The defendant in O.S.No.365 of 2004 is the appellant before this court. The suit in O.S.365/04 was filed by the Plaintiff, N.Subbiah Pillai, for recovering a sum of Rs.3,43,466.66 with subsequent interest. The case of the plaintiff is that the plaintiff was employed in Rameswaram Temple. He was having a sum of Rs.2,00,000/- as his savings on the verge of his retirement from service and he was contemplating to purchase a house for residence at Rameshwaram. At that point of time, he came into contact with the defendant who belongs to the same place. On the basis of the advice given by the defendant that Rs.2,00,000/- could be lent to him by way of loan and that the said loan would carry interest at 4% per month and thereby he would be getting more money on the savings . He further suggested that the Plaintiff could also be inducted as a member in the chit group conducted by him to the total value of Rs.2,00,000/- and out of the interest amount, the plaintiff could pay the instalments. Lured by the words of the defendant, the plaintiff acceeded to the suggestion. The defendant in turn had executed two promissory notes dated 12.07.1998 for a sum of Rs.1,00,000/- (One Lakhs only) each with 4% interest, after receiving a sum of Rs.2,00,000/- from the plaintiff.
2. Since the defendant did not make any payment and was giving evasive reply , the plaintiff filed the suit for the recovery of the amounts due under the said promissory notes.
3. In the written statement filed by the defendant , the defendant denies all the allegations levelled against him. He also denied the execution of two promissory notes and thus he prayed for the dismissal of the suit.
4.On the basis of the above pleadings, the trial court framed the following issues:-
"1) Whether the Plaintiff is entitled to recover the money with interest?
2) Whether the defendant received the loan amount or not?
3) Whether the execution of promissory notes is true?
4) What are all the other reliefs the plaintiff is entitiled to?"
5.The plaintiff examined himself as P.W.1 and besides examining two other witnesses as P.W.2 and P.W.3 Both the promissory notes were marked as Ex.A1 and Ex.A2. The defendant also examined himself as P.W.1 and marked Ex.B1 to B8 on his side. The Trial Court found that the plaintiff has established his case that he had money in his possession and promissory notes were executed by the defendant. Hence the trial Court held that the plaintiff was entitled to get the decree as prayed for.
6. Aggrieved by the same, the defendant filed A.S.No.63 of 2006. The lower appellate court after re-evaluating the evidence adduced by the both sides, found that the plaintiff has clearly established his case before the trial court that the defendant had executed two pronotes and the trial Court has correctly admitted the suit. At the same time, the Appellate Court found that interest granted at 24% from the date of judgments is without any basis and accordingly reduced to 6% per annum. Pending appeal, the plaintiff passed away and the respondents herein were brought on record as his legal representatives before the lower appellate Court.
7. As against the concurrent judgments of both the courts below, the defendant/appellant has filed the second appeal and raised the following substantial questions of law.
"1. Whether presumption Sec.118 of Negotiable Instrument Act would get attracted to the facts of this case even though material evidences that are available in the case are against the raising of said presumption in the case?
2. When the evidence of P.W.1 read along with the evidence of other PW's themselves are totally against the case of the plaintiff regarding the borrowal of the loan amount by the defendant, is it correct on the part of the lower courts to brush aside the said evidences by simply adopting the presumption under section 118 on Negotiable Instruments Act?
3. When the evidences adduced by the plaintiff, both oral and documentary themselves, are against the case of the plaintiff, is it correct on the part of the courts below to place the burden of proving his case on the defendants and thereby relieving the onus of the plaintiff?
4. Can it be stated that the requirement of the application of section 114 of Evidence Act drawing adverse interence for the non-production of required evidence by the plaintiff is unnecessary for the reason of raising of presumption under section 118 of Negotiable Instruments Act by the Courts below? ."
8. On 28.10.2008, this court ordered Notice to the respondents and they entered appearance through their counsel. The learned counsel for the appellant/defendant submitted that both the courts below have wrongely shifted the onus on the defendant when the defendant clearly established under what circumstances he had put his signatures in the two blank promissory notes which were made use of the plaintiff for filing the suit. According to the learned counsel for the Appellant, the presumption under Section 118 of the Negotiable Instruments Act is a rebuttable presumption and the same was rebutted in this case. But both the courts below without adverting to this aspect, wrongly decreed the suit.
9.Per contra, the learned counsel for the respondents would submit that both the courts found that Ex.A1 and Ex.A2 have been executed on 12.07.2008 by the defendant and the signatures in the said pronotes were admitted by the defendant himself. In such circumstances, he contends that this court cannot interfere with the factual findings of both the courts below. The learned counsel for the respondents urged that when the signatures of the defendant were admitted and the defendant failed to prove that he put his signatures in a blank document as a security to his friend,both the courts correctly raised the presumption in favour of the execution of the document and rightly decreed the suit. In support of his submissions, the learned counsel for the respondents relied on the judgements of this court reported in 2002 (4) law weekly 360 (Ramasami Moopar Vs.Ramaswami Moopanar, Karuppa Moopanar and 2008(3) CTC 470(Ganapathy Thevar Vs. Shanmuga Thevar).
10. I have considered the rival submissions carefully with regard to facts and citations.
11. The case of the plaintiff in O.S.No90/01 is that, the defendant executed two separate Demand Promissory Notes on 12.07.1998 for a sum of Rs.1,00,000/-(Rupees One lakh only) each. As the defendant did not come forward to pay the amount with interest, the plaintiff filed the suit for recovery of the amount covered under the two promissory notes.
