Hari Swarup, J. - (1.) This is Defendant's second appeal arising out of a suit for recovery of a sum of Rs. 1372 on the basis of a promissory note dated 27 -6 -60. Both the courts have decreed the suit against the Defendant.
(2.) Learned Counsel for the Appellant has contended that the court below was in error in drawing a presumption Under Sec. 118 of the Negotiable Instruments Act (hereinafter called the Act) about the consideration for the promissory note. The promissory note stated that it was for cash consideration. In the plaint, however, the Plaintiff put forward the case that the cash was advanced on an earlier occasion and a promissory note was executed by the Defendant on 28 -6 -57, the amount of this promissory note was not paid up and hence the present promissory note was executed on 27 -6 - 60 and the consideration for the letter promissory note was the money due under the earlier promissory note.
(3.) Learned Counsel has contended that once the Plaintiff's case itself is against the plaint tenor of the promissory note, no presumption can arise Under Sec. 118 of the Act to the effect that the present negotiable instrument was made or drawn for consideration. Reliance has been placed on the cases Radhey Shyam v/s. Kedar Nath, AIR 1927 MB 82 and V. Reddy v/s. N. Reddy : AIR 1951 Mad 851 for the proposition that no presumption can arise. It was held in the case of V. Reddy v/s. N. Reddy (supra): When the Plaintiff does not want to rely upon the original recital of the promissory note but wants to set up a different form of consideration, he ought to prove a consideration and the burden is initially on him rather than on the Defendant who denies consideration. The same view was taken in the case of Radhey Shyam v/s. Kedar Nath (supra). Learned Counsel for the Appellant has, further placed reliance on the case of Fulchand v/s. Laxmi Narain : AIR 1952 Nag 308 in which it was observed: In a suit on a promissory note it is not necessary to aver consideration or to prove it. The Court places the burden upon the Defendant to prove want of consideration. But in a case where the Plaintiff does not rely upon the promissory note 'per se' but pleads certain facts in his plaint which militate against the presumption naturally arising from the document...the presumption is displaced by the act of the Plaintiff himself. No case has been cited by learned Counsel for the Respondent in which a contrary view might have been taken.;