IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 03.07.2009 CORAM: THE HONOURABLE MR.JUSTICE M.VENUGOPAL A.S.No.474 of 2002 R.Jayaraman .. Appellant/Plaintiff -vs- S.Natarajan .. Respondent/Defendant This appeal is filed under Section 96 of CPC against the Judgment and Decree dated 12.10.2001 in O.S.No.89 of 2000 on the file of Court of Additional District Judge, Karaikal. For appellant : : Mr.S.Viswanathan For respondent : : Mr.S.Natarajan J U D G M E N T This appeal has been projected by the appellant/plaintiff as against the Judgement and decree dated 12.10.2001 made in O.S.No.89 of 2000 on the file of Additional District Judge, Karaikal in dismissing the suit claim in entirety. 2. The germane facts of the plaint are as follows: The respondent/defendant has borrowed a sum of Rs.1,00,000/- on 27.12.1998 and executed a promissory note agreeing to repay the principal amount along with the interest at 18% p.a. The respondent/defendant has not repaid the due loan amount to the appellant/plaintiff inspite of repeated demands made thereto. Hence the appellant/plaintiff has issued a notice to the respondent/defendant demanding payment of the said amount. A reply dated 3.10.2000 has been sent by the respondent/defendant stating that there has been no money transaction between him and the appellant/plaintiff on 27.12.1998 and that he is not in receipt of a sum of Rs.1,00,000/- from the appellant/plaintiff and also stated that he has given a blank promissory note stamped and signed by him as security towards chit transactions with the appellant/plaintiff and that the appellant/plaintiff has filled up the same and converted into a promissory note and thereupon issued a notice. A rejoinder dated 18.11.2000 has been issued by the appellant/plaintiff stating that there is no truth in the reply notice and that the suit transaction has taken place on 27.12.1998 at the residence of the https://hcservices.ecourts.gov.in/hcservices/ appellant/plaintiff etc., More over, the appellant/plaintiff and the respondent/defendant being working co workers in S.R.Mills, Nedungadu and the appellant/plaintiff on his voluntary retirement has received a lumpsum amount from the mills and kept the money in his Savings Bank Account with the Lakshmi Vilas Bank Limited, Karaikal, and helped the defendant in respect of his sundry debts. 3. The respondent/defendant has commenced the act of lending money to various individuals receiving usurious interest from his debtors. But he has not cared to repay the loan due to the appellant/plaintiff . For the rejoinder dated 18.11.2000, issued by the appellant/plaintiff, the respondent/defendant has not given a reply and further has also not complied with the demand made in the notice. Hence the suit is laid for recovery of principal amount of Rs.1,00,000/- with interest at 18% p.a from the respondent/defendant (for the period from 27.12.1998 to 27.11.2000) amounting to Rs.34,500/- totalling in all a sum of Rs.1,34,500/- together with future interest and costs. 4.The respondent/defendant has filed a detailed written statement taking the pleas that the appellant/plaintiff has been a mill worker and that the respondent/defendant is still working in the Soundaraja Mills and that when the appellant/plaintiff has been a worker, he has conducted different groups of monthly chits from the year 1991 and that respondent/defendant has been a subscriber in all six groups of chits and that when the respondent/defendant has been a successful bidder in the auction of chits,at that time, the appellant/plaintiff has obtained six unfilled promissory notes signed by the respondent/defendant without specifying the dates, when the chit amounts have been paid to the respondent/defendant and further the respondent/defendant has been a subscriber of chits which have been conducted by the appellant/plaintiff in the year 1993 to 1995 and when the chit amount has been disbursed , the appellant/plaintiff has retained the unfilled promisory notes as security and more over the respondent/defendant has been regular in repayment of chit amount and the balance amounts have been completely paid on 1.11.1998 for which a receipt has been issued by the appellant/plaintiff. 