A.K. Padhi, J. - (1.) PLAINTIFF is the Appellant. The suit is for recovery of money with pendente lite and future interest based on a pronote. In the plaint it was alleged by Plaintiff that he was a registered money lender and had obtained a licence for money lending business on 20 -1 -1968.. Defendants had borrowed a sum of Rs. 11,000/ - from the Plaintiff on 21 -1 -1968 by executing the promissory note (Ext. 1) with interest at the rate of 12% per annum. As on repeated notice the Defendants did not repay the loan the suit was filed for recovery of money basing on the pronote.
(2.) DEFENDANTS filed their joint written statement and contested the suit. Defendants pleaded that Gunanidhi had obtained a loan of Rs. 1,000/ - from the grand father of Plaintiff four months before his death. Defendants are the widow and sons of said Gunanidhi. The said loan was taken in the year 1966 by pledging gold ornaments weighing about 17 tolas. Defendants executed the disputed promissory note without any consideration as the Plaintiff wanted collateral security and promised to return the gold ornament if such a security is executed by the Defendants. The Defendants further pleaded that neither they had received any consideration under the promissory note nor the gold ornaments which were pledged by their late father with the grand father of the Plaintiff have been returned to them.. In short the Defendants pleaded no consideration passed under the promissory note. Learned trial Court after assessing the evidence on record has given the findings that though presumption under Section 118(b) of the Negotiable Instruments Act (hereinafter referred to as (the 'Act') arises in favour of the Plaintiff, the same has been rebutted as the Plaintiff has not examined himself nor has examined the scribe. Plaintiff has failed to prove passing of consideration. This finding has been arrived at relying on, 1961 S.C.D. 624,, A.I.R. 1961 S.C. 1316, Kundan Lal Rallaram, v. Custodian, Evacuee Property, Bombay.
(3.) LEARNED advocate for the Appellant submits that the learned Trial Court has not understood the import of the presumption arising under Section 118 of the Act. The onus was on the Defendants to prove that no consideration was passed under the Act as the Defendants have admitted the execution of the promissory note. Non -examination of the Plaintiff or the scribe is not fatal to the suit.;