Madras High Court
D.Sivamani vs V.Pandian on 1 February, 2022
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.
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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
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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
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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
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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
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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
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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
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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,
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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."
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"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
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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
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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
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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.
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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
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