5. Added further, it is the specific case of the respondent/defendant that the appellant/plaintiff has not returned the promissory notes stating that the same will be returned after finding them. The respondent/defendant trusted the plaintiff and therefore has not insisted the appellant/plaintiff to return the unfilled promissory notes. Again, the respondent/defendant has joined as a subscriber in the chit in the year 1998 and has received the chit amount in the acution. When the appellant/plaintiff has been paying the chit amount, he insisted that the respondent/defendant to sign in fresh promissory notes and the respondent/defendant refused to sign the same and therefore, a dispute has arisen between the parties which resulted in an issuance of an Advocate notice by the appellant/plaintiff claiming a sum of Rs.1,00,000/- from the respondent/defendant. A suitable reply dated 3.10.2000 has been issued to the appellant/plaintiff for which, a rejoinder on https://hcservices.ecourts.gov.in/hcservices/ 18.11.2000 has been issued by the appellant/plaintiff with a developed version etc and an undated signature and stamp affixed on the promissory note and the manner in which the same has been prepared indicates that no transaction has taken place on 27.12.1998. 6. The respondent/defendant has issued a notice dated 13.2.2001 to the appellant/plaintiff requiring him to return all the promissory notes for which a reply dated 22.2.2001 has been issued by the appellant/plaintiff. In fact, the appellant/plaintiff has received a sum of Rs.33,416/- alone on his voluntary retirement on 31.1.1996. The promissory note in and by which the appellant/plaintiff makes a claim is not supported by consideration and no money transactions have taken place on 27.12.1998. 7. Before the trial Court, on the side of the appellant/plaintiff witness P.W.1 has been examined and Exs A1 to A5 have been marked and on the side of the respondent/defendant, D.W.1 has been examined and Exs B1 to B5 have been marked. 8. On an appreciation of oral and documentary evidence and after analysing the same , the trial Court has ultimately come to the conclusion that the suit promissory is not supported by consideration and that the respondent/defendant is not liable to pay the suit amount together with interest thereto and resultantly dismissed the suit with costs. 9. The points that arise for determination in this appeal are "1.Whether the suit promissory note is true and genuine one and duly supported by consideration ? 2. Whether the appellant/plaintiff is entitled to the claim the suit amount as prayed for? 10. This Court has heard the learned counsel appearing for the parties and noticed their contentions. 11. Point Nos.1 and 2 Contentions ,Discussions and Finding: The learned counsel for the appellant/plaintiff urges before this Court that the trial Court has not taken into account of the fact that the respondent/defendant , after receiving the consideration has duly executed Ex A1 promissory note and therefore, the respondent/defendant is liable to pay the suit amount and respondent/defendant after admitting the execution of Ex A1 promissory note then, it is for him to prove that the consideration has not been received and this vital fact of the matter has not been taken note of by the trial Court and moreover, the burden of proof has been wrongly placed on the appellant/plaintiff in disregard to the ingredients of Section 118 of Negotiable Instruments Act and in fact for the suit promissory note consideration has been paid which is proved by the appellant/plaintiff as per Ex A4 Savings Bank Account and withdrawal of the amount on 26.12.1998 and that Ex A4 savings bank account will clearly establish that the consideration has been paid for Ex A1 promissory note and added further Section 20 of the Negotiable Instruments Act enjoins, the holder to fill up the https://hcservices.ecourts.gov.in/hcservices/ blanks and negotiate the instrument and hence Ex A1 has been proved to have been duly executed and as a matter of fact, the respondent/defendant neither examined any other witness nor file any documentary proof in regard to his allegation that he has given other blank promissory note to the appellant/plaintiff and in civil proceedings, it is only the appellant/plaintiff who is to prove the case and it is not for the respondent/defendant to rebut the presumption under Section 118 of the Negotiable Instruments Act and without any acceptable evidence, the trial Court has committed an error in holding that the respondent/defendant has executed the blank promissory note while withdrawing the chit amount and that the said blank promissory note has been made used by the appellant/plaintiff and also that the trial Court has failed to consider that merely because there is a discrepancy in regard to the evidence of P.W.1 as to the investment of Rs.1,00,000/- obtained on retirement , the same will not in any way affect the case of the appellant/plaintiff and therefore prays for allowing the appeal in furtherance of substantial cause of justice. 