- (1.) THE appellant is the defendant in O.S.No.206 of 1985 on the file of the Subordinate Judge's Court, Sankari. THE respondent herein is the plaintiff in the said suit for recovery of Rs.65,900.
(2.) THE plaint averments are that on 26.11.1981, the defendant borrowed a sum of Rs.50,000 as loan from the plaintiff for his family expenses, and executed a promissory note promising to pay the said sum with interest at 18% p.a. either to the plaintiff or to his order on demand. It is stated that the defendant has not paid any amount either towards the principal amount or towards the interest in spite of demands, and even after issue of notice and hence the suit was filed for recovery of the suit promissory note debit. The case of the defendant is that it is not correct to state that the defendant had borrowed Rs.50,000 from the plaintiff on 26.11.1981 and according to him, on 13.10.1980, he borrowed a sum of Rs.25,000 only from the plaintiff and left with him a signed blank promissory note, without filling up the date and consideration. According to the defendant, the plaintiff had fabricated the suit promissory note and hence it is a forged document. The defendant has also stated that he has made certain payments on several dates, but the plaintiff has not given credit to the said payments. The trial Court on the basis of the pleadings framed an issue as to whether the plaintiff is entitled to the suit amount. The trial Court, on the basis of the oral and documentary evidence, held that the execution of the suit promissory note by the defendant was proved and that the defendant has not paid either the principal or the interest towards the promissory note debt and accordingly decreed the suit as prayed for. As against the said judgment and decree of the trial Court, the defendant has preferred the present appeal. Learned counsel for the appellant submitted that the appellant has signed only the blank promissory note and that the amount mentioned in the promissory note is disputed. According to the learned counsel for the appellant, the defendant has borrowed only a sum of Rs.25,000 and the respondent/ plaintiff has not produced the account books though he is stated to be carrying on money lending business. Learned counsel for the appellant submitted that the plaintiff has neither examined the scribe, nor the attestors to the promissory note. I am unable to accept the submission if the learned counsel for the appellant. It is relevant to notice here that the appellant has not denied his signature in the promissory note and there is no dispute about the execution of the promissory note. Moreover, the appellant was examined as D.W.1 on 6.2.1986 and through him only, the promissory note (Ex.A-1) was marked. The plaintiff was examined only subsequently on 7.2.1986. When the defendant was examined, he identified the promissory note and he has also admitted his signature found in Ex.A-1. Further, it is not very clear why the trial Court has examined the defendant as the first witness in the trial of the suit, even before the commencement of examination of the plaintiff as there are no reasons recorded in the judgment for adopting such a course. However, the fact remains the defendant was examined as a first witness in the trial of suit. It is not also clear why the trial Court has not forwarded B.Diary which would contain the reason why the defendant was examined as the first witness in the trial of suit. The evidence on record clearly shows that the defendant has admitted the signature found in Ex.A-1, promissory note. Since the defendant has admitted the signature in Ex.A-1, there is no necessity for the plaintiff to prove the signature of the defendant by examining either the scribe or the attestors to the said document.
(3.) LEARNED counsel for the appellant relied on the judgment of this Court reported in Duraisami Chettiar Sons v. Rathnaswami Gounder (1991)2 MLJ. 183. This Court in the above case held that the plaintiff in that case was a professional money lender and has deliberately suppressed his account books and the rebuttal under Sec.118 of the Negotiable Instruments Act need not necessarily be by direct evidence. I am of the view that the said decision has no application. In that case, the defendant has called upon the plaintiff to produce the account books to prove the payment and the plaintiff has stated in the box that he will produce the account books within four hours to prove the fact of payment, but he never produced the account books inspite of adjournments and notice. The plaintiff then deposed that the account books were with the auditor and when he made efforts to get the said account books from the auditor, the auditor said that he would look up and give them to the plaintiff. Since the plaintiff has purposely suppressed the account books, the non. production of the account books would disprove his case. The trial Court in that case held that the non-production of the account books by the plaintiff would show that no money was advanced by the plaintiff to the defendant. It is in the circumstances of the case, this Court held that since there was a deliberate suppression in a production of account books, the defendant has discharged the burden under Sec.118 of the Negotiable Instruments Act. This Court also held that the rebuttal of presumption under Sec.118 of the Negotiable Instruments Act by the defendant need not always be direct evidence that will be adduced by the defendant, and the Court on the basis of the evidence as a whole can draw an adverse inference against a party who was in possession of account books who is expected to adduce better evidence, but deliberately abstained from doing so. I hold that the said decision is not applicable to the facts of the case. On the other hand, the decision of this Court in S.Perumal Chettiar v. T.Santhanam S.Perumal Chettiar v. T.Santhanam S.Perumal Chettiar v. T.Santhanam 92 L.W. 225 would apply to the facts of the present case. V.Ratnam, J. (as His Lordship then was) held that though the question whether a statutory presumption is rebutted by the rest of the evidence is a question of fact, the presumption is not left to the discretion of the Court, and in every suit on a negotiable instrument, the Court shall presume that such instruments were made, drawn, accepted or negotiated for consideration, so much so, it has been held that where the lower Court ignored the presumption and found that the document was not supported by consideration, the decision regarding considerations was vitiated. The learned Judge has held that when the execution of the promissory note was admitted, a presumption was raised in favour of the plaintiff that the said instrument was made for consideration, and when this presumption was raised, it had the effect of shifting the burden on the defendant to establish that there was no consideration. Learned Judge further held that the defendant has not satisfied the Court that there was no consideration whatever with reference to the promissory note sued on, because it was his admission in the written statement that the promissory note represented the interest due on the mortgages admittedly executed by him and the mere fact that the mortgage deeds were not produced before the Court would not make any difference nor would it detract from the effect of the admission made by the defendant in his written statement. I hold that the above decision will squarely apply to the facts of the case and the burden was shifted to the defendant and he has not discharged the burden in view of the admission made by him that the suit promissory note was executed by him for consideration and it is for him to prove that the consideration stated therein is not true, which he miserably failed to do so. The same view has been reiterated in Meenakshisundaram v. Rangasami (1996)1 MLJ. 297. In that case, the plaintiff has no inconsistent case regarding the passing of consideration and the case of the defendant was that the document was not supported by consideration and it was not his case that the quantum mentioned is incorrect. The learned Judge therefore held that the case of the plaintiff cannot be disbelieved under Sec.118 of the Negotiable Instruments Act and his case cannot be found as disproved. Applying the said decision to the facts of the case, it is not the case of the plaintiff herein that the consideration stated in the promissory note is different from the real fact and the case of the defendant is that the consideration stated in the promissory note is incorrect and then it is for him to discharge the burden. In Rajamani v. Seeralan (1999)2 MLJ. 13 the learned Judge has held that where the defendant contents that the promissory note was executed for payment of interest on mortgage and that twice the amount due was executed, the burden of proof would shift to the defendant and it was not discharged on account of this admission. The learned Judge further held that the burden was not discharged by the defendant and the plaintiff would be entitled to decree as prayed for. ;