Madras High Court
Nagarajan vs N.Venkatesan on 18 October, 2024
S.A.No.1274 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 18.10.2024
CORAM :
THE HONOURABLE MR. JUSTICE K. RAJASEKAR
Second Appeal No.1274 of 2012
and
Miscellaneous Petition No.1 of 2012
Nagarajan .. Appellant
Versus
N.Venkatesan .. Respondent
Second Appeal filed under Section 100 of the Civil Procedure Code
against the Judgment and decree dated 31.10.2012 passed in A.S. No. 62 of
2011 on the file of the III Additional District and Sessions Court, Cuddalore
at Virudhachalam confirming the Judgment and Decree dated 29.08.2011
passed in O.S. No. 110 of 2010 on the file of the Sub Court, Neyveli.
For Appellant : Mr. M. Tamil Thendral Arasu
For Respondent : Mr. S. P. Vishnu Prasanth
For Mr. V. Nicholas
JUDGMENT
This Second Appeal has been filed, challenging the concurrent
findings of the Courts below, whereby the suit for recovery of money filed
by the plaintiff was decreed and the appellant herein was directed to pay a
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sum of Rs.1,50,000/- with interest at the rate of 12% per annum from the
date of plaint till the date of decree and thereafter at the rate of 6% from the
date of decree till the date of realisation.
2. For the sake of convenience, the parties are referred as per their
ranking in the Trial Court.
3. The defendant, for the purpose of meeting his family expenses
borrowed a sum of Rs.1,50,000/- from the plaintiff and agreed to repay the
same with interest at the rate of 12% per annum and also executed a
promissory note on 15.05.2010, promising to repay the same on demand of
the plaintiff. Subsequently, the plaintiff requested the defendant to repay the
same but the defendant failed to respond, hence, the plaintiff has issued a
legal notice on 23.11.2010, calling upon the defendant to repay the entire
loan amount with interest. But the defendant though received the same has
not come forward to repay the same thereby, the plaintiff has come forward
to file the suit for recovery of money.
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4. The defendant filed his written statement and contested the suit on
the ground that he received only a sum of Rs.42,000/- along with his friend
Kumar from one Raj on 15.12.2007. On the same day, they executed
unfilled promissory note and handed over the same to his friend Kumar.
Similarly, he had also executed an unfilled promissory note to one
Rajasekar, Neiveli Township on behalf of P.K. Subramanian. Subsequently,
his friend Kumar died and therefore, the defendant has repaid the entire
loan amount borrowed through A.Kuravan Kuppam Ramachandran,
Periyakurichi Selvam, Township Rajasekar and settled entire loan amount
to Raj. These payments were made due to threat made by the said Raj. After
repayment of the entire loan amount, he demanded to return of promissory
note and the same was not returned back. Now with the help of plaintiff, the
suit has been filed against the defendant. The defendant is a permanent
employee of Neyveli Lignite Corporation Ltd., He never received any
amount from the plaintiff and hence, he is not liable to pay any amount to
the plaintiff.
5. Before the Trial Court, the plaintiff examined himself as P.W.1 and
the attestors of promissory note were examined as P.W.2 and P.W.3 and
Ex.P1 to Ex.P3 were marked. On the side of the defendants D.W.1 to D.W.4
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were examined but no document marked on his side.
6. Based on the pleadings made by both parties, the trial Court has
framed the following issues.
“1. Whether the plaintiff is entitled to get the
suit amount?
2. Is the promissory note is true?
3. To what other relief the plaintiff is entitled
for?”
7. The Trial Court after analysing the evidence and after hearing the
arguments had accepted the case of the plaintiff that the defendant has
executed promissory note but failed to repay the loan amount thereby, the
defendant is liable to pay the entire claim amount.
8. Aggrieved over the Judgment and Decree the defendant has filed
Appeal before the III Additional District and Sessions Court, Cuddalore,
Vridhachalam. The appellate Court, after hearing both side arguments
agreed with the findings of the trial Court and after independently
analyzing the evidence, confirmed the Judgment and Decree of the Trial
Court.
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9. The Second Appeal has been filed by the defendant challenging
the Judgments and Decree passed by the Trial Court and the Lower
Appellate Court.
10. The Second Appeal was admitted and substantial questions of
law also framed by this Court, as follows;-
“1. Whether the Courts below erred in law in
decreeing the suit by drawing presumption under
Section 118 of the Negotiable Instruments Act when the
defendant's rebutted the said presumption by sufficient
oral and documentary evidence and when the plaintiff
failed to discharge the burden of proof after the
rebuttal by the defendant?