12. Continuing further, the learned counsel for the appellant/plaintiff contends that the respondent/defendant has not produced any document to show that he is a subscriber of chit and further that no one gives any promissory note in a blank form and the practice in the chit company is to take the promissory note from the borrower duly filled therein and a borrower in a chit transaction is called the price subscriber and that the respondent/defendant has borrowed a sum of Rs.1,00,000/- from the appellant/plaintiff and executed Ex A1 promissory note thereto on 27.12.1998 agreeing to repay the principal amount together with interest at 18% p.a. and since the respondent/defendant has not repaid the loan amount due to the appellant/plaintiff, he is entitled to recover the same. 13. The learned counsel for the appellant/plaintiff has relied on a decision of this Court reported in Mohammed Ali-v- Abdul Sinab (2001(1) CTC 281) wherein it is inter alia observed that ' the plaintiff has proved the execution of the promissory note and also passing of a consideration and that the presumption under Section 118 of the Negotiable Instruments Act will arise once the defendant admits the execution and further Section 20 of the Negotiable Instruments Act authorises the holder of signed Negotiable Instruments to fill up the blanks and to negotiate such instruments and that the presumption will arise in favour of the plaintiff on proving that the defendant has executed promissory notes on receiving the consideration and that the defendant having admitted the execution of promissory notes cannot deny his libility. In the aforesaid Judgment, it is held that the defendant has to rebut the presumption under Section 118 of Negotiable Instruments Act by direct or by bringing on record preponderance of probabilities and the defendant omitting to discharge his burden then the decree of that Court has been confirmed. 14. In this connection, it is pertinent to refer to the evidence of P.W.1/plaintiff to the effect that he has lent a sum of https://hcservices.ecourts.gov.in/hcservices/ Rs.1,00,000/- after withdrawing a sum of Rs.1,00,000/- from the bank on 27.12.1998 for which Ex A1 promissory note has been executed by the respondent/defendant and that while he has been working in the Soundaraja Mills before 5.1.2001, he has conducted a chit in which the respondent/defendant has been a member and in the group, the respondent/defendant has taken a last chit for which he has paid the amount and it is not correct to state that at the time when he has conducted a chit, he has received five unfilled promissory notes from the respondent/defendant and for the past five years, he is not conducting any chit transaction and that he is not in a possession of unfilled and signed promissory notes of the respondent/defendant as claimed and that it is not correct to state that he has executed Ex B1 dated 1.11.1998 letter and the wording of the said letter has not been written by him and it is wrong to state that he has signed the same on 1.11.1998 and that his signature has been forged in the said document. 15. It is relevant to make a mention that P.W.1 during his cross examination has specifically stated that after the chit is over, he has closed the accounts of the respondent/defendant and that he is keeping the income receipt dealings in regard the chit conducted by him but he has not in a possession of the accounts for the chits in which the respondent/defendant has been a subscriber and that he has retired from Soundaraja Mills in the year 1998 and also added that he retired in the year 1996 and his pensionary benefits have been received by him during 1996 and only from the amount received at the time of his retirement in 1996, he has lent a sum of Rs.1,00,000/- to the respondent/defendant and a week before on 27.12.1998, the respondent/defendant has asked him for a loan with a view to discharge his debts and this incident has taken place inside the mill where they have been working and at that time, he has been proceeding to his work and no witnesses are present and on 27.12.1998 at about 6.00 0' clock in the morning, the respondent/defendant has come to his house and received the loan and Ex A1 promissory note has been brought by the respondent/defendant and the recitals in the promissory note , after being written by him(Plaintiff) has been signed by the defendant with his own pen. It is to be noted that the plaintiff being a holder in due course is entitled to fill up the blanks in a instrument and negotiate it in law. 16. Continuing further, it is categorical evidence of P.W.1 that in the Soundaraja Mill finance, he has deposited his money and the said money belongs to his father in law and that he has taken the said amount and he cannot say in which year, he has deposited the said amount and he has withdrawn the same in that year itself. 