THE HON'BLE SRI JUSTICE K.C.BHANU APPEAL SUIT No.56 of 2006 JUDGMENT: This appeal is directed against the judgment and decree dated 09.10.2002 in O.S.No.20 of 1996, on the file of the Principal Senior Civil Judge, Eluru, West Godavari District, whereunