IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 19.09.2011 CORAM THE HONOURABLE MR.JUSTICE R.S.RAMANATHAN S.A.No.1100 of 2011 and M.P.No.1 of 2011 Sivamohan .. Appellant / Defendant Vs. Jayabalan .. Respondent/ Plaintiff Prayer:- Second Appeal filed under Section 100 of Code of Civil Procedure against the judgement and decree dated 2.9.2009 made in A.S.No.214 of 2006 on the file of the Subordinate Court, Mannargudi, confirming the judgement and decree dated 29.10.2004 made in O.S.No.33 of 2004 on the file of the District Munsif Court, Thiruthuraipoondi. For Appellant .. Mr. M. Thamizhavel J U D G E M E N T The unsuccessful defendant in O.S.No.33 of 2004 on the file of the District Munsif Court, Thiruthuraipoondi, is the appellant. 2. The respondent/ plaintiff filed the suit for recovery of money on the basis of promissory note dated 3.4.2000 executed by the appellant. The appellant contested the suit stating that he has not borrowed any amount on the basis of promissory note dated 3.4.2000 as alleged in the plaint and he borrowed a sum of Rs.50,000/- on 2.11.1992 and also executed unfilled up promissory note and signed on three revenue stamps each having the value of twenty paise and after the payment of Rs.50,000/- the respondent/ plaintiff refused to give the promissory note and thereafter the same promissory note was used by the respondent/ plaintiff to sustain the claim against the appellant. 3. The trial Court decreed the suit holding that the appellant admitted the signature in the promissory note and he has not proved that the promissory note executed by him in the year 1992 was misused for the present suit and having regard to the evidence of PW1 and PW2 who was the scribe of the promissory note, the trial Court held that the respondent/ plaintiff proved the payment of consideration and presumption of Section 118 of the https://hcservices.ecourts.gov.in/hcservices/ Negotiable Instruments Act also follows after due execution of the promissory note and the appellant has not proved his case that the said promissory note was executed in the year 1992. The lower appellate Court also confirmed the findings of the trial Court and dismissed the appeal. Hence the Second Appeal. 4. The learned counsel for the appellant submitted that admitedly no notice was issued prior to the filing of the suit and the appellant was having several transactions with the respondent/ plaintiff and for those transactions the respondent/ plaintiff obtained the blank promissory notes and misused one of the promissory notes obtained from the appellant to sustain the claim. 5. I am unable to accept the contention of the learned counsel for the appellant. In a suit for promissory note there is no necessity for the party to issue notice before filing of the suit. Further, it was alleged in the plaint that demand was made on several occasions and the appellant did not make the payment. Further, it is not the case where the appellant deposited the entire amount due on promissory note on the date of first hearing and if any such deposit was made that could have been considered while awarding the costs. Therefore, having regard to the fact that the appellant failed to pay the amount of promissory note on receipt of summons it is not open to the appellant to contend that without notice the suit is not maintainable. Further, the respondent/ plaintiff admitted in his evidence that on earlier occasion the appellant borrowed the amount and executed the promissory note and that was discharged. Further, it is highly unbelievable that the promissory note executed in the year 1992 was misused in the year 2001 as alleged by the appellant and no notice was issued by the appellant to the respondent calling upon the respondent to return the promissory note executed by him in the year 1992 after discharging the promissory note amount. Considering all these aspects, both the Courts have rightly decreed the suit as prayed for. Hence, I do not find any infirmity in the Judgement and Decree of the Courts below and no substantial question of law arises for consideration in the Second Appeal and the Second Appeal is dismissed. 6. In the result, the Judgement and Decree of the Courts below are confirmed and the Second Appeal is dismissed. Consequently, the connected Miscellaneous Petition is closed. Sd/- Deputy.Registrar. /true copy/ Sub Asst.Registrar. kr https://hcservices.ecourts.gov.in/hcservices/ To 1. The District Munsif, Thiruthuraipoondi. 2. The Subordinate Judge, Mannargudi. S.A.No.1100 of 2011 and M.P.No.1 of 2011 KSK (CO) kk 20/10 https://hcservices.ecourts.gov.in/hcservices/