17. D.W.1 /respondent/defendant in his evidence has deposed that the appellant/plaintiff has conducted six group chits in the year 1991 which he has been a subscriber and in all the six chits, he has taken part and for the chits taken by him, the appellant/plaintiff has given the amount and at the time, the appellant/plaintiff while paying the amount, has received his signature as a security in the unfilled promissory notes and even for the chits conducted by the https://hcservices.ecourts.gov.in/hcservices/ appellant/plaintiff during 1993-94,1994-95, he has been a subscriber and the appellant/plaintiff has given him the money after he has taken the chits and at the time, when the money has been paid by the appellant/plaintiff before that the appellant/plaintiff has kept six promissory notes signed by him as security and at the time when he signed in Ex A1 promissory note, the same has remained unfilled and the stamps have been affixed . ExA1 promissory note is the year 1991 and this revenue stamps are not in existence in 1998. 18. Countering the submission of the learned counsel for the appellant/plaintiff, the learned counsel for the respondent/defendant submits that in paragraph 2 of the plaint, the appellant/plaintiff has specifically averred that he has given up voluntary retirement and received a lumpsum payment from the Soundaraja Mills and kept the money in his savings Bank Account with Lakshmi Vilas Bank, Karaikal but the appellant/plaintiff during his cross examination has specifically mentioned that he has retired from the Soundararaja Mills in the year 1998 and later has stated that he has retired in the year 1996 and he has received his retirement benefits in the year 1996 and only from the retirement benefits amount received in the year 1996, he has lent a sum of Rs.1,00,000/- to the respondent/defendant as loan, and further he has not deposited his pensionary benefits in Bank and that he has given the same to his uncle and how the appellant/plaintiff can lend such a huge amount on 27.12.1998 to the respondent/defendant that too on a promissory note and evidence of the appellant/plaintiff is that he lent a sum of Rs.1,00,000/- to the respondent/defendant will amply prove the falsity of the appellant/plaintiff's case and further more, the evidence of P.W.1 is to the effect that one week prior to 27.12.1998, the respondent/defendant has asked for a loan with the appellant/plaintiff for the purpose of discharge his loan and therefore, prevaricating and destructive version of the appellant/plaintiff in developing his case does not inspire the confidence of this Court and the same is not accepted . 19. At this stage, a perusal of Ex A4 Savings Pass Book of Lakshmi Vilas Bank,Karaikal, entry shows that on 26.12.1998 a sum of Rs.1,02,000/- has been withdrawn by the appellant/plaintiff. If really, the said amount of Rs.1,02,000/- has been withdrawn by the appellant/plaintiff on 26.12.2008 as evidenced by Ex A4, then the version projected by the P.W.1/plaintiff that he has lent a sum of Rs.1,00,000/- to that the respondent/defendant from the amount received by him in the year 1996 is clearly a contradictory and incorrect which cannot stand scrutiny before a Court of law. Hence this Court is of the considered view that the appellant/plaintiff has not come out with clean hands in presenting the case in a cogent and convincing manner to the subjective satisfaction of this Court. 20. Be that as it may, the learned counsel for the respondent/defendant cites the decision of the Hon'ble Supreme Court in M.S.Narayana Menon @ Mani-v- State of Kerala(2006(3) CTC 730) is to the effect that as per Section 118(a) of the Negotiable Instruments Act, the Court shall presume that Negotiable https://hcservices.ecourts.gov.in/hcservices/ Instrument is for consideration unless and until after considering matter before it, Court either believes that consideration does not exist or considers non-existence of consideration so probable that prudent man himself under the circumstances of the case, to act upon supposition that the consideration does not exist and the rebuttal of such presumption requires probable defence to be raised by party against whom presumption lies etc., 21. The learned counsel for the respondent/defendant contends that the burden upon the defendant proving the non-existence of consideration can be either direct or bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies etc., In short, the contention of the respondent/defendant is that he has adduced evidence before the trial Court is that on a preponderance of probabilities, there is no consideration for Ex A1 in the manner pleaded in the plaint or spoken to by the plaintiff's witness and therefore the onus of proof lies on the appellant/plaintiff and the general presumption has disappeared and as per Section 118 of the Negotiable Instruments Act and therefore, the respondent/defendant is no concerned about the same any longer, and in a civil case, the respondent /defendant may not let in any evidence to discharge the initial burden placed on him. Moreover, a presumption is only a legal or factual assumption drawn from existence of certain facts. 