Commentary:
Justification for the Plaint pleading in the above Money suit:
First turn to legal requirements for proof of right plaintiff entitled against the defendant. The essential requirements in a contract for money lending are:
a) proposal b) acceptance c) Intention to create legal relationship d) Lawful consideration e) competency of parties f) free consent g) possibility of performance.
a) In the given case defendant by approaching the plaintiff made a proposal to lend money by making out the reason, this becomes proposal on part of defendant.
b) Acceptance: Acceptance of such proposal by plaintiff to lend money @ 2% PM amount to acceptance.
c) Intention to create legal relationship: In view execution of demand pronote, the transaction suggests parties’ intention is to create legally binding relationship.
d) Lawful consideration: In the given case payment of money by plaintiff itself is the consideration as it creates liability on part of defendant towards plaintiff as per rules of consideration under Indian Contract Act.
e) Competency of the parties: The parties must be competent to enter into contract and it is with free consent.
f) Lawful object: The object for which money lent is lawful i.e, sister’s marriage of defendant.
g) Possibility of performance: Return of money and with a 2% percent PM is not an impossible obligation to perform.
Of the above facts showing competency, free consent, possibility of performing the contract generally not averred specifically as they are not possible to rebut. Generally, defendant can’t dispute that he is incapable of entering the contract. Second, if the defendant by way of written statement takes plea that contract is not supported by free consent generally, it rarely sustains because any such plea must be coupled proper action on part of defendant. To illustrate, if the pronote is executed under coercion, there must be a police report connected the incident to act upon such an averment. The remaining essentials of the contract must be specifically averred as they can be rebutted by defendant by way of defendant evidence.
Now let us turn to some specific terms averred in the Plaint such as acquaintance, hand loan, sister’s marriage, giving notice by plaintiff and response to it and plaintiff stand on it. Before adverting to these terms it is apt to refer provisions under S.4 and S.114 of Evidence Act. S.4 of the Evidence Act, 1872 says a fact is said to be proved when after considering the matters before it, the court either believes that it exists or considers its existence is so probable that the prudent man ought to act upon the supposition that it exists. S.114 says the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
The combined reading of S.4 and 114 Evidence Act suggest that for proof of a fact belief of court and what would happened in the common course of events have a crucial role in arriving at a opinion about occurrence of transaction. In other words apart from essentials of rights or duties there are certain other facts required to be proved. For this reason in the above plaint we plead above terms. Now turn to the reason for pleading these terms. In this connection it is important to bear in mind that any amount of evidence in the absence of pleading has no value.
First, acquaintance, the inorder to draw an inference that plaintiff lent money not to any stranger but to his close friend who is in dire need of money for specific purpose (i.e., marriage). Further, when there are good many persons including money lending institutions giving loans at cheaper rate than 2%, it is essential to show the specific reason to make out the reason for lending money. In other words in the absence of word acquaintance, if in the cross examination suggested that there is no sort of relationship between plaintiff and defendant, it raises a doubt about the interest of plaintiff lending money to an unknown person. It can also be argued that defendant is a money lender. It must be specifically stated as HAND LOAN otherwise as per certain state laws lending of money by any person is prohibited except licensed persons or institutions. Hand loan is permitted so as to meet extreme exigencies and ensure healthy relations between parties. Moreover, it requires variety of formalities to be complied for obtaining loan from authorized institutions.
Sister’s marriage: It helps in suggesting the necessity of the defendant and it also connect with order of events (S.114 IEA).
Notice is not mandatory under law for instituting money suit. However, it helps in two ways: first, we should know that money under contract is payable on demand as such issuance of notice help in showing in express terms demand for payment of money. Second, silence on part of the defendant with respect to notice claiming recovery of money suggest that he accepted the contention in the notice having regard to other circumstances u/s.114 of Evidence Act. Similarly the absence of plaintiff’s stand in plaint with respect to reply notice of the defendant will have similar effect. For this reason, in the plaint we have to mention matters relating to notice including the specific stand of the plaintiff with respect to reply notice in the plaint.
As per S.118 of the Negotiable Instruments Act, in a promissory note once the execution is admitted or proved, the burden of proof lies on the defendant to show that there is no consideration, the date and time is executed is not correct. There is a statutory direction to the court under this section to shall presume about certain issues such as consideration, date and time. Even then, it is always necessary and safe on part of the plaintiff to aver about consideration, date and time. For the reason in the event to discharge of burden by defendant either by cross or defendant evidence, plaintiff has to prove these facts. As such, if these terms are not averred, plaintiff even if he produce evidence, it has no use. For the simple reason evidence without pleading shall not be looked into.
Why we have left many other facts mentioned in the problem:
The fundamental rule of pleading is that state only material facts and not law or evidence. Facts must be stated briefly and precisely. The material facts are those which must proved for the decree of the suit. In the given case the material facts are essentials of contract and other specific terms as discussed above. Therefore, other factors such as elaborate facts about relationship between parties, emotional attitude of plaintiff at the time of lending money, urgent need of plaintiff for seeking return of money and his efforts in this regard need not be mentioned in the plaint. It is not necessary to specify about the person who scribed the instrument and his relations ship with the parties. All these become part of evidence.