Judgment dated 01.02.2022
in A.S.No.13 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 01.02.2022
Coram:
THE HONOURABLE MR.JUSTICE T.RAJA
and
THE HONOURABLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
A.S.No.13 of 2017
D.Sivamani, S/o Durairaj .. Appellant/plaintiff
Vs.
V.Pandian, S/o Viliyappadevar .. Respondent/defendant
Appeal Suit (First Appeal) filed under Section 96 of the Code of Civil
Procedure (CPC) read with Order 41 Rule 1 of CPC, against the judgment and
decree dated 17.08.2016 in O.S.No.570 of 2012 on the file of the IV Additional
District Court, Coimbatore.
For appellant : Mr.C.R.Prasanan
For respondent : Mr.J.Franklin
JUDGMENT
(The Judgment of the Court was delivered by T.Raja,J) This appeal is filed by the unsuccessful plaintiff, who had lost his suit for recovery of money before the trial Court, questioning the correctness and findings/conclusions arrived at therein.
Page No.1/25 https://www.mhc.tn.gov.in/judis Judgment dated 01.02.2022 in A.S.No.13 of 2017
2. The learned counsel for the appellant/plaintiff, while heavily attacking the reasons given by the trial Court for wrongly dismissing the suit filed by him for recovery of a sum of Rs.18,48,000/- with subsequent interest at the rate of 18% per month from the date of suit till the realisation, argued that the appellant/plaintiff and the respondent/defendant are friends and that on 19.06.2009, the respondent/defendant had borrowed a sum of Rs.12 lakhs from the appellant/plaintiff for his urgent family needs. On the same day, the defendant also executed a Promissory Note (for short, 'pro-note'), which is marked as Ex.A-1, promising the appellant/plaintiff to re-pay the same with interest @ 18% p.m. on demand, but surprisingly, from the date of the borrowal of the said amount, the respondent/defendant failed to re-pay the principal amount and also neglected to pay even the interest thereon, inspite of repeated demands made by the plaintiff in person. Therefore, the appellant/plaintiff issued registered legal notice Ex.A-2, through his counsel on 24.08.2010 calling upon the respondent/defendant to pay back the principal amount with interest and the same was also served on the defendant on 25.08.2010 (Ex.A-3 acknowledgement card). After receipt of the legal notice, the defendant made a request to the plaintiff for granting time for re-payment of the loan amount along with interest. Believing the said words, the appellant/plaintiff waited for some Page No.2/25 https://www.mhc.tn.gov.in/judis Judgment dated 01.02.2022 in A.S.No.13 of 2017 more time, but however, the defendant evaded from complying with his promise. Therefore, finding that the defendant has been evading from making payment of the principal amount and also the interest, the plaintiff has filed the present suit on 15.06.2012 against the defendant to pay Rs.18,48,000/- with subsequent interest @ 18% per month, from the date of suit till the date of realisation and also to pay costs of the suit.
3. The respondent/defendant has filed written statement denying the case of the appellant/plaintiff, by stating that the plaintiff was a stranger to him and thereupon, he has also denied the execution of the suit pro-note on 19.06.2009, as also the borrowal of Rs.12 lakhs from the plaintiff for the alleged urgent family and business needs. The defendant, apart from stating the plaintiff as a total stranger, took a stand that he borrowed some money from one Vadivel of Tiruppur Chetti Palayam Village on 29.04.2008 and executed several blank pro- notes/cheque-leaves and also executed registered Power of Attorney, dated 29.04.2008 with respect to his house property in favour of the said Vadivel as security for the said amount, but the said Vadivel started acting adverse to the interest of the defendant and when the defendant has re-paid the loan amount to the said Vadivel on 16.09.2009, thereupon, the Power of Attorney executed in favour of the said Vadivel, was cancelled and although the said Vadivel assured Page No.3/25 https://www.mhc.tn.gov.in/judis Judgment dated 01.02.2022 in A.S.No.13 of 2017 return of the blank pro-notes and cheque leaves, he delayed the same, alleging that they were misplaced. Believing his words, the defendant did not press for speedy return of the document(s), but subsequently, the said Vadivel, in collusion with the plaintiff, has set up the plaint and through the plaintiff, he has filed the present suit for recovery of huge amount.