22. Also the decision of this Court in Swaminanthan-v- M.Kumar (2007-1 L.W.797) is relied on the side of the respondent/defendant to show that the legal presumption under Section 118 of Negotiable Instruments Act has been rebutted by the defendant and the burden is shifted to the plaintiff passing of consideration under Ex A1 promissory note. One cannot ignore an important fact that P.W.1/plaintiff has specifically deposed in his evidence that he is keeping the income and expenditure accounts in regard to the chits conducted by him but he has not in possession of the accounts belonging to the chits in which the respondent/defendant has been a member and this kind of evidence is hardly to be believed and that too at a time when a specific plea is taken on the side of the respondent/defendant that the appellant/plaintiff has made use of the unfilled and signed promissory note of the respondent/defendant which have been given earlier. 23. Even though, the appellant/plaintiff has denied the signature in Ex B1 letter and further notwithstanding the fact that he has denied the contents of recitals found in the said document. On a perusal of the plaint, this Court comes to the inevitable conclusion that the signature of the plaintiff found in the plaint and the signature found in Ex B1 letter are clearly that of the appellant/plaintiff. Further more, a perusal of the signature of the appellant/plaintiff found in the vakalat also clinchingly point out the signature found in vakalat is only that of the appellant/plaintiff. Indeed, as per Section 73 of the Indian Evidence Act, the Court of law is empowered to compare the disputed signature of a person seen in documents. There is no legal bar for a https://hcservices.ecourts.gov.in/hcservices/ Court to compare the disputed signature with its own eyes with that of proved signature of a person. However, the admitted signature must be contemporaneous one or prior to the filing of the suit and the same is permissible . In fact, a Court of law need not get expert opinion in each and every case, though the Court must be slow in venturing on an opinion on the basis of the mere comparison. 24. The power of the Court in regard to the comparison of signature as per Section 73 of the Indian Evidence Act, is inherent and by exercising the said power, this Court a perusal of Ex B1 letter comes to the inescapable conclusion that the signature in Ex B1 letter is only that of the appellant/plaintiff and more over, the recitals found in Tamil in Ex B1 letter in unequivocal terms point out that there is no outstanding between the respondent/defendant and the appellant/plaintiff in regard to the chit transactions. Ex B1 letter is dated 1.11.1998. If really, there is no outstanding amount between the parties as on 1.11.1998 as per Ex B1 letter, then the suit promissory note dated 27.12.1998 must be a concocted one and for the existence of Ex A1 suit promissory note, there is no tangible and accepted evidence on the side of the appellant/plaintiff worth accepting. 25. Per contra, the stand taken by the respondent/defendant is that there is no due between the parties as per Ex B1 and more over that the appellant/plaintiff has not returned the earlier promissory notes and further that at the time, when he is executed the promissory note, the same has remained unfilled and that the stamps affixed in Ex A1 promissory note do not relate to the year 1998 and it belongs to the year 1991 clearly probablise the case of the respondent/defendant in a preponderant manner but no consideration has taken place on 27.12.1998 in the considered opinion of this Court. 26. On a careful consideration of respective contentions and on taking note of the cumulative circumstances of the case in an integral opinion of this Court is of the considered view that the appellant/plaintiff has not established to the satisfaction of this Court that Ex A1 has been true, genuine and valid document supported by adquate consideration and resultantly the appeal fails. 27. In fine, for the foregoing reasons, the appeal is dismissed without costs and resultantly, the Judgment and decree of the trial Court in O.S.No.89 of 2000 are affirmed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ sg To 1.The Additional District Court, Karaikal 2.The Section Officer, V.R.Section, High Court, Madras-104. 1 cc To Mr.R.Natarajan, Advocate, SR.28528 1 cc To M/s.A.Muthukumar, Advocate, SR.27528 A.S.No.474/2002 ksk(co) pmk.24.8.2009. https://hcservices.ecourts.gov.in/hcservices/