2. Whether the Courts below erred in law in
holding that Ex.A1 promissory note is supported by
consideration by drawing presumption under Section
118 of the Negotiable Instruments Act even though the
defendant rebutted the said presumption?
3. Whether Courts below erred in law in holding
that the defendant borrowed the amount under Ex.A1
promissory note when the plaintiff failed to prove the
consideration by producing the account books, bank
statement, income tax returns, etc.?
4. Whether in law the Judgment and decree
passed by the Courts below are sustainable when they
have failed to consider and appreciate the oral and
documentary evidence on record in their proper
perspective and based their conclusions on mere
surmises and conjectures?”
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11. The learned counsel appearing for the appellant/defendant
submits that the defendant has examined almost 3 independent witnesses to
prove the fact that the defendant had executed a promissory note only in
favour of one Raj, who was examined as P.W.4. Even though, P.W.4-Raj
has not supported the case of the defendant but from the other independent
witnesses, the defendant has probabilized his case that he had received loan
only from P.W.4 - Raj. Admittedly, the plaintiff has not proved the passing
of consideration, by way of cash and by production of independent
documents other than the promissory note. Since passing of consideration
has not been established by the plaintiff, relying on presumption under
Section 118 of the Negotiable Instruments Act is not proper. After
examination of the defendant witnesses, the plaintiff has not discharge his
burden of proof. Both the Courts erred in invoking Section 118 of the
Negotiable Instruments Act in favour of the defendant in a case of this
nature and thereby, prays to set aside the Judgment and decree.
12. Per Contra, the learned counsel appearing for the respondent/
plaintiff submits that there is no evidence to support the case of the
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defendant that he had executed a promissory note in favour of said Raj.
Even it is admitted that if he had executed promissory note in favour of one
Raj, there is no evidence to show that promissory note executed in favour
of Raj is the suit promissory note produced by the plaintiff herein. There is
also no evidence produced to establish any relationship or collusion
between the plaintiff and P.W.4 – Raj. The defendant himself has stated in
his pleadings that he used to borrow loan from various persons and he has
given names of 3 persons in the written statement and stated that he had
executed promissory note for the loans borrowed, from them. He had
conveniently denied the promissory note, executed in favour of the
plaintiff. Based on the evidence for execution of promissory note even in
the absence of Section 118 of the Negotiable Instrument Act, the plaintiff's
case has been established and the defendant has to adduce contra evidence
to probabilize his case thereby, both the Courts below have rightly
dismissed the same and prays to dismiss the appeal.
13. I have considered the submissions made on both sides and also
perused the records.
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14. The main defence taken by the defendant is that, he had received
a loan amount of Rs.42,000/- but he subscribed signatures in the unfilled
promissory note and handed over the same to one Kumar whereas, it is the
case of the plaintiff that the defendant himself has borrowed a sum of
Rs.1,50,000/- and executed a promissory note in his favour on 15.05.2010.
The Demand Notice calling upon the defendant to pay the loan amount was
also issued on 23.11.2010 and the defendant has not issued any reply notice
or objections in this regard.
15. After decreeing the suit, the defendant has come forward to lodge
a complaint on 09.01.2011 to the Neyveli Township Police alleging misuse
of promissory note by P.W.4-Raj. The plaintiff was examined himself as
P.W.1 and he has deposed in support of his pleadings. P.W.1 has also stated
that the promissory note was written by P.W.2-Kumar and P.W.3-Karthick
had subscribed his signature as witness. They have also stated in favour of
execution of promissory note-Ex.P1. The only suggestion put by the
defendant to P.W.2 and P.W.3 is that they are the friends of P.W.1 and
thereby, they have come forward to adduce false evidence in favour of the
plaintiff. Even though they admit that they are known to P.W.1 they denied
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that they are tendering false evidence. The evidence of P.W.1 for execution
of promissory note which includes the receipt of Rs.1,50,000/- has been
accepted by both the Courts below. This Court while hearing the Second
Appeal against the concurrent finding, is not entitled to once again re-
appreciate the evidence which were thoroughly analysed by the courts
below.
16. The role of this Court while exercising jurisdiction under Section
100 of the Code of Civil Procedure has been considered by the Apex Court
in various Judgments and in Hero Vinoth vs. Seshammal [2006 (5) SCC
545 : AIR 2006 SC 2234] has considered the various previous Judgments
as held as follows:
“The principles relating to Section 100 of CPC,
relevant for this case, may be summerized thus:-
(i) An inference of fact from the recitals or
contents of a document is a question of fact. But the
legal effect of the terms of a document is a question of
law. Construction of a document involving the
application of any principle of law, is also a question
of law. Therefore, when there is misconstruction of a
document or wrong application of a principle of law in
construing a document, it gives rise to a question of
law.
