The first defendant in O.S.No.112 of 2003, on the file of the learned Subordinate Judge, Gudiyatham, is the appellant herein. Before the said Court, the first respondent herein filed the above referred suit, as against the appellant and the second respondent, seeking the relief of direction, directing to the defendants to pay the suit amount of Rs.1,20,500/- with future interest at the rate of 24% per annum and for costs.
2. By judgment and decree dated 28.12.2006, the learned Subordinate Judge, Gudiyatham, had dismissed the suit with entirety.
3. Aggrieved over the said findings, the plaintiff preferred an appeal, in A.S. No.52 of 2007 on the file of the learned Principal District Judge, Vellore. By judgment and decree dated 10.06.2009, the learned Principal District Judge, Vellore, had allowed the appeal filed by the plaintiff and granted the decree, as prayed for in O.S.No.112 of 2003. Feeling aggrieved over the judgment and decree dated 10.06.2009, the first defendant in the suit, preferred this Second Appeal.
https://www.mhc.tn.gov.in/judis 2/15 S.A. No.120 of 2010 and M.P. No.1 of 2010
4. For the sake of convenience, hereinafter, the parties, are referred to, as per their litigative status before the trial Court.
5. The laconic averments made in the plaint, are as follows:
(i) On 10.01.2001, the defendants jointly borrowed a loan of Rs.75,000/- from the plaintiff for the marriage expenses of the first defendant's daughter and his family expenses, agreed to repay the same on demand with interest at the rate of 24% per annum and jointly executed a promissory note on the same day. Inspite of repeated demands, the defendants have not paid any amount and hence, legal notice dated 12.05.2003 was sent to the defendants. The second defendant received the notice whereas the first defendant neither received the notice nor notice was returned to the plaintiff. The second notice dated 08.07.2003 was received by the first defendant and no reply was given by both the defendants.
(ii) The defendants are earning a sum of Rs.1,50,000/- per annum and having immovable properties worth more than https://www.mhc.tn.gov.in/judis 3/15 S.A. No.120 of 2010 and M.P. No.1 of 2010 Rs.10,00,000/-. Hence, they are not entitled the benefit under the Debt Relief Acts. The defendants are bound to pay the suit amount.
6. The case of the first defendant, is as follows:
(i) The suit is not maintainable either in law or on facts of the case. It is denied that on 10.01.2001, this defendant along with the second defendant jointly borrowed a sum of Rs.75,000/- from the plaintiff for the marriage expenses of this defendant's daughter and executed a promissory note on the same day and agreed to repay the said amount at the rate of 24% per annum. This defendant never borrowed any amount along with second defendant C.R.Ravichandran.
(ii) Along with the second defendant, one Ravichandran, who is the close relative of the plaintiff, in order to play fraud over this defendant fabricated the pronote. The second defendant never joined with this defendant in any transaction. This defendant was one of the subscriber in an unauthorised chit conducted by the plaintiff. While giving the chit amount, the plaintiff used to get signatures of the successful bidder in unfilled pronotes. Likewise, this defendant in the year of 1992 was the successful bidder in a chit conducted by the https://www.mhc.tn.gov.in/judis 4/15 S.A. No.120 of 2010 and M.P. No.1 of 2010 plaintiff and for that, the plaintiff has obtained the signature of this defendant in some blank pronotes.
(iii) After paying the entire chit amount, this defendant many times requested the plaintiff to return back the pronote signed by him. Apart from that, this defendant stood as a guarantor for the loan obtained by one G.D.Rajendiran of Melpatti from the plaintiff. G.D.Rajendiran failed to repay the debt. Hence, the plaintiff has filed suits against this defendant in O.S.Nos.226 of 1999 and 270 of 1999. In view of the above said circumstances, the plaintiff fabricated the pronote and filed the present suit.
7. Based on the above said pleadings, the learned Subordinate Judge, Gudiyatham, framed necessary issues and tried the suit. On the side of the plaintiff, plaintiff himself examined as P.W.1. He examined two witnesses as P.W.2 and P.W.3 and marked 5 documents, as Ex.A.1 to Ex.A.5. On the side of the defendants, first defendant Subramani was examined as D.W.1. On his side, he examined one Gopinath, as D.W.2 and marked 4 documents, as Ex.B.1 to Ex.B.4. https://www.mhc.tn.gov.in/judis 5/15 S.A. No.120 of 2010 and M.P. No.1 of 2010
8. Having considered the materials placed before him, the learned Subordinate Judge, Gudiyatham, vide judgment and decree dated 28.12.2006, dismissed the suit filed by the plaintiff. Aggrieved over the same, the plaintiff preferred an appeal in A.S.No.52 of 2007. By judgment and decree dated 10.06.2009, the learned Principal District Judge, Vellore, after setting aside the findings arrived at by the trial Court, allowed the appeal and granted decree in O.S.No.112 of 2003 of the trial Court.