4. The trial Court, after framing three issues, accepted the case of the respondent/defendant that the appellant/plaintiff has failed to establish that he was not a stranger to the defendant, that the payment having been made by way of cash, the plaintiff has not proved his capacity to advance the suit amount, that during the course of cross-examination, though the appellant/plaintiff (P.W.1) deposed that, for his daughter's marriage, and for construction of his house, the defendant had borrowed the money from him and that part of deposition was also not supported by other clinching evidence, that no Income Tax Returns were filed by the appellant/plaintiff, though he claimed that he was an Income Tax Assessee, to establish that on the crucial date of execution of the pro-note, he was keeping sufficient money for lending to the defendant and that the agreement was void under Section 23 of the Indian Contract Act.
5. Learned counsel for the appellant/plaintiff pleaded that, when it is the Page No.4/25 https://www.mhc.tn.gov.in/judis Judgment dated 01.02.2022 in A.S.No.13 of 2017 clear case of the appellant/plaintiff that on 19.06.2009, the defendant had borrowed a sum of Rs.12 lakhs for his urgent family needs, on the same day, the defendant had also executed pro-note in favour of the plaintiff with a promise to repay the same. The defendant, in his written statement, has clearly admitted his signature in the pro-note. But however, the defendant pleaded that on 29.04.2008, he borrowed some money from the said Vadivel and issued pro- note(s) and cheque leaf/leaves and also executed the registered Power of Attorney with respect to his house property in favour of the said Vadivel as security for the said amount, but the said Vadivel started to act adverse to the interest of the defendant, and therefore, the defendant, after re-paying the loan amount, cancelled the Power of Attorney on 16.09.2009. But he has not taken back the blank pro-note and cheque leaves, which clearly shows his admission that several blank pro-notes signed by him, were left with Vadivel and that the said Vadivel, according to him, has gone in collusion with the plaintiff and finally, to wreak vengeance, had filed the suit through the plaintiff. As a matter of fact, the defendant has signed in the pro-note and that he is said to have left the same with Vadivel, who also came to the witness box and was examined as D.W.2 before the trial Court and he also spoke against the defendant saying that at no point of time, the defendant had any transaction with the said Vadivel by leaving any blank pro-note or cheque leaves. Therefore, the defendant has, not Page No.5/25 https://www.mhc.tn.gov.in/judis Judgment dated 01.02.2022 in A.S.No.13 of 2017 only in the written statement, taken a weak and concocted defence, but also before the trial Court by stepping into the witness box and also attempted to mislead the Court saying that the blank pro-note and cheque leaves given to the said Vadivel, have been misused by the plaintiff in collusion with the said Vadivel, and the moment the said Vadivel comes into picture and deposed against the defendant, he had demolished his case that there was no such pro- note given by the defendant to him.
6. Drawing our attention to Section 114 of the Indian Evidence Act, the learned counsel for the appellant/plaintiff submitted that the Court may presume existence of any fact which the Court thinks likely to have happened.
7. Coming to Section 118 of the Negotiable Instruments Act, the learned counsel for the appellant/plaintiff argued that, when the signature of the defendant on the pro-note is proved with oral and documentary evidence, the presumption under Section 118 of the Negotiable Instruments Act clearly arises, until the contrary is proved.
8. In support of his submissions, the learned counsel for the appellant/plaintiff relied heavily on the judgment of this Court in the case of Page No.6/25 https://www.mhc.tn.gov.in/judis Judgment dated 01.02.2022 in A.S.No.13 of 2017 Ramasami Moopar Vs. Ramaswami Moopanar, reported in 2002 (4) LW 360 and submitted that this Court, while considering similar issue, held that when the signature in the pro-note is admitted therein and when the signatory states that he executed the pro-note in blank, it is an incohate pro-note, i.e. the plaintiff therein authorised the creditor to fill-up the pro-note. In that case, it was further held that when the plaintiff has filed the suit based on the pro-note and the pro- note also proved to have been executed, Section 118(a) raises presumption, until the contrary is proved that the pro-note was made for consideration. In the case on hand, this crucial and vital aspect had been overlooked by the trial Court, and therefore, the impugned judgment and decree of the trial Court are liable to be set aside.