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(ii) The High Court should be satisfied that the
case involves a substantial question of law, and not a
mere question of law. A question of law having a
material bearing on the decision of the case (that is, a
question, answer to which affects the rights of parties
to the suit) will be a substantial question of law, if it is
not covered by any specific provisions of law or settled
legal principle emerging from binding precedents, and,
involves a debatable legal issue. A substantial question
of law will also arise in a contrary situation, where the
legal position is clear, either on account of express
provisions of law or binding precedents, but the court
below has decided the matter, either ignoring or acting
contrary to such legal principle. In the second type of
cases, the substantial question of law arises not
because the law is still debatable, but because the
decision rendered on a material question, violates the
settled position of law.
(iii) The general rule is that High Court will not
interfere with concurrent findings of the Courts below.
But it is not an absolute rule. Some of the well
recognized exceptions are where (i) the courts below
have ignored material evidence or acted on no
evidence; (ii) the courts have drawn wrong inferences
from proved facts by applying the law erroneously; or
(iii) the courts have wrongly cast the burden of proof.
When we refer to 'decision based on no evidence', it
not only refers to cases where there is a total dearth of
evidence, but also refers to any case, where the
evidence, taken as a whole, is not reasonably capable
of supporting the finding.”
17. In this case, both the Courts below have analyzed the evidence of
P.W.1 to P.W.3 and they have recorded their finding that the promissory
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note itself is sufficient to prove the passing of consideration since there is a
clear acknowledgement of the receipt of the same. Further, the defendant
has not denied the thumb impression or signatures. After the plaintiff has
proved the consideration and the execution of the promissory note, then,
the burden shifts on the defendant to probabilize his case that the
promissory note was not executed in favour of the plaintiff.
18. The Apex Court in Kundan Lal Rallaaram vs. Custodian
Evacuee Property, Bombay (AIR 1961 SC 1316) declared that the Section
118 of the Negotiable Instruments Act lays down a special rule of evidence.
It enables the Court to presume that the negotiable instruments or the
endorsement was made or endorsed for consideration and the burden of
proof of failure of consideration is thrown on the maker of the note or the
endorser as the case may be.
19. In Bharat Barrel and Drum Manufacturing Company vs.
Amin Chand Payrelal [1993 (3) SCC 35] the Apex Court has considered
the scope of both Section 118 of Negotiable Instruments Act and burden of
proof in paragraph No.12 it is observed as follows:
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“12. This Court in Kundan Lal Rallaaram v.
Custodian Evacuee Property, Bombay
MANU/SC/0422/1961 : AIR (1961) SC 1316 declared
the Section 118 of the Act lays down a prescribed
special rule of evidence applicable to negotiable
instruments. The presumption contemplated
thereunder is one of law which obliges the Court to
presume, inter alia, that the negotiable instruments or
the endorsement was made or endorsed for
consideration and the burden of proof of failure of
consideration is thrown on the maker of the note or the
endorser as the case may be. Relying upon the law laid
down in Rameshwar Singh v. Bajit Lal
MANU/MH/0029/1929 : (1929)31BOMLR721
approved by this Court in Hiralal v. Badkulal
MANU/SC/0004/1953 : [1953]4SCR758 , it was held:
This section lays down a special rule of evidence
applicable to negotiable instruments. The presumption
is one of law and thereunder a court shall presume,
inter alia that the negotiable instrument or the
endorsement was made or endorsed for consideration.
In effect it throws the burden of proof of failure of
consideration on the maker of the note or the endorser,
as the case may be. The question is, how the burden
can be discharged? The rules of evidence pertaining to
burden of proof are embodied in Chapter VII of the
Evidence Act. The phrase 'burden of proof has two
meanings - one the burden of proof as a matter of law
and pleading and the other the burden of establishing
a case, the former is fixed as a question of law on the
basis of the pleadings and is unchanged during the
entire trial, whereas the latter is not constant but shifts
as soon as a party adduces sufficient evidence to raise
a presumption in his favour. The evidence required to
shift the burden need not necessarily be direct
evidence, i.e., oral or documentary evidence or
admissions made by opposite party it may comprise
circumstantial evidence or presumptions of law or fact.