12. The case of the defendant is that, his friend Thiru S. Baluchamy approached him for a loan of Rs.1,00,000/- on 01.09.1997. As he had no money to lend such huge amount, the defendant informed his friend that, his friend Thiru.G. Sagadevan's brother Thiru. G. Natarajan is doing finance business and therefore, it could be possible to borrow that amount from Thiru. G. Sagadevan. When approached, Thiru Sagadevan informed that he intimated all the details to his brother Thiru. G. Natarajan and his brother Thiru.Natarajan asked him to meet him in person at Sivagangai on 07.09.1997 along with the defendant in the suit and his friend Thiru S. Baluchamy. Accordingly, the defendant, his friend Thiru.Baluchamy and Thiru Sagadevan called on Thiru. G. Natarajan and after receiving the signatures of the said Baluchamy in four blank promissory Notes, two blank conquer paper and two blank stamp papers, the said Thiru.Natarajan gave a sum of Rs.1,00,000/- to the defendant's friend Thiru.Baluchamy. To secure the due payment from his friend, the defendant was also asked to sign the four blank promissory notes and accordingly, the defendant put his signature on all the four blank promissory notes. Thus, according to the defendant, the amount was received from Thiru. G. Natarajan by his friend Thiru.Baluchamy and by way of security, he signed four balnk promissory notes. Using the blank promissory notes signed by the defendant, the father-in-law of Thiru.G.Natarajan filed the above suit and therefore, according to the defendant, he has not executed any promissory note in favour of the plaintiff and he only signed on the blank promissory notes for securing the due repayment only.
13.But, the Trial Court found that no acceptable evidence was let in by the defendant to prove his case and in such circumstances, the trial Court came to the conclusion that the presumption that arose in favour of the plaintiff was not rebutted by the defendant and accordingly decreed the suit.
14. The lower appellate court after re-evaluating the evidence, found that the defendant was not able to establish the circumstances under which the blank promissory note was signed by him and therefore,held that the presumption in favour of the valid execution of the promissory note was not rebutted by the defendant.
15. In such circumstances, the dispute involved in the case on hand is that, whether the defendant was able to prove the circumstances under which he signed the blank promissory note. Both the courts below after evaluating the evidence came to the conclusion that the defendant failed to establish his case and thereby, failed to rebut the presumption in favour of the valid execution of the promissory note.
16.This court, while hearing this appeal under section 100 CPC cannot go into the facts to find out whether the defendant proved or disproved his case of signing the blank promissory note. The lower appellate court is the final court of facts and this court has no jurisdiction under Section 100 CPC to go into a pure question of fact. Therefore, I do not find any substantial question of law that arises for consideration in this second appeal and accordingly, I do not find any merits in the appeal.
17. Eventhough a number of substantial questions of law were raised on behalf of the appellant in the memorandum of appeal, I am of the considered view that they are not really substantial questions of law and in fact, they are more or less like the grounds that could be raised in the first appeal.
18. In 2002 (4) LW 360, cited supra, a Division Bench of this court held as under:
Para: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 Instrument 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."
19. In 2008(3) CTC 470, cited supra , this court held as under.
Para:12 "The judgments of both the courts below, to say the least, are far from satisfactory. Here, is the case wherein the defendant would candidly admit the receipt of a sum of Rs.3,600/-(Three Thousand Six Hundred Only) from the plaintiff and also his signature in the suit Promissory Note format, in addition to having admitted that he had filled up the amount column in his hand writing, In such a case, I am of the considered opinion that Section 20 as well as Section 118 of the Negotiable Instruments Act, would come into operation. This is not a case where the plaintiff obtained signature of the defendant in a blank stamped paper. The suit promissory note is in the printed format. As such, admittedly, the defendant himself filled up the amount column at the top of the suit Promissory Note and signed beneath the already printed versions therein and that itself would amount to Promissory Note. Top it all, a Promissory Note need not be in a particular form only, what are all required under the Negotiable Instruments Act, is found set out under
Sections 20 and 118 of the Negotiable Instruments Act."
Para:18 "The learned counsel for the plaintiff also correctly argued that the said dairy is a self-serving document. At least, an ante litum motum document should have been summoned by the Trial Court at the instance of the defendant, from some authority who might be in possession of any record or document of the defendant containing his handwriting. But, in this case, no such steps have been taken. As such, viewing the matter in any angle, it is crystal clear that the judgments of both the courts below cannot be sustained.
Section 20 of the Negotiable Instruments Act, would clearly demonstrate that once, the promisor signs the promissory note format, it becomes inchoate document and thereupon, the promisee may fill it up and file a Suit. Section 118 of the Act would also come into operation in this case as the defendant clearly admitted that he received a sum of Rs.3,600/- (Rupees Three thousand and Six Hundred Only) and in consideration of it, he specified the amount at the top of Ex.A.1 and signed beneath the printed version."
20. From the above, it is very clear that once the signature in a promissory note is admitted, the presumption under sec.118 of the Negotiable Instrument Act is that, not only it has been validly executed, but, also, that it has been executed for consideration. Of course, this is a rebuttable presumption and once it has not been rebutted by letting in legally acceptable evidence, the presumption will stay and the suit is to be decreed. As already referred to by me, both the courts have concurrently held that the defendant failed to establish his case and therefore, I do not find any question of law much less substantial questions of law that arise for consideration in this Second appeal.
21. In the result, the second appeal is dismissed confirming the judgement and decree of the Lower Appellate Court. Connected MP.No.1/08 for stay is also dismissed. No costs.
arr To
1.The Principal District Judge, Madurai
2. The Sub-ordinate Judge, Madurai.