9. Coming to the execution of the pro-note established before the trial Court, the learned counsel for the appellant/plaintiff submitted that, when the plaintiff has claimed that the pro-note was executed on 19.06.2009 by the defendant, for borrowing the sum of Rs.12 lakhs, the said pro-note was signed by the defendant and attested by one Mr.Radhakrishnan and another witness Sukumaran (P.W.2). Since this has been disputed by the defendant before the trial Court, the appellant/plaintiff was able to substantiate the execution of the pro-note by producing Sukumaran as P.W.2, who had rightly come to the witness Page No.7/25 https://www.mhc.tn.gov.in/judis Judgment dated 01.02.2022 in A.S.No.13 of 2017 box before the trial Court and supported the case of the plaintiff saying that the pro-note, dated 19.06.2009 was executed by the defendant to the plaintiff, and that in the pro-note, it was wrongly typed as if the pro-note was brought by the plaintiff, and it was corrected in the presence of both the plaintiff and the defendant showing as if the said pro-note was brought by the defendant. Such was the genuineness of the evidence produced by the plaintiff in support of Sukumaran/P.W.2.
10. Above all, when the defendant has produced Vadivel (D.W.2) to support his case, surprisingly, the said Vadivel, instead of supporting the case of the defendant, had disproved the case of the defendant and supported the case of the plaintiff, saying that, as pleaded by the defendant in the written statement, he has left some blank cheques signed and also signed some blank pro-notes. He has specifically stated that on 29.04.2008, the defendant had borrowed some amount from him, but the said Vadivel has totally denied the case of the defendant that the defendant never executed any blank pro-note or cheque leaves, and therefore, the question of parting with the blank pro-note and cheque leaves to the custody of the plaintiff for the purpose of filing the suit, is far from acceptance.
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11. Therefore, when the defendant has set up a wrong case against the plaintiff, saying that the blank pro-note and cheque leaves left with Vadivel, have been misused by him in collusion with the plaintiff and the same has also been disproved by D.W.2/Vadivel and that the execution of the pro-note has also been established by the appellant/plaintiff and hence, the irrelevant findings rendered by the trial Court, stating that the defendant was a stranger to the plaintiff, is unjustified.
12. Moreover, when the plaintiff in his evidence as P.W.1, has clearly established that, both the plaintiff and the defendant were close friends from the date the defendant took the plaintiff to show him a land, as the defendant was also doing Real Estate business, the trial Court cannot come to the conclusion that he was a stranger.
13. Coming to the non-filing of the Income Tax Returns by the plaintiff, it is submitted that when the defendant has not taken such a specific plea in the written statement, there-upon, no pro-note was given to the plaintiff to refute the same. Therefore, on the unpleaded averments, the trial Court ought not to have given a finding, holding that no Income Tax Return was filed by the plaintiff, though he claimed that he was an Income Tax Assessee and therefore, Page No.9/25 https://www.mhc.tn.gov.in/judis Judgment dated 01.02.2022 in A.S.No.13 of 2017 his capacity to advance the loan amount was unbelievable and is without any substance.
14. For all the above reasons, the learned counsel for the appellant/plaintiff prayed for reversing the impugned judgment and decree of the trial Court by interfering with the same and allow the present appeal.
15. The learned counsel appearing for the respondent/defendant pleaded that the findings and conclusions arrived at by the trial Court, are well-said reasons, specifically giving a finding that the defendant was a stranger to the plaintiff and he has not even established his association with the defendant, and that the same cannot be found fault with.
16. Moreover, when the defendant has specifically justified his claim that when there was a transaction between the said Vadivel and the defendant, while borrowing some money on 29.04.2008, he had left several blank pro-notes along with the cheque leaves on the date of execution of the registered Power of Attorney and it was cancelled due to some problem that had cropped up between them, but unfortunately, the defendant has not re-claimed the blank pro-note and the cheque leaves, and the said Vadivel, in an effort to wreak Page No.10/25 https://www.mhc.tn.gov.in/judis Judgment dated 01.02.2022 in A.S.No.13 of 2017 vengeance against the defendant, had parted with the said pro-note with the plaintiff and by misusing the said pro-note and cheque leaves, the appellant/plaintiff has filed the present suit, which has been rightly dismissed by the trial Court on the ground that the plaintiff has failed to establish the relationship and association with the defendant, who was a stranger, that the plaintiff has not even established the execution of the pro-note, and that the plaintiff, having claimed that he was an Income Tax Assessee, has not even filed the Income Tax Returns showing that he was having capacity to advance the huge loan amount to the defendant. Therefore, according to the learned counsel for the respondent/defendant, the trial Court has rightly appreciated the claim and counter-claim of the parties and gave a finding that the case of the appellant/plaintiff was concocted and artificial and also an after-thought, and the impugned judgment of the trial Court may not be interfered with, unless there is strong material evidence to reverse the judgment of the trial Court, and thus prayed for dismissal of the present appeal.
