Judgment:
ORDER
1. This appeal suit is directed against the judgment and decree dated 3.7.1987 made in O.S.No.130 of 1985 by the court of subordinate Judge, Dindigul thereby decreeing the suit, as prayed for, which had been filed by he respondent praying to pass a decree for a sum of Rs.31,706.25 with interest and costs.
2. To trace the history of the case, the respondent herein-filed the suit on averments that the defendant borrowing a sum of Rs.25,000 from the plaintiff on 29.7.1982 for his business, executed the suit pronote at Palani agreeing to repay the same with interest at 18% p.a. and since the defendant did not repay the said sum in spite of repeated demands, the plaintiff issued a notice dated 27.5.1985, for which the defendant issued a reply dated 4.7.1985 with false and untenable allegations, admitting the execution of the pronote but denying the circumstances under which it had been executed and further denying the passing of the consideration under the pronote and hence the plaintiff has come forward to file the suit for recovery of the sum of Rs.31,706.25 ps. with interest and costs.
3. On the part of the defendant, he would file a written statement generally denying all the allegations of the plaint much less the passing of the consideration of Rs.25,000 under the suit pronote. The defendant would further submit that there was no necessity for him to get such a loan nor had there been any compelling reason for him to borrow the said amount. The defendant would submit the circumstances under which the suit pronote had been executed on his part stating that his wife one Soundaravalli Ammal purchased a house property bearing door No.16, Kamalathoppu Street in North Veli Street at Madurai,, which was belonging to an insane person viz. S.R.Venkataraman that the guardian of the said S.R.Venkataraman was none other than the wife of the plaintiff; that both the intended seller and the purchaser applied for necessary permission from the Court prior to the sale, which was vehemently opposed by some other claimants of the said property in the Court and ultimately the said objections having been overruled by the Court, the sale of the property was permitted to be done in favour of the wife of this defendant by the wife of the plaintiff acting as the guardian of the said insane person S.R. Venkataraman and ultimately the sale deed was also executed and registered that aggrieved, the defeated claimants to the said property filed an appeal before the High Court of Madras and since such appeal had to be jointly met with by both the wives of the plaintiff and the defendant, the wife of the plaintiff having taken charge of the expenses on the part of the defendant's wife, the defendant had to execute the pronote in favour of the plaintiff and as such there was no consideration passed on. The defendant would further submit that as it had been agreed among themselves, all the proceedings were conducted by the plaintiff's wife for herself and onbehalf of the wife of the appellant; that they have also obtained an amount of Rs. 12,200 for the expenses of prosecuting the appeal and on many other occasions also amounts have been paid; that apart from that, the defendant had also paid an amount of Rs. 15,000 to meet the expenses of the appeal in the High Court; that taking advantage of the close contacts, the plaintiff promising to return the pronote later, only sent the notice on 27.5.1985 claiming the pronote amount as though the same had been executed at Palani by the defendant. Hence, the case of the defendant, as pleaded, is that the suit pronote was not supported by consideration nor had the suit pronote been executed at Palani so as to file the suit in the trial Court and on such grounds, the defendant would pray to dismiss the suit with costs.
4. Based on the above pleadings, the trial court has framed two issuesfor determination, viz.
(1) Whether the suit pronote is not supported by consideration and whether the suit pronote had been executed in the manner narrated in the written statement? And
(2) What relief, is the plaintiff entitled to?
With these issues framed for determination of the suit, the lower Court has ordered the trial to be held, in which on the part of the plaintiff, he would examine himself as P.W.1 and on the part of the defendant, the defendant besides examining himself as D.W.1 would also examine another Sethupathi as D. W. 2 for oral evidence. So far as the documentary evidence is concerned, the plaintiff would mark three documents as Exs.A.1 to A. 3, Ex.A.1 being the suit pronote dated 29.7.1982, Ex.A.2 being the reply dated 4.7.1985 given for the legal notice issued under Ex.A.3, dated 27.5.1985. On the part of the defendant, two documents would be marked as Exs B.1 and B.2. Ex.B.1 being the receipt dated 23.9.1982 obtained on behalf of the plaintiff and Ex.B.2 dated 14.9.1982 being the letter sent by the plaintiff to Sethu. With these evidence placed on record, the lower court, having had its own discussions on the facts and circumstances brought forth by parties and in the light of the evidence made available, would ultimately arrive at the conclusion to accept the case of the plaintiff and to decree the suit as prayed for. Aggrieved against the said judgments and decree passed by the lower court, the defendant has come forward to prefer the above appeal Suit on certain grounds as brought forth in the memorandum of grounds of appeal.