9. Feeling aggrieved over the said findings of the Court below, the first defendant, is before this Court with the present Second Appeal. The Second Appeal was admitted on file after formulating the following substantial questions of law;
“1. Whether the first Appellate Court has rightly applied the provisions relating to the presumptions as to Negotiable Instruments contained in Section 118 of the Negotiable Instruments Act to the facts of this case ?
2. Whether the first Appellate Court has appreciated the law laid down by this Honourable Court reported in (2005) 1 M.L.J.14 ?” https://www.mhc.tn.gov.in/judis 6/15 S.A. No.120 of 2010 and M.P. No.1 of 2010
10. It is the consistent case of the first respondent / plaintiff that, on 10.01.2001, the defendants jointly borrowed a sum of Rs.75,000/- for the marriage expenses of the daughter of the first defendant and after borrowing the said Rs.75,000/-, they executed the suit promissory note. Before the trial Court, the suit promissory note was marked as Ex.A.1.
11. In respect to the execution, it is the case of the first defendant that, while at the time, he was participated in the chit run by the plaintiff, he put his signature in a blank promissory note and by using the same, the plaintiff fabricated the suit pronote and filed the present suit. Accordingly, the first defendant alternatively admitted the fact that, the signature found in the suit pronote belongs to him. In the said circumstances, in order to prove the execution of suit pronote, on the side of the plaintiff, scribe of the pronote was examined as P.W.2 and the attestor, who signed in the pronote was examined as P.W.3. In respect to execution, the evidence given by them, is sufficient to hold that the suit pronote was executed on 10.01.2001, as narrated by the plaintiff. https://www.mhc.tn.gov.in/judis 7/15 S.A. No.120 of 2010 and M.P. No.1 of 2010
12. In this occasion, the learned counsel appearing for the appellant after relying on the judgment in AYYAKANNU GOUNDER vs. VIRUDHAMBAL AMMAL reported in (2005) 1 M.L.J. 14 would submit that, the evidence given by P.W.2 and P.W.3 are not in respect to the payment of consideration and therefore, under Section 118 of the Negotiable Instruments Act, we cannot presume that the suit pronote was executed upon due consideration. It is the further case of the appellant / first defendant that the endorsement made in the pronote is that, the loan was obtained on 10.01.2001 for the marriage expenses of D.W.1's daughter. In this connection, the wedding invitations pertain to his family members were exhibited as Ex.B.3 and Ex.B.4 and the same discloses that, the marriages had happened in the year of 1995 and 1999. Therefore, for the marriage expenses, it is not necessary for the first defendant to avail the loan in the year 2001. Hence, the same is sufficient to accept the case of the appellant that the first defendant would rebut the presumption raised under Section 118 of the Negotiable Instruments Act. https://www.mhc.tn.gov.in/judis 8/15 S.A. No.120 of 2010 and M.P. No.1 of 2010
13. Now, on considering the said submissions with the relevant records, it is true that the marriage invitations pertain to the first defendant's family were marked before the trial Court as Ex.B.3 and Ex.B.4. In view of the said documents, the first defendant has proved the fact that the marriages in his family was celebrated in the year 1995 and 1999. On the other hand, P.W.3 Kumaravel, who is the witness signed in the suit pronote gave evidence in his cross examination as after executing the suit pronote, after 4 or 5 months from the date of execution, the first defendant invited him for her daughter's marriage. Therefore, the said evidence given by P.W.3 is sufficient, to accept that the first defendant herein approached this Court with false story.
14. In the said occasion, further it is necessary to see the averments found in the pronote wherein it was stated that, apart from the marriage expenses, for his family expenses also, the first defendant needs Rs.75,000/-. Accordingly, the same shows for discharging the other liability arised during the time of marriage etc. the first defendant availed the loan from the plaintiff. Therefore, mere filing of the wedding invitations are not sufficient to rebut the presumption raised under Section 118 of the Negotiable Instruments Act. In fact, in the judgment https://www.mhc.tn.gov.in/judis 9/15 S.A. No.120 of 2010 and M.P. No.1 of 2010 relied on by the learned counsel for the appellant (2005) 1 M.L.J. 14 it was decided that, the plaintiff cannot pick holes in the defendant's case to establish his case.