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To illustrate how this doctrine works in practice, we
may take a suit on a promissory note. Under Section
101 of the Evidence Act, "Whoever desires any court to
give judgment as to any legal right or liability
dependent on the existence of facts which he asserts,
must prove that those facts exist." Therefore, the
burden initially rests on the plaintiff who has to prove
that the promissory note was executed by the
defendant. As soon as the execution of the promissory
note is proved, the rule of presumption laid down in
Section 118 of the Negotiable instruments Act helps
him to shift the burden to the other side. The burden of
proof as a question of law rests, therefore, on the
plaintiff; but as soon as the execution is proved,
Section 118 of the Negotiable Instruments Act imposes
a duty on the Court to raise a presumption in his
favour that the said instrument was made for
consideration. This presumption shifts the burden of
proof in the second sense, that is the burden of
establishing a case shifts to the defendant. The
defendant may adduce direct evidence to prove that the
promissory note was not supported by consideration,
and, if he adduced acceptable evidence the burden
again shifts to the plaintiff, and so on. The defendant
may also rely upon circumstantial evidence and, if the
circumstances so relied upon are compelling , the
burden may likewise shift again to the plaintiff. He
may also rely upon presumptions of fact, for instance
those mentioned in Section 114 and other Sections of
the Evidence Act. Under Section 114 of the Evidence
Act "The Court may presume the existence of any fact
which it think 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." Illustration
(g) to that Section shows that the Court may presume
that evidence which could be and is not produced
would, if produced, be unfavourable to the person who
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withholds it. A plaintiff, who says that he had sold
certain goods to the defendant and that a promissory
note was executed as consideration for the goods and
that he is in possession of the relevant account books
to show that he was in possession of the goods sold
and that the sale was effected for a particular
consideration, should produce the said account books,
for he is in possession of the same and the defendant
certainly cannot be expected to produce his
documents. In those circumstances, if such a relevant
evidence is withheld by the plaintiff, S. 114 enables the
Court to draw a presumption to the effect that, if
produced, the said accounts would be unfavourable to
the plaintiff. This presumption, if raised by a court can
under certain circumstances rebut the presumption of
law raised under Section 118 of the Negotiable
Instruments Act. Briefly stated, the burden of proof
may be shifted by presumptions of law or fact, and
presumptions of law or presumptions of fact may be
rebutted not only by direct or circumstantial evidence
but also by presumptions of law or fact. We are not
concerned here with irrebuttable presumptions of
law.”
20. Further, the Apex Court, after considering the various previous
Judgments of the Apex Court and also the Judgments of various High
Courts as held in concluding paragraph as follows:
“Upon consideration of various Judgments as
noted hereinabove, the position of law which emerges
is that once execution of the promissory note is
admitted, the presumption under Section 118(a) 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
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the initial onus of proof showing that the existence of
consideration 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 upon
its failure to prove would dis-entitle him to the grant of
relief on the basis of the negotiable instrument. The
burden upon the defendant of proving the non-
existence of the consideration can be either direct or
by bringing on record the preponderance of
probabilities by reference to the circumstances upon
which he relies. In such an event the plaintiff is entitled
under law to rely upon all the evidence led in the case
including that of the plaintiff as well. In case, where
the defendant fails to discharge the initial onus of
proof by showing the non-existence of the
consideration, the plaintiff would invariably be held
entitled to the benefit of presumption arising under
Section 118(a) in his favour. The court may not insist
upon the defendant to disprove the existence of
consideration by leading direct evidence as existence
of negative evidence is neither possible nor
contemplated and even if led is to be seen with a
doubt. The bare denial of the passing 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 defendant has to bring on record such
facts and circumstances, upon consideration of which
the court may either believe that the consideration did
not exist or its non-existence was so probable that a
prudent man would, under the circumstances of the
case, shall act upon the plea that it did not exist. We
find ourselves in the close proximity of the view
expressed by the Full Benches of the Rajasthan High
Court and Andhra Pradesh High Court in this
regard.”