17. This Court, having heard the parties, frames the following questions for determination in this appeal :
(i) Whether the pro-note executed on 19.06.2009 by the defendant in favour of the plaintiff for borrowing a sum of Rs.12 lakhs by the Page No.11/25 https://www.mhc.tn.gov.in/judis Judgment dated 01.02.2022 in A.S.No.13 of 2017 respondent/defendant, was substantiated by oral and documentary evidence by the appellant/plaintiff ?
(ii) Whether the appellant/plaintiff and the respondent/defendant were strangers to each other ?
(iii) Whether the said Vadivel of Tirupur Chetti Palayam Village, has gone along with the plaintiff, in collusion with whom, by misusing the blank pro- note/cheque leaves, filed the present suit for recovery of money ? and
(iv) Whether Section 23 of the Indian Contract Act can be invoked in this case ?
18. Question No.(i) Whether the pro-note executed on 19.06.2009 by the defendant in favour of the plaintiff for borrowing a sum of Rs.12 lakhs by the respondent/defendant, was substantiated by oral and documentary evidence by the appellant/plaintiff ?
When it has been claimed by the appellant/plaintiff that on 19.06.2009, the respondent/defendant had borrowed a sum of Rs.12 lakhs from the appellant/plaintiff for his urgent family needs and on the same day, he has also executed the pro-note in favour of the plaintiff with a promise to re-pay the same with interest @ 18% per month, the suit has been filed for the reason that the defendant has been evading payment of the principal amount and also the Page No.12/25 https://www.mhc.tn.gov.in/judis Judgment dated 01.02.2022 in A.S.No.13 of 2017 interest.
19. In paragraph 8 of the written statement filed by the defendant, it was specifically the case of the defendant that the said Vadivel of Tirupur Chetti Palayam Village, was a person from whom the defendant has borrowed some amount and also issued several blank pro-notes and cheque leaves and also executed a registered Power of Attorney with respect to the house property in favour of the said Vadivel as security for the said amount. But the said Vadivel started acting adverse to his interest, and therefore, on 16.09.2009, the defendant, after re-paying the loan amount, cancelled the Power of Attorney Deed, but he has failed to receive the blank pro-notes and cheque leaves, but these blank pro-notes and cheque leaves have been misused by the said Vadivel in collusion with the plaintiff, who filed the present suit for recovery of the said sum of Rs.18,48,000/-.
20. Further, the defendant has taken a plea that on 29.04.2008, when the defendant borrowed some amount from the said Vadivel and by issuing the pro- notes, executed registered Power of Attorney with respect to the house property in favour of the said Vadivel as security, and after some misunderstanding, the said Power of Attorney was cancelled, but for the reason that the said Vadivel Page No.13/25 https://www.mhc.tn.gov.in/judis Judgment dated 01.02.2022 in A.S.No.13 of 2017 told the defendant that he has misplaced the blank pro-notes and cheque leaves, he was not able to receive the same. But subsequently, in an effort to wreak vengeance by utilising the blank pro-note in collusion with the plaintiff, the present suit has been filed by the plaintiff.
21. In the proof affidavit filed by the defendant before the Court below, he has taken a completely diametrically opposite stand that when the said Vadivel has demanded exorbitant interest, he refused to return the documents. Therefore, when the defence taken by the defendant, has been self-broken and this has been completely overlooked by the trial Court, in our considered opinion, when the blank pro-note and cheque leaves were signed by the defendant, it goes without saying that only for the purpose of borrowing the suit amount on 19.06.2009, he has left the pro-note with the custody of the plaintiff for the simple reason that Section 118 of the Negotiable Instruments Act clearly goes to support the claim of the plaintiff.