15. More than that, on going through the factual aspects of the above referred case, after receipt of the presuit notice, the borrower sent a reply notice wherein he had stated his case. But herein, it is a case, after receipt of the presuit notice, without any reason, the appellant / first defendant did not give any reply by denying the claim made by the plaintiff. Therefore, the factual aspects narrated in the judgment relied on by the learned counsel for the appellant, is no way helpful for deciding the issue in his favour.
16. It is the further case of the appellant that before availing the alleged loan, for the reason that, the first defendant stands as a guarantor to the third party, the plaintiff filed 2 suits in O.S.Nos.226 of 1999 and 270 of 1999 as against the present defendant. It is a further case that, after knowing the fact that the first defendant being the defaulter, giving another loan by the same plaintiff to the first defendant, is an unbelievable story.
https://www.mhc.tn.gov.in/judis 10/15 S.A. No.120 of 2010 and M.P. No.1 of 2010
17. On considering the said submission with the relevant records, it is true, in order to substantiate the said submission, the first defendant while at the time of giving evidence as D.W.1 exhibited the copy of the written statements filed in O.S.Nos.226 of 1999 and 270 of 1999 as Ex.B.1 and Ex.B.2. The said written statements has been filed in a suit, which filed in the year 1999. On the other hand, the present suit has been filed for the loan availed in the year 2001. However, on going through the other circumstances, here is a case both the first defendant and the plaintiff are the relatives, giving another loan for urgent needs is a common one and therefore, the stand taken by the first defendant is not sufficient one to disbelieve the plaintiff's case.
18. Though it was stated by the first defendant that, he repeatedly demanded the plaintiff to return back the blank pronote, in order to substantiate the same, no document has been exhibited on the side of the first defendant. In this regard, the first Appellate Court has clearly held that, if the said story putforth by the first defendant, is found correct definitely he would have preferred a complaint against the plaintiff or issued a lawyer notice. Utmost, he could sent a reply notice to https://www.mhc.tn.gov.in/judis 11/15 S.A. No.120 of 2010 and M.P. No.1 of 2010 the lawyer notice issued for the suit pronote. So, without any substantial documents, the oral evidence given by the first defendant, cannot be relied upon.
19. Since the appellant / first defendant has himself admitted the execution of the promissory note, the evidence of attestors need not be gone into. The only defence available to the appellant / first defendant is that, there is no passing of consideration. Though P.W.2 and P.W.3 had not stated about the passing of consideration, being the reason that the signature found in the pronote was admitted by the first defendant, under Section 118 of the Negotiable Instruments Act, it should be presumed that the said pronote has been executed on proper consideration.
20. In the said situation, it is for the first defendant to rebut the said presumption as the suit pronote has not been executed on due consideration. Here, it is a case, as already observed that, the presumption is one of law and thereunder, the Court shall presume that the promissory note was made only for a valid consideration. As the burden of proof on the first respondent / plaintiff is discharged even by https://www.mhc.tn.gov.in/judis 12/15 S.A. No.120 of 2010 and M.P. No.1 of 2010 the admission made by the appellant / first defendant, the burden automatically shifted on the appellant / first defendant, who is duty bound to adduce sufficient evidence, both oral and documentary, to rebut the presumption that consideration has not been passed. In the instant case, excepting the interested testimony of D.W.2, the first defendant has not produced any evidence to discharge the onus on him. The defence taken by the appellant / first defendant is not substantiated by producing the relevant documents.
21. The presumption under Section 118 of the Negotiable Instruments Act, 1881, is a statutory one and unless it is rebutted, it has to be presumed that consideration had passed. Merely because for the reason that, the scribe of the witness attested in the pronote, did not state about the consideration. This Court, is not in a position to accept the contentions raised by the appellant / first defendant. Thus, the questions of law are answered in the negative against the appellant / first defendant.
22. In the result, the Second Appeal is dismissed and the judgment and decree of the lower Appellate Court dated 10.06.2009 passed in A.S.No.52 of 2007 on the file of the learned Principal District https://www.mhc.tn.gov.in/judis 13/15 S.A. No.120 of 2010 and M.P. No.1 of 2010 Judge, Vellore, Vellore District, is hereby confirmed. Consequently, connected Miscellaneous Petition is closed. However, there is no order as to costs.