A.M. Bhattacharjee, J.
1. This appeal arises out of a suit filed under the provisions of Order 37 of the Code of Civil Procedure for the recovery of the amount under 5 Hundies of the same date together with interest. The suit having been decreed, the defendants have filed this appeal.
2. The execution of the Hundies has not been denied by the defendant No. 2 deposing as a sole witness for the defendants, the other defendant, i.e. the defendant No. 1, being the partnership firm of which defendant No. 2 and his son are the partners. The execution of the Hundies by the defendants having been proved by PW-1 and not having been denied by DW-1, the Hundies obviously attract all the presumptions available under Section 118 of the Negotiable Instruments Act, 1881. The relevant portion of Section 118 of the Negotiable Instruments Act reads thus :--
"Until the contrary is proved, the following presumptions shall be made -
(a) that every negotiable instrument was made or drawn for consideration and that every such instrument, when it has been accepted indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration".
3. As observed by the Supreme Court in Kundan Lal v. Custodian, Evacuee Property AIR 1961 SC 1316 at p. 1318, referred to by the learned Judge in his judgment, this Section 118(a) lays down a special rule of evidence applicable to negotiable instruments. The presumption is one of law and a court shall presume, inter alia, that the negotiable instrument or the endorsement was made or endorsed for consideration and the burden of proof of want or failure of consideration is imposed on the maker of the instrument or the endorser, as the case may be.
4. We agree with the learned Judge that the mandatory presumption in favour of consideration of negotiable instruments flowing irresistibly from Section 118(a) of the Negotiable Instruments Act has not been rebutted in this case. The evidence in the case as made out in para 8, of the written statement as well as in the deposition is that one Naraindas was acting as defendant's financial broker for quite some time and in 1967 some blank Hundies signed by the defendants were handed over to that Naraindas to secure loan for the defendants. Without arranging any such loan, that Naraindas died in May, 1968 and in spite of their best efforts, the defendants could not get back their Hundies and the defendants apprehend that those blank Hundies have been utilised for the purpose of this suit.
5. If this was true, then, as pointed out by the learned Judge, the defendants were obviously expected to take some steps for the recovery of the Hundies after Naraindas's death from his officers, employees or legal representatives. But the defendants have done nothing of the sort and, on the contrary, DW 1 has admitted that he even does not know who are the legal representatives of that Naraindas, DW-1 has further admitted that he has never made any attempt in writing asking Naraindas or his representatives to return those blank Hundies, nor has he made any complaint about that to the police or any other authority. Admitting that he knows that Naraindas has a son, DW-1 has tried to say that he could not contact that son as "he having cheated many was keeping away from the market". But not a single witness from the market or elsewhere has been examined to prove the alleged abscondence of that son and DW-1 has ultimately admitted that he cannot say whom that son cheated and that he cannot name a single party so cheated. Naraindas is stated to have died in 1968; the demand notice Ext. 2 is admitted to have been served on the defendants in 1969 and the suit has been filed in 1972. If the defence case was true, then it was expected that many other businessmen having business relation with Naraindas and the defendants would have come to know about the defendants' failing to recover the signed blank Hundies from the employees or officers or the legal representatives of Naraindas. But no such witness has been examined and DW-1 has further admitted that though he received the demand notice, Ext. 2, as early as in 1969 and the suit was filed in 1972, he did not make any attempt to contact the son of Naraindas at his office or residence after the receipt of Ext. 2. It may be noted that the evidence of PW-1, is, however, that Naraindas's son still runs the business of his father and that PW-1 still sees him at times and actually saw him last even two days before he was deposing in court. In this state of evidence, we do not think that the learned Judge was in any way wrong in disbelieving the case sought to be made out by the defendants.
6. It is true that the plaintiff has not examined herself nor has produced any document to show that she had sufficient source to lend the money. But all these would have been relevant if only a permissive and optional presumption of consideration for the Hundies was available as under Section 114, Illustration (c) of the Evidence Act, whereunder a court may, and therefore in suitable cases may not, presume that a negotiable instrument was for consideration, A presumption under Section 114, Illustration (c) of the Evidence Act is of a general nature and applies in respect of all Bills of Exchange even though the dispute is not between the parties thereto or persons claiming under them. But as pointed out by the Supreme Court in Official Receiver v. Abdul Shakoor , Section 118, Negotiable Instruments Act, enacts a special rule of evidence to operate between the parties to the instrument or persons claiming under them and mandates the court to presume consideration until the contrary is proved. Therefore, if in spite of such obligatory presumption, the party concerned is required to adduce independent proof of passing of consideration, even though nothing has been proved to the contrary, the presumption under Section 118 would become useless and otiose. It is true that in Kundan Lal (AIR 1961 SC 1316 at p. 1319) (supra) the Supreme Court has pointed that the presumption under Section 118, Negotiable Instruments Act, even though mandatory, may stand rebutted under certain circumstances even by a contrary, though permissive presumption under Section 114, Illustration (g) of the Evidence Act arising out of deliberate withholding of material evidence. But there is nothing on record to show that the plaintiff was in a position to adduce better evidence, but deliberately abstained from doing so. The unchallenged evidence of PW-1 is that at the relevant time, the plaintiff had even no bank account or any books of accounts or the like.
7. We, therefore, dismiss the appeal and confirm the judgment and decree passed by the learned Judge, but without any order as to costs in this appeal.
Sukumar Chakravarty, J.
8. I agree.