribd
    Flag for inappropriate content
    of 11
    1008 $.€. - Bharat Barrel and Drum Manufacturing Co. v. Amin Chand Payrelal has a force of law, whether still the appellant would be entitled for any relief under it? Learned counsel for the appellant while challenging the High Court finding that since there existed Sec- tion 51 in the aforesaid 1932-Act dealing with the unoccupied land, hence the appellant case would only be governed under it and not under the Notification No. 71, he further submitted this, to be erroneous and illegal as the said land was never unoccupied in spite of the declaration (de- claring) it to be Talugdeh, as the appellant con- tinued in possession over the said land and was never dispossessed. Thus Section 51 of the 1932 ‘Act would not apply. 13. We feel in either case the appellant can- not succeed. In case, after the declaration of the said land as Talugdeh (meaning declared as un- occupied by eviction) if the appellant continued in possession and the land was never unoccu- pied then it may be true that Section 51 of the 1932 Act would not apply but then for the same reason the appellant cannot take advantage of the Proclamation/Notification No. 71 also. Benefit under it was only given to such holders of land who were dispossessed from their land holding. If the appellant was never dispossessed and con- tinued to enjoy the land, the essential ingredient of that Notification that such holder must have been dispossessed, would be lacking. Thus, un- less the appellant was dispossessed from his hold- ing question of preferential right for reallotment would never arise. When the appellant’s case even before us is that he was never dispossessed from his holding and continued in possession, in our considered opinion, he would not qualify for such preferential right even in terms of the said notification. 14. Normally, when the High Court has not gone into other points, though raised to which we satisfied ourself, we would have remanded the case back for the consideration of those other points. As the life of this case has already taken long number of years, we felt it appropriate in the interest of the parties, to which parties agreed, to dispose of these other points by this Court it- self as all relevant findings and the records are before this Court which we have considered. Lastly, we further find, from the perusal of the various orders passed by the Tehsildar, Sub-Di- visional Officer, Additional Collector, Board of Revenue, etc. that these authorities further did ALR, not grant this relief to the appellant for another reason to which we find merit as the dispute per. tain to the joint khata in which the appellant hag only 1/Sth share and as none of the other share. holders applied for such preferential right which js also not in dispute. That is why so far as the individual holding of the appellant for which he applied, he has succeeded for which there is no dispute. 15. Hence we do not find any merit in any of the grounds raised by the appellant for the rea- sons recorded above. Accordingly, the claim of the appellant fails though on different grounds than what was held by the High Court. The ap- peal is dismissed. Costs on the parties. Appeal dismissed, AIR 1999 SUPREME COURT 1008 (From : 1996 (2) Cal HN 327) V.N. KHARE AND R. P. SETHI, JJ. Civil Appeal No. 4576 of 1997, D/- 18-2- 1999. Bharat Barrel and Drum Manufacturing Com- pany, Appellant v. Amin Chand Payrelal, Re- spondent. Negotiable Instruments Act (26 of 1881), S. 118 — Promissory note — Presumption as to consideration — Burden of proof — Prom- issory note alleged to have been executed asa collateral security and not for “value received” as mentioned therein — Failure of defendant to prove non-existence of consideration — Onus cannot be shifted on plaintiff — Claim made by plaintiff has to be allowed even if evidence adduced by plaintiff is found to be unbelievable in rebuttal of defendant's case (1996) 2 Cal HN 327, Reversed. Once execution of the promissory note is ad- mitted, the presumption under Section 118(@) would arise that it is supported by consideration. Such a presumption is rebuttable. The defendant can prove the non-existence of consideration by raising a probable defence. If the defendant is Proved to have discharged the initial onus of proof showing that the existence of considera tion was improbable or doubtful or the same Was illegal, the onus would shift to the plaintiff who Will be obliged to prove it as a matter of fact and BQ/BQ/S 100067/99/BNG/CSL _ S as a la 1999 gponits failure Prove would dis- vant of relief on the basis of the nee mame The burden upon the defendant ag ievng the non-existence of the consideration be either direct or by bringing on record th feponserance of probabilities by reference to geeircumstances Upon Which he relies In such vent the plaintiff is entitled under law to rel mall the evidence led in the case includiay Werf the plaintiff as well. In case, where the defendant fails to discharge the initial onus of roof by showing the non-existence of the con eration, the plaintiff would invariably be held snitled t0 the benefit of presumption arising tinder Section 118 (a) in his favour, The Couct may not insist upon the defendant to disprove the existence of consideration by leading direct as existence of negative evidence is reither possible nor contemplated and even if led isto be seen with a doubt. The bare denial of the qassing of the consideration apparently does not appear to be any defence. Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. To disprove the presumption the defend- anthas to bring on record such facts and circum- stances, upon consideration of which the Court may either believe that the consideration did not exist or ils non-existence was so probable that 2 prudent man would, under the circumstances of the case, shall act upon the plea that it did not exist. (1996) 2 Cal HN 327, Reversed. entitle him to (Para 12) In instant case, the defendant alleged that the Promissory Note had not been executed for the Value received as mentioned therein but was ex- écuted by way of collateral security. A perusal of the written statement of the defendant would

    You might also like