5. During arguments, the learned counsel appearing on behalf of the appellant would submit that it is the defendant in the suit, who is the appellant herein and the suit is based on a pronote dated 29.7.1982 executed by the defendant in favour of the plaintiff for a sum of Rs.25,000 promising to repay the same with interest at 18% p.a. and alleging that the defendant did not repay the pronote amount, the plaintiff issued a notice dated 27.5.1985 under Ex.A.3 to the defendant, for which a suitable reply had been given on 4.7.1985 under Ex.A.2 by the defendant and the suit pronote is marked as Ex.A.1.
6. The learned counsel would also submit that on the part of the defendant, a firm stand has been taken that the suit pronote was not supported by consideration at all and the reason given is that a property at Madurai was purchased on 12.5.1982 in the name of the wife of the defendant and the said property was belonging to a person of unsound mind viz. Venkataraman, whose guardian is the wife of the plaintiff; that while obtaining permission from the Court, the so called other sharers claiming right in the said property preferred an appeal, before the High Court of Madras against the permission granted by the trial Court, and the said appeal was conducted by the plaintiff and the defendant jointly and the expenses had to be jointly met with by them and since the wife of the plaintiff had taken charge of the expenses on the part of the defendant's wife withholding an amount of Rs.25,000 from the purchase money, the defendant had to execute the pronote in favour of the plaintiff. The learned counsel would further submit that the plaintiff, at that time, received also part the money from the defendant through the plaintiff's Advocate Sethupathi and this fact has been confirmed by the said Sethupathi as D.W.2; that Ex.B.1 dated 23.9.1982 is the receipt issued by D.W.2 and Ex.B.2 dated 14.9.1982 is the letter written by the plaintiff to D.W.2 Sethupathi, who was none but his own lawyer, requesting him to get money from the defendant and that the defendant sent Rs. 11,000 by cheque and the same-had been sent to the plaintiff the next day, as per the evidence of D.W.2. The learned counsel would ultimately point out that in the said manner a total amount if Rs.28,000 had been paid to the plaintiff on many occasions and therefore even the money withheld had been paid back but the pronote had not been returned under some excuse or other and all of a sudden issuing Ex.A.3 notice, the plaintiff started claiming that amount and just one day prior to the said pronote expiring, to suit his convenience and to obtain wrongful gains, he filled the suit and that there is no case for the plaintiff nor the one put up has been substantiated in law and therefore would pray to allow the appeal.
7. In reply, the learned counsel appearing on behalf of the respondent/plaintiff would submit that the defendant admits execution of the pronote but comes forward to say that no consideration was passed under the pronote. Pointing out Section 118 of the Negotiable Instruments Act, the learned counsel would exhort that it is a rebuttal presumption, which goes against the defendant wherein the Court could presume the execution of the pronote for consideration in the manner alleged, but, on the other hand, the defendant would say that an amount Rs.25,000 was returned from out of the sale consideration of the house belonging to the insane person in favour of the wife of the defendant for the plaintiff to contest the suit filed by some of the co-sharers; that the defendant also comes forward to say that he had discharged the amount-borne by the pronote and once the plea of discharge is taken, the execution of the pronote, to the version of the plaintiff, is to be presumed by the court. Citing from the evidence of the D.W.2 and from Ex.B.2, the letter written by the plaintiff to D.W.2, the learned counsel wouldpoint out that the plea of discharge is not available for the appellant/defendant since he admitted the execution of the pronote.
8. Again laying emphasis on Section 118 of the Negotiable Instruments Act and para No.7 of the trial Court's judgment, the learned counsel for the respondent would cite two judgments. The first judgment cited by the learned counsel for the respondent is one delivered by the Apex Court in Bharat Barrel and Drum Manufacturing Company v. Amin Chand Payrelal, wherein in the context of Section 118 of the Negotiable Instruments Act, regarding the presumption as to consideration in a promissory note and the burden of proof, it has been held that 'the promissory note alleged to have been executed as a collateral security and not for the value received. Failure of defendant to prove non-existence of consideration. The onus cannot be shifted to the plaintiff. Claim made by the plaintiff has to be allowed even if evidence adduced by the plaintiff is unbelievable in rebuttal of defendant's case.'
