THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO APPEAL SUIT No.1136 OF 1995 JUDGMENT: Defendants Nos.2, 4 to 9 in O.S.No.2 of 1988 on the file of the I Additional Subordinate Judge, Warangal, are the appellants herein. 2. The suit was filed for recovery of a sum of Rs.1,05,500/- with interest at 12% per annum on the principal amount of Rs.90,000/- said to have been borrowed by the deceased 1st defendant on 21.06.1986 and the said amount is said to have been paid under a cheque issued in favour of the deceased 1st defendant drawn on Union Bank of India. But, in spite of repeated demands and legal notice, the 1st defendant has not paid the money. Hence the suit. 3 The deceased 1st defendant has filed written statement contending that he did not borrow any money from the plaintiff and did not execute the promissory note and also did not receive any consideration and the cheque was not encashed by him. Therefore, there is no liability. During the pendency of the suit, the 1st defendant died and the appellants herein were brought on record as legal representatives. They have filed written statement denying the loan transaction, pleaded that they are not aware of the suit transaction. 4. On the basis of the above pleadings, the following issues have been framed by the trial Court, for trial: 1) Whether the plaintiff is entitled for recovery of the suit amount as prayed for from the defendants? 2) To what relief? 6. On behalf of the Plaintiff, PW.1 was examined and marked Exs.A.1 to A.4. On behalf of the defendants, no oral and documentary evidence was adduced. After considering the evidence on record, the learned Subordinate Judge decreed the suit of the plaintiff against the estate of the deceased 1st defendant in the hands of the appellants. Aggrieved by the said judgment, the present appeal is filed. 6. Memo is filed by the learned counsel for the appellants stating that the 1st appellant died and the legal representatives are already brought on record. 7. The points that arise for consideration are: 1) Whether the suit transaction is true and whether the plaintiff has lent money to the deceased 1st defendant? 2) Whether the defendants are not liable to pay the suit amount? 8. POINTS: Evidently, the executant of the promissory note is not alive. The appellants herein are only pleading ignorance of the transaction. Strength of the contention of the counsel for the appellants is even during the lifetime of the 1st defendant, he filed a written statement denying the execution of the promissory note and also the receipt of the consideration under cheque and in such circumstances, the burden is heavy on the plaintiff to prove the execution of the promissory note and passing of the consideration. But, in this case, according to him except the interested statement of the plaintiff, no other evidence is adduced and the non-examination of the defendants is not a material fact to be taken into consideration. It is true that the plaintiff has not examined any of the persons associated with the document. The plaintiff has been cross-examined on the aspect of the execution of the promissory note and also the issuance of the cheque. It is true that the plaintiff has not summoned any document from the bank to show that the amount was in fact realised by the deceased 1st defendant. But, the fact remains that the evidence of PW.1 clearly shows that Ex.A.2 promissory note was executed by the deceased 1st defendant. Therefore, by virtue of such evidence, a presumption is carried in favour of the plaintiff and a rebuttal can only be made by the defendants by summoning the record from the bank to show that the cheque alleged to have been issued in favour of the deceased 1st defendant was not encashed. But, for the reasons best known to the defendants, no effort was made and therefore, it is not open to the defendants to contend that the burden is on the plaintiff to summon the records from the bank. When the evidence of the plaintiff shows the execution of the promissory note, the presumption works in his favour unless there is contrary evidence to disprove the same. On the other hand, as rightly found by the lower Court, a legal notice is said to have been issued before institution of the suit to the deceased 1st defendant but he did not give any reply. Therefore, from the above circumstances, it is quite clear that the evidence of PW.1 was rightly accepted by the lower Court and there is nothing to hold to the contrary. Accordingly, there are no merits in the appeal. Accordingly, the appeal is dismissed. There shall be no order as to costs. ______________________________ JUSTICE N.R.L.NAGESWARA RAO Date: 10.10.2011. INL