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21. The defendant has made a genuine attempt by calling upon
D.W.4-Raj to adduce evidence on his side and D.W.4 has deposed that he
was employed at Neyveli Lignite Corporation Ltd. It was suggested to him
that the defendant has borrowed a sum of Rs.45,000/- and executed unfilled
promissory note and lodging of criminal complaint against P.W.4 but he
denied all those facts. He had stated that he is one of the borrowers of the
loan from the plaintiff and since he was not able to repay the same, decree
has been passed against P.W.4. In the cross examination, he has also stated
that the defendant has never borrowed any money from P.W.4 and he had
not demanded any money from the defendant and he had not received any
unfilled promissory note from the defendant. Whereas, D.W.2 and D.W.3,
the independent witnesses have stated that the defendant has borrowed a
sum of Rs.40,000/-. D.W.1 had stated that he has not known about the
various loans received by the defendant. The plaintiff also filed a separate
money suit against D.W.2 before the Sub Court, Cuddalore. The defendant
has borrowed money from D.W.4 and the defendant has executed unfilled
promissory note in favour of D.W.4-Raj. The defendant has also not called
for any presentation of the account books or income tax returns of the
plaintiff. Having failed to do so, it cannot be contended that the plaintiff
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has failed to prove the passing of consideration by producing corroborative
materials such as account books, income tax returns, etc.
22. D.W.3 - Rajasekaran has also deposed to the effect that the
defendant has borrowed loan from D.W.4-Raj and executed an unfilled
promissory note. D.W.2 and D.W.3 have also stated that they have also
borrowed money from the plaintiff and there is a decree passed against
them. D.W.1 to D.W.4 all are working at Neyveli Lignite Corporation Ltd.
However, they have admitted that they do not know about the various loans
borrowed by the defendant from various persons.
23. A Combined reading of the defendant side witnesses only shows
that they have come up with the case that D.W.4-Raj acted like an agent for
the plaintiff and through him, D.W.1 to D.W.3 have borrowed loans and
promissory note executed by them and later it was misused by the plaintiff.
The fact remains that misusing of promissory note executed in favour of
Raj is to be proved by the defendant herein. Even though their evidences
only shows that they have received loan from Raj there is no evidence to
substantiate their oral evidence. They are not able to establish any collusion
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between P.W.4-Raj and the plaintiff. Whereas, the evidence of D.W4 shows
that the defendant himself has filed the Civil Suit against Raj for recovery
of money.
24. In the absence of any proof establishing the collusion between
the plaintiff and the said Raj, and in the absence of any repayment of loan
as stated by the defendant in his evidence and pleadings, the evidence
adduced on the side of the plaintiff's side, shall be placed on higher
pedestal since their evidence is supported by the promissory note-Ex.A1
and consequent legal notice issued which was not replied by the defendant.
The defendant had come forward to lodge a complaint only the year 2011
that too, after decree being passed against him.
25. A Learned Single Judge of this Court in Kuppayammal Vs.
A. Sitheswaran and Ors. in S.A. Nos. 281, 282, 283 and 284 of 1998,
dated 30.06.2011 was considered the meaning for the word 'Execution' and
applicability of Section 20 of the Negotiable Instruments Act, by importing
definition of the word 'Executed' and 'Execution' stated in the Indian Stamp
Act, 1899 as observed that once the signature or thumb impression are
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affixed in the promissory note, this Act is sufficient to fall within the
definition of execution of promissory note. It is observed in following
words in paragraph Nos.23 to 28 as follows:
“23. The word executed was not defined in the
Negotiable Instruments Act, but in the Indian Stamp
Act 1899, section 2(12) deals with executed and
execution and it is stated that executed and execution
used with reference to instruments, mean signed and
signature. Therefore, as per the Indian Stamp Act,
when a person signed an instrument, which is defined
under Section 2(14) it amounts to execution of the
instrument. Therefore, even assuming that the
defendants only put their signatures in blank
promissory notes, having regard to the provision of
section 2(12) and 2(14) of the Indian Stamp Act, it can
be held that they have admitted the execution of the
document. However, according to me, the
respondents/defendants failed to prove that they have
only signed their names in the blank promissory notes
and in the absence of discharging that initial burden
on their part, the plaintiffs are entitled to draw
presumption under section 118 of the Negotiable
Instruments Act that the promissory notes were
executed for consideration received and this was not
properly appreciated by the Lower Appellate Court.
24. Once execution is admitted, the plaintiff is
entitled to draw presumption under section 118 of the
Negotiable Instruments Act and it is for the defendants
to rebut the presumption. As stated supra, no evidence
worth the name was let in by the defendants to
disprove the presumption drawn in favour of the
plaintiffs under section 118 of the Negotiable
Instruments Act.
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25. As regards the contention of the learned
Senior Counsel Mr.S.V.Jayaraman, appearing for the
respondents that having regard to the case of the
defendants that they have only affixed their thumb
impression and put their signatures in blank
promissory notes, the plaintiffs are not entitled to the
benefits of section 20 of the Negotiable Instruments
Act, in my opinion, that argument cannot be accepted
in the light of the provisions of sections 7, 8 and 9 as
stated supra.