9. The other judgment cited by the learned counsel for the respondent is one reported in Shanmuga Rajeswara Sethupathi v. Chidambaram Chettiar and others wherein also it is held that 'once execution is admitted by the defendant, the burden of proof is on him to the effect that there had been no consideration passed on.' With such arguments, the learned counsel would pray to dismiss the appeal with costs.
10. In consideration of the pleadings by parties, having regard to the materials placed on record and upon hearing the learned counsel for both, the point that is to be determined in this appeal is, whether the trial Court is right in decreeing the suit as prayed for without tangible reason assigned for the receipt of a sum of Rs.11,000 as disclosed by evidence and whether the defendant has not discharged his burden to the plea taken by him in defence.
11. On a perusal of the materials made available on record, what comes to be known is that it is a pronote suit filed by the respondent herein, for the recovery of the pronote amount of Rs.25,000 with interest at 18% p.a. and for costs on ground that the defendant on receipt of the pronote amount of Rs.25,000 promising to repay the same on demand with interest at 18% p.a., executed the suit pronote at Palani and since the defendant did not come forward to repay either the principal or the interest accrued, issuing Ex.A.3 notice, the respondent/plaintiff filed the suit before the lower Court for a decree of recovery of the said amount. Excepting these bare facts, the plaint does not contain anything other than stating that for business purposes the defendant borrowed the said amount from the plaintiff.
12. On the contrary, the defendant's case is that though under circumstances, the suit pronote was executed in favour of the plaintiff by the defendant, it was not supported by consideration since no amount, much less Rs. 25,000 borne by the pronote, had been paid by the plaintiff, so as to claim the same to be repaid, much less with interest, thus admitting the execution ofthe pronote but denying the passing of consideration. In the normal course, since the plaintiff has come forward to institute the suit on the 'existence of certain facts, basically, the onus is heavily on him to prove that there is the existence of those facts alleged in the plaint. Since the execution of the pronote is admitted by the defendant, but denied the place of execution at Palani as it is claimed on the part of the plaintiff but attributing that it was only at Madurai and vehemently denied the payment of the amount of Rs. 25,000 in his favour, the burden to prove that the consideration was not passed on to him at the time of the execution of the pronote is on the defendant who should have come forward to prove that aspect. However, the preliminary case as put up by the plaintiff to the effect that the pronote was executed at Palani as claimed by the plaintiff is his burden to establish by examining the scribe and attestors to Ex.A.1 suit pronote in proof of the manner in which it has been executed. But, on the contrary, the plaintiff in this case., would not examine this fact preliminarily thereby leaving it as it is. Even the presumption contemplated by law cannot be assumed by the Court at the outset unless preliminarily the plaintiff proves to the effect of the whole case put up by him with satisfactory evidence. He would only examine himself as P.W. 1 simply saying that the defendant on receipt of Rs.25,000, executed the pronote, thereby-marking the pronote as Ex.A.1 and the notice and reply as Exs.A.3 and A.2 respectively. In the cross examination, when it was suggested on the part of the defence that there was no consideration passed on to the defendant, the plaintiff would simply deny. Since the case of the defendant is entirely different connecting the sale of the lands of the insane person by the wife of the plaintiff as guardian and his case being that regarding the purchase of the property to contest the case, a sum of Rs.25,000 was withheld by the defendant for which alone as a security, the pronote was executed without consideration, the wife of the plaintiff who sold the said property on behalf of the insane person is a vital witness who should have been examined to rebut the defence taken, but the same has not been resorted to.
13. But, on the other hand, on the part of the defendant, in realisation of his burden, the defendant would not only examine himself as D.W.1 but would also examine another witness viz. Sethupathi as D.W.2 and would mark two documents as Exs.B.1 and B.2 Ex.B.1 being the receipt dated 23.9.1982 and Ex.B.2 being the inland letter written by the plaintiff to his lawyer D.W.2, dated 14.9.1982. According to the oral evidence let in by D.W.2 and the documentary evidence adduced through Exs.B.1 and B.2, an amount of Rs.11,000 had been obtained by the plaintiff through D.W.2, his lawyer, and there is no denying of this part of evidence by the plaintiff, who would admit in his cross-examination, that, he did receive this amount.