22. This Court had an occasion to deal with the similar issue, in the decision reported in 2002 (4) LW 360 (supra), wherein it has been held that when the signature in the pro-note is admitted and the signatory states that he executed the pro-note in blank, it is incohate pro-note. Paragraphs 7 and 8 of the Page No.14/25 https://www.mhc.tn.gov.in/judis Judgment dated 01.02.2022 in A.S.No.13 of 2017 above decision reads as follows:
"7. The Supreme Court in Mohideenkutty Hajee Vs. Pappu Manjooran (1996 (8) SCC 586), following a number of earlier pronouncements, held that when a suit is based on a promissory note and the promissory note is proved to have been executed, Section 118(a) raises a presumption, until the contrary is proved, that the promissory note was made for consideration. In the case of Kundan Lal Vs. Custodian Evacuee Property (AIR 1961 SC 1316), the Supreme Court has held that the presumption under Section - 118 Negotiable Instruments Act is one of law and a Court shall presume, inter alia, that the Negotiable Instrument was made or endorsed for consideration. Therefore, the said Judgment of the learned Single Judge is not in conformity with the Judgment of the Supreme Court. Under Section-118 of the Negotiable Instruments Act, there is a valid presumption with respect to consideration also. Inasmuch as the learned Single Judge has held that there is no presumption for consideration, it is not a good law.
8. P.W-1 in his evidence has categorically stated that he paid a sum of Rs.25,000/- on 27.07.1982 and that amount was received by the defendants in the suit for discharging of a promissory note executed by them in favour of one Palanimuthu Naicker for a sum of Rs.7,500/- on 05.08.1991 and that discharge promissory note has also been marked as Ex.A-2, When the signature in the promissory note is admitted and when the signatory states that he executed the promissory note in blank, it is an incohate promissory note, that is, the plaintiff authorises the creditor to fill up the promissory note.
The plaintiff thereafter claims that it has been forged with false particulars. The evidence of PWs-1 and 2 proves that the plaintiff has paid Rs.25,000/- on 27.07.1982 and as a guarantee for repayment, the Page No.15/25 https://www.mhc.tn.gov.in/judis Judgment dated 01.02.2022 in A.S.No.13 of 2017 appellant has executed the promissory note. The Judgment of the trial Court is legal and valid. We find some force to interfere with the same;"
The above said legal position has been completely overlooked by the trial Court. Therefore, Question No.(i) is answered holding that there has been execution of pro-note.
23. Question No.(ii) Whether the appellant/plaintiff and the respondent/defendant were strangers to each other? and Question No.(iii): Whether the said Vadivel of Tirupur Chetti Palayam Village has gone along with the plaintiff, in collusion with whom, by misusing the blank pro-note/cheque leaves by the defendant, filed the present suit for recovery of money ?
The plaintiff has also pleaded that he has come in contact with the defendant, as the defendant was doing Real Estate business, but this has not been disputed by the defendant anywhere. Therefore, the finding given by the trial Court that the defendant was a stranger to the plaintiff, is without any basis.
24. Moreover, when the respondent/defendant, while denying the Page No.16/25 https://www.mhc.tn.gov.in/judis Judgment dated 01.02.2022 in A.S.No.13 of 2017 execution of the pro-note on 19.06.2009 for borrowing the said sum of Rs.12 lakhs from the plaintiff for the alleged urgent family and business needs, also pleaded that the plaintiff was a total stranger and was unknown to him. The plaintiff has explained that the relationship with the respondent/defendant has begun only when the plaintiff met the defendant who was doing Real Estate business at the relevant point of time, and subsequently, the defendant took the plaintiff to show the land for purchase of the same and this aspect has not been adequately denied.
25. Further, when the blank pro-notes and the cheque leaves signed by the defendant, are said to have been left with the said Vadivel, which were already found in possession of the appellant/plaintiff, the defence made by the appellant/plaintiff that only Vadivel with whom he was having money transaction, has given away the pro-note(s) and cheque leaves to the plaintiff to file the suit for recovery of money, which in our considered opinion, after seeing the evidence of Vadivel, disappeared and falls to the ground, inasmuch as the said Vadivel, while appearing as D.W.2, has explained fairly before the trial Court that the defendant has not left any blank pro-note with him, nor any cheque leaves, although there was a registered Power of Attorney executed on 29.04.2008 by the defendant in favour of the said Vadivel and the same was subsequently Page No.17/25 https://www.mhc.tn.gov.in/judis Judgment dated 01.02.2022 in A.S.No.13 of 2017 cancelled, and that the relationship between them came to an end and therefore, false defence is taken by the defendant that Vadivel has refused to return the blank pro-note(s) along with the cheque leaves, on the ground that they were misplaced, and the same is a total falsehood.