26. As per section 20 of the Negotiable
Instrument Act, where one person signs and delivers to
another a person a paper stamped in accordance with
the law relating to negotiable instruments then in
force, and either wholly blank or having written
thereon an incomplete negotiable instrument, he
thereby gives prima facie authority to the holder
thereof to make or complete, as the case may be upon
it a negotiable instrument, for any amount specified
therein and not exceeding the amount covered by the
stamp.
27. It is further stated that a person so signing
shall be liable upon such instrument, in the capacity in
which he signed the same, to any holder in due course
for such amount. It was also provided that no person
other than a holder in due course shall recover from
the person delivering the instrument anything in excess
of the amount intended by him to be paid thereunder.
Therefore, as per section 20 of the Negotiable
Instruments Act, authority was given to the holder of
the blank promissory note by the executant to complete
the same and the person signing such instrument is
liable to any holder in due curse for such amount.
According to me, this section can be considered only
when the defendants prove to the satisfaction of the
Court that they only gave blank promissory notes with
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their signatures and it was filled up by the plaintiffs
later.
28. .I have already held that the defendants have
not discharged that initial burden and they have only
stated that they have given blank promissory notes
with signatures and in the absence of any satisfactory
proof and that they only gave the blank promissory
notes with signature, having regard to the provision
2(12) and 2(14) of the Indian Stamp Act, even
assuming the defendants have given blank promissory
notes with signature, it will amount to execution.”
26. Section 118(a) of the Negotiable Instruments Act would come
into play, when the plaintiff is able to establish the proper execution of the
promissory note. In this case, the plaintiff has proved the execution but the
defendant was unable to probabilize his case that he has borrowed loan
only with Raj and it has been repaid. Except bare denial of passing of
consideration by examining his side evidences, the defendant was not able
to improves or probabilise his case of non-existence of consideration.
Having accepted the signature and thumb impression, he was not able to
probabilise his case for shifting the onus of proof to the plaintiff. The
evidence adduced on the side of the defendant has not been misread by the
Courts below and they have properly appreciated the evidence.
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27. Thereby, the substantial questions of law 1 to 4 are answered to
the effect that, if Section 20 of the Negotiable Instruments Act is attracted,
then, the burden of non-execution of the negotiable instrument lies on the
person, who denies the execution. Similarly, if the execution of the
promissory note, prima facie established by the plaintiff, by examining
witnesses, who speaks about the execution including passing of
consideration and subscribing signature by the executor, then, the burden
shifts on the defendant to prove the failure of consideration.
28. In this case, except the oral evidence of some of the witness
unconnected with the documents, no corroborative evidence for their oral
evidence produced to probabilise the case of the defendant more
importantly, non passing of consideration. This type of evidence is not
sufficient to discharge the burden to rebut the presumption provided under
Section 118(a) of the Negotiable Instruments Act. The non-production of
account books, income tax returns by the plaintiff is not necessary, in the
absence of prior notice to produce documents. As in this case, no notice is
served for production of account books and income tax returns, no adverse
inference could be drawn against the plaintiff.
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29. Therefore, I am of the view that both the Courts have not erred in
drawing a presumption under Section 118(a) of the Negotiable Instruments
Act against the defendant. Both the Courts have rightly held that the
execution of promissory note itself is sufficient to prove the passing of
consideration, hence rightly decreed the suit.
30. In the result, the Second Appeal is dismissed. The Judgment and
Decree dated 31.10.2012 passed in A.S. No. 62 of 2011 on the file of the
III Additional District and Sessions Court, Cuddalore at Virudhachalam
confirming the Judgment and Decree dated 29.08.2011 passed in O.S. No.
110 of 2010 on the file of the Sub Court, Neyveli are hereby confirmed. No
order as to costs. Consequently, the connected miscellaneous petition
stands closed.
18.10.2024
ssi
Index : Yes / No
Speaking Order :Yes/No
Neutral Citation Case : Yes/No
https://www.mhc.tn.gov.in/judis
To
1. The III Additional District and Sessions Judge,
Cuddalore at Virudhachalam.
2. The Sub Judge, Neyveli.
3. The Section Officer,
VR Section,
High Court of Madras
https://www.mhc.tn.gov.in/judis
K.RAJASEKAR,J.,
ssi
18.10.2024
https://www.mhc.tn.gov.in/judis