14. The strong case put up on the part of the defence is that on account of the purchase of the property from the plaintiff's wife, acting on behalf of the mentally ill person, by the wife of the defendant, after obtaining permission from the trial Court, they both have to jointly face the appeal preferred by the-other claimants of the said property and for that purpose asum of Rs.25,000 was retained by the defendant as a security of which, the suit pronote was formally executed by the defendant In favour of the plaintiff and hence Ex.A. 1 suit pronote is not supported by consideration. On the part of the plaintiff, there is absolutely no denying of the fact of the transaction held inbetween the parties.
15. Further more, from the evidence of plaintiff, it could be seen that prior to the said transaction, there had been no acquaintance or connection between the plaintiff and the defendant. It would be admitted that they both jointly defended the case before the trial Court and also won the same and on filing the appeal by the other side, the appeal was to be fought in the High Court of Judicature at Madras. The plaintiff's wife since being directly concerned with these facts, she should have been examined as a witness. By non-examination of his wife, the plaintiff besides allowing the Court to believe the 'version of the defendant, to be true, also allows an adverse inference to be drawn for withholding the best of evidence in spite of being available.
16. Though in the plaint it is stated that the plaintiff is a resident of Palani, all other documents would reveal just the contrary to-the effect that he is a resident of No.17, Karpagambal Nagar, Mylapore, Madras-4. There are averments to the effect that the promissory note was executed at Palani as though the defendant approached the plaintiff seeking for a loan-of the pronote amount of Rs.25,000 for his business purposes on 29.7.1982 thereby executing the Ex.A.1 suit pronote. All these pleadings go absolutely without being established with proper evidence-on the part of the plaintiff excepting to cause the production of the Ex.A.1 pronote into the Court and marking the same, examining himself as P.W.1 and speaking only to the effect of the averments there. There is not even an issue framed by the lower Court to decide the jurisdiction of the trial Court, whether the pronote was executed at Palani, so as to give jurisdiction to the trial Court to entertain the suit especially in view of the fact that the defendant vehemently denied the execution of the pronote at Palani but at Madurai. It may be remembered that neither the attestors nor the scribe of the Ex.A.1 pronote got examined by the plaintiff whose prime duty is to prove the case put up by him with substantial evidence.
17. On the contrary, the arguments of the plaintiff are that under Section 118 of the Negotiable Instruments Act, when the execution is accepted, the presumption is that the negotiable instrument was made or drawn for consideration on the date of execution of the instrument and it is for the defendant to validly prove to the effect that the said negotiable instrument was for other reasons executed, otherwise than as claimed by the plaintiff. However, such presumptions are not available for the plaintiff regarding the jurisdiction and therefore the lower Court ought to have framed an issue to that effect and evidence should have been let in by parties to the said effect especially in view of the fact that the defendant has taken a plea that the promote was not executed at Palani but at Madurai.
18. On the part of the defendant, in his attempt to demolish the case of the plaintiff and to establish to the effect that the pronote did not come into existence at the place and in the manner alleged, by the plaintiff and that no consideration was passed on as mentioned in the pronote and the same was executed for an amount of Rs.25,000 withheld by the defendant from the sale amount of the property purchased from the plaintiff's wife for the purpose of contesting the case registered by other claimants of the property, besides himself examining as D.W.1, he would also examine one Sethupathi, who is none other than the lawyer of. the Plaintiff, as D.W.2 and would mark two documents as Exs.B.1 and B.2. So far as the plea taken on the part of the defendant is concerned, there is absolutely no denying of the fact on the part of the plaintiff that there had been cases registered by some of the relatives of the mentally ill person claiming certain shares for themselves from out of the property sold by the plaintiff's wife in favour of the defendant's wife acting as guardian of the said insane person and those cases have been jointly defended by the plaintiff's wife and the defendant's wife, the vendor and the purchaser. There is also no denying of the fact that the plaintiff and the defendant were doing everything regarding the said sale since they were in the names of the womenfolks. These are all admitted facts on the part of the plaintiff.