26. Therefore, the theory of the respondent/defendant being stranger to the defendant, has been made only for the purpose of wriggling out of civil liability of paying back the suit money.
Question Nos.(ii) and (iii) are answered in the above terms in favour of the plaintiff and against the defendant.
27. Question No.(iv): Whether Section 23 of the Indian Contract Act can be invoked in this case ?
This Court has found that the pro-note was executed by the defendant on 19.06.2009 in the presence of two witnesses, namely Radhakrishnan and Sukumaran/P.W.2 and the said Sukumaran had come into the witness box and he had clearly spoken about the execution of the pro-note by the defendant in favour of the plaintiff, and no contra evidence has been produced by the defendant to create any confusion on the veracity of the truth spoken by P.W.2 Sukumaran, and therefore, when the execution of the pro-note has been Page No.18/25 https://www.mhc.tn.gov.in/judis Judgment dated 01.02.2022 in A.S.No.13 of 2017 established by one of the witnesses to the pro-note, namely P.W.2 Sukumaran, the invocation of Section 23 of the Indian Contract Act by the learned trial Judge, is beyond the scope of the suit, as it is totally unwarranted and the finding rendered by the learned trial Judge on that score is totally unacceptable to the case situation herein-above. Further, Section 23 of the Indian Contract Act states that the consideration or object of an agreement, is lawful, unless the consideration or object of an agreement is of such nature that if permitted, the same would defeat the provisions of law.
28. In the case on hand, simple money transaction had taken place between the appellant/plaintiff and the respondent/defendant on 19.06.2009 for borrowing the sum of Rs.12 lakhs. When the defendant has clearly admitted his signature in the several blank pro-notes, which were said to have been given to the said Vadivel, who deposed as D.W.2, and instead of supporting the case of the defendant, the said Vadivel had come to the witness box and spoke the truth of the incident that had taken place on 29.04.2008 clearly mentioning that the defendant had not left any blank pro-note with him, and therefore, the case of the plaintiff has been accepted and that the defendant alone has come to the plaintiff on 19.06.2009 for the purpose of borrowing a sum of Rs.12 lakhs for urgent family and business needs and has executed pro-note in favour of the Page No.19/25 https://www.mhc.tn.gov.in/judis Judgment dated 01.02.2022 in A.S.No.13 of 2017 plaintiff with promise to re-pay the same with interest @ 18% per month. Therefore, in our considered opinion, when the execution of the pro-note has been established by both oral and documentary evidence by the appellant/plaintiff, we are not able to find any unlawful object of invoking Section 23 of the Indian Contract Act. Therefore, holding that the learned trial Judge has travelled beyond the scope of the case of the plaintiff, and wrongly applying Section 23 of the Indian Contract Act, the learned trial Judge had erroneously dismissed the suit and the same is found to be unjustified. Accordingly, Question No.(iv) is answered in favour of the plaintiff and against the defendant.
29. Moreover, in regard to the execution of the pro-note, while dealing with the identical situation, one of us (T.Raja, J) in the case of Krishnamurthy Vs. Sivaji, reported in 2012 SCC Online Madras 5318 = AIR 2013 Madras 35, held in paragraphs 8 and 12 as follows:
"8. Further, he has also relied upon one another judgment of this Court in Abdul Hameed Vs. Senkottai Gounder, 2009 (1) MLJ 979 for a proposition that if the attesting witnesses and the scribe depose on oath the relevant circumstances relating to the execution of a promissory notice, it would not be necessary to call for expert opinion, because the Court is not invariably expected to call for expert opinion in all cases, to find out whether the signature/thumb impression is genuine."
