IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 06.04.2010 CORAM: THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR S.A.No.339 of 2010 and M.P.No.1 of 2010 C.Palani, S/o.Chinnasami Mudaliar ... Appellant / Defendant Vs. J.Kumar, S/o.M.A.Jayarama Mudaliar ... Respondent/ Plaintiff Second Appeal filed under Section 100 of Civil Procedure Code against the judgment and decree dated 08.07.2009 made in A.S.No.26 of 2008 on the file of the Principal District Court, Vellore confirming the judgment and decree dated 22.10.2007 made in O.S.No.107 of 2004 on the file of the Sub-Court, Ranipet. For Appellant : Mrs.K.M.Valsala JUDGMENT The submissions made my Mrs.K.M.Valsala, learned counsel for the appellant were heard. Grounds of appeal and the documents produced along with the grounds of appeal were also perused. 2. The unsuccessful defendant is the appellant in the second appeal. The suit was filed by the respondent herein for recovery of money due under the suit Promissory Note, marked as Ex.A1, which was assigned by P.W.2 in favour of the respondent herein (plaintiff). The endorsement showing the assignment has been marked as Ex.A2. The notice of demand made by the respondent after such assignment was received by the appellant herein/defendant. But the appellant herein/defendant neglected to issue any reply, either admitting or denying the allegation that he borrowed money from P.W.2 under Ex.A1-Promissory Note. Copy of the notice and the acknowledgement thereof, have been marked as Ex.A3 and A4 respectively. 3. The suit was defended by the appellant herein/defendant contending that he never borrowed any amount https://hcservices.ecourts.gov.in/hcservices/ from P.W.1 and the suit Promissory Note (Ex.A1) was not executed by him and the same could not be true. On the side of the plaintiff/respondent herein, the plaintiff and the original creditor were examined as P.Ws.1 and 2 respectively. On the side of the appellant herein/defendant, he figured as the sole witness. No document was marked on his side. After hearing the arguments advanced on either side, the learned trial judge considered the pleadings and evidence in the light of the points urged in the arguments advanced on either side and upon such a consideration, came to the conclusion that there was sufficient evidence on the side of the plaintiff to prove the borrowal and execution of Ex.A1-Promissory Note. It was also found by the trial court that the assignment was made for consideration. The above said finding was also based on the fact that the appellant herein/defendant did not even care to send a reply to the notice of demand, either admitting or refuting the contention made in the demand notice. 4. The trial court had given a finding of fact that the Promissory Note was a genuine one and that the same was supported by consideration. The challenge made by the appellant herein/defendant before the lower appellate court also met with the same fate. As the appellate court concurred with the trial court in all respects, as against the concurring findings and the concurrent judgment of the courts below, the appellant herein/defendant has come forward with the present second appeal. 5. The learned counsel for the appellant has made an attempt to project the question of burden of proof as a substantial question of law involved in this case. Normally, the plaintiff, who comes forward with a prayer, shall be the person on whom the initial burden of proof of his case shall lie unless a statutory provision imputes a presumption. The question involved in this appeal is "whether the evidence was sufficient for shifting the burden of disproving the suit Promissory Note on the defendant?" 6. There has been proper evidence through P.W.1-the plaintiff himself and P.W.2, the alleged creditor from whom the appellant herein/defendant borrowed money, without any inherent flaw. In addition to that, the appellant herein/ defendant, who received the statutory notice, did not issue any reply for about four months, i.e. till the filing of the suit. Under such circumstances, the defendant also has not chosen to get the disputed Promissory Note examined by an expert of his choice and lead evidence through such an expert. The defendant has also not taken steps to have the documents sent to the Government Forensic Laboratory for such examination and report. The https://hcservices.ecourts.gov.in/hcservices/ failure on the part of the defendant coupled with the flawless evidence of the witnesses examined on the side of the plaintiffs has justified the views of the courts below that the plaintiffs had adduced evidence sufficient enough to shift the burden of disproving the Promissory Note on the defendant. Therefore, the shifting of burden has been done properly and in accordance with the established legal principles. 7. In view of the foregoing discussions, this court is not in a position to accept the contention of the learned counsel for the appellant that this appeal involves a substantial question of law regarding the burden of proof. The well considered decisions of the courts below, do not deserve any interference. Accordingly, they are confirmed and the second appeal is dismissed in limini. Consequently, the connected miscellaneous petition is also closed. No costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. asr To 1. The Principal District Judge, Vellore 2. The Subordinate Judge Ranipet. 3. The Section Officer VR Section, High Court, Madras (for information) 1 cc to Mr.K.S. Kumar, Advocate, SR. 22501 S.A.No.339 of 2010 RSN (CO) kk 14/5 https://hcservices.ecourts.gov.in/hcservices/