19. While, such being the admitted facts of part of the case projected on the part of the defendant, the remaining part is only to the effect that whether an amount of Rs.25,000 had been retained for the purpose of spending for the case by the defendant for which alone the suit pronote in Ex.A.1 had been executed without any consideration?' The evidence of D.W.2, the lawyer of the plaintiff, and Ex.B.2, the letter written by the plaintiff besides Ex.B.1, the receipt issued by D.W.2 in favour of the defendant would go a long way in proof of the contention of the defendant that part payment had been made at the request of the plaintiff from out of the amount withheld i.e. to the extent of Rs.11,000 through the plaintiffs lawyer himself and if no such amount had been withheld by the defendant, he had absolutely no necessity to issue a cheque for Rs.11,000 in favour of the plaintiff's lawyer D.W.2, who receives the same and deposes to the effect that the next day itself; he had paid the said amount to the plaintiff, the receipt of which has been accepted in the evidence of plaintiff also. Therefore, all these facts cogently prove that there had been some amount withheld from out of the sale price and as guarantee for which the pronote had been executed or otherwise, the plaintiff had also no business to take any amount from the defendant. If at all any strong reason is there for the plaintiff for getting the amount from the defendant in such manner, which has been so well established through the oral and documentary evidence, through the evidence, of D.W.2 and Exs.B.1 and B.2, the plaintiff would have adduced evidence to that effect and the very silence exhibited on the part of the plaintiff would consummate and consolidate the defence taken on the part of the defendant towards the execution of the pronote.
20. While such are the peculiar facts and circumstances involved in this case, wherein the defendant in discharge of his burden cast by law, has almost succeeded, would further come forward to say that on many other occasionsalso, the plaintiff has received such amounts direct, there is reason to believe such evidence of the defendant since nothing is hidden on the part of the defendant, right-from the beginning till the end, so far as the facts and circumstances encircling the whole of the suit is concerned. Therefore, the defendant's version being truthful, honest, believable and acceptable, great importance has to be attached to the evidence of the defendant to the effect that he had paid some more amounts also. Therefore, through the highly reliable evidence of D.W.1 and that of D.W.2 and the documents marked on the part of the defendant in Exs.B.1 and B.2, there is absolutely no hesitence for this Court to arrive at a clear cut conclusion that-the defendant has pleaded and established his case in realisation of his burden of proof, as against the false and flimsy case registered on the part of the plaintiff and therefore it should be mentioned that the presumption cast by law under Section 118 of the Negotiable Instruments Act gets erased and the case of the defendant is undoubtedly and with all preponderance of probability gets established thereby utterly defeating and disclosing the case put up by the plaintiff as not only false but with intent to obtain wrongfully. Therefore, in spite of the presumption formed under Section 118 of the Negotiable Instruments Act and the decisions rendered in the cases cited on the part of the learned Counsel for the appellant, clarifying the same in the wake of admission of the execution of the pronote, would mean that the negotiable instrument was made or drawn for consideration. Things do not end with such presumptions being found so as to make the Court to jump to the conclusion that the plaintiff has proved the case but the same is only subject to the liberty of the defendant to prove the contrary and so far as the case in hand is concerned, it should be concluded that the defendant has proved the contrary over and beyond erasing the presumption so formed initially with proper and acceptable evidence and to the proof of preponderance of probability that is required by law.
21. Further, Ex.B.2 nakedly establishes that the plaintiff is broke and has no means of self-existence. On the contrary, the very purchase of the property for a fabulous amount in an effortless manner by the defendant would show that he is in affluence and there is no legal necessity nor any compelling circumstances for the defendant to borrow the meagre amount of Rs.25,000 from the plaintiff, who himself is in soup so far as his financial constrains are concerned, as revealed under Ex.B.2 and therefore, easy conclusions could be drawn in the case to the effect that neither the plaintiff has put up a valid case nor established the same in a tangible manner much less to the standard of proof or preponderance of probability but on the contrary, the defendant has established his case in a, more satisfactory and acceptable manner than it is required under law, so as to arrive at easy conclusions to dismiss the suit.
22. The lower Court, without proper approach and without framing proper issues regarding the jurisdiction of the Court and without proper application of the norms of law and appreciation of the evidence placed on record and failing to take into consideration the totality of the circumstances encircling the whole- case in an integrated manner and appreciating the evidence in a truncated way, has ultimately arrived at wrong conclusion to decree the suit as prayed for, even without any finding regarding the amountof Rs.11,000 admittedly received by the plaintiff from the defendant through his Advocate D.W.2 and therefore the judgment and decree as passed by the court below suffer from patent errors of law and perversity in approach and the same becomes liable only to be set aside.
In result, the above appeal suit succeeds and the same is allowed with costs throughout.
The judgment and decree dated 3.7.1987 rendered in O.S.No.130 of 1985 by the Court of subordinate Judge, Dindigul is hereby setaside.
The suit filed by the plaintiff in O.S.No.130 of 1985 on the file of the Court of Subordinate Judge, Dindigul is specifically dismissed.