Page No.20/25 https://www.mhc.tn.gov.in/judis Judgment dated 01.02.2022 in A.S.No.13 of 2017 "12. It is an admitted fact that the plaintiffs had issued notice dated 18.12.2001 calling upon the defendant to repay the borrowed amount of Rs.1 lakh each taken from the plaintiffs. The defendant, who is also working as Deputy Chief Engineer in Neyveli Lignite Corporation, should have immediately sent his reply with some denial, but he has not replied to the notice. That apart, the defendant, by going into the witness box before the trial Court, has completely taken inconsistent stand by denying not only his signature found in the promissory notes, but also his signature in Vakalat filed before the Court, therefore, the learned trial Court looking at the inconsistent and self-contradictory argument, by disbelieving the entire defence made before the trial Court, has decreed the suits filed by the plaintiffs. On appeal, the learned first Appellate Court, without taking into account the case of the plaintiffs that they have proved their initial burden of execution of promissory notes, erroneously held that the plaintiffs have failed to prove the execution of promissory notes. In this case, as rightly submitted by the learned Counsel for the appellants, the law is well settled that when initial burden is discharged by the plaintiff, the burden shifts to the defendant to prove that the promissory note is not supported by valid consideration, therefore, it is for the defendant to rebut the presumption by successfully establishing that he did not receive any consideration by direct evidence or by bringing on record the preponderance of probabilities. In this context, it is relevant to refer to para 18 of T.G.Balaguru's case (supra) (T.G.Balaguru Vs. Ramachandran Pillai - 2010 (2) MLJ 861) , which is held thus:
"18. As soon as execution of promissory note is proved, rule of presumption laid down under Section 118 of Negotiable Instruments Act is to be raised that promissory note is supported by Page No.21/25 https://www.mhc.tn.gov.in/judis Judgment dated 01.02.2022 in A.S.No.13 of 2017 consideration. Presumption under Section 118 of Negotiable Instruments Act is one of law and thereunder a Court shall presume inter alia that negotiable instrument or the endorsement was made for consideration. Once statutory presumption is raised, onus of proving absence of consideration is on the executant. When initial burden is discharged by the plaintiff, the burden shifts to the defendant to prove that the promissory note is not supported by valid consideration. It is for the defendant to rebut the presumption by establishing that he did not receive consideration by direct evidence or by bringing on record the preponderance of probabilities."
30. The above observations made by the Court in the said decision, clearly show that if any of the attesting witnesses or a scribe goes to the Court and depose on oath bringing to the notice of the Court the relevant circumstances relating to the execution of a pro-note, it would be unnecessary to call for the expert opinion. Further, in this case, as observed in the above decision, the execution of the pro-note has been proved.
31. Similarly, in the present case also, when the execution of the pro-note itself had been clearly established by unimpeachable evidence adduced by P.W.2 Sukumaran, we are unable to find any justification in the judgment of the trial Page No.22/25 https://www.mhc.tn.gov.in/judis Judgment dated 01.02.2022 in A.S.No.13 of 2017 Court to ignore and overlook such settled legal position.
32. For all the above reasons, when the plaintiff having executed the pro- note on 19.06.2009, looking at the conduct of the defendant, we are able to see that when the pro-note was executed on 19.06.2009 for borrowing the sum of Rs.12 lakhs from the appellant/plaintiff, denying the various relationship of the appellant/plaintiff with the respondent/defendant as a total stranger and again denying the execution of the pro-note, when he has pleaded that the blank pro- note signed by him, left with D.W.2 Vadivel, has been, in collusion with the plaintiff, used for filing the present Civil Suit for recovery of money, deprecating such conduct, we impose costs of Rs.25,000/- (Rupees twenty five thousand only) payable by the respondent/defendant to the appellant/plaintiff.
33. Accordingly, while we set aside the impugned judgment and decree of the trial Court, we allow this First Appeal (Appeal Suit) with costs of Rs.25,000/- as stated above, to be paid by the respondent/defendant to the appellant/plaintiff, within a period of four weeks from the date of receipt of a copy of this judgment.
34. Further, as regards payment of interest, the plaintiff is entitled to Page No.23/25 https://www.mhc.tn.gov.in/judis Judgment dated 01.02.2022 in A.S.No.13 of 2017 interest @ 18% p.m. from the date of pro-note, i.e. from 19.06.2009 till the date of filing of the suit on 15.06.2012 and at 9% from the date of suit on 15.06.2012 till the date of decree of the trial Court on 17.08.2016 and at 6% from the date of decree on 17.08.2016 till the date of realisation.
(T.R.J) (D.B.C.J)
01.02.2022
Index : Yes
Speaking Order: Yes
cs
To
1. The Fourth Additional District Judge, Coimbatore.
2. The Section Officer, V.R.Section, High Court, Madras. Page No.24/25 https://www.mhc.tn.gov.in/judis Judgment dated 01.02.2022 in A.S.No.13 of 2017 T.RAJA, J and D.BHARATHA CHAKRAVARTHY, J cs A.S.No.13 of 2017 01.02.2022 Page No.25/25 https://www.mhc.tn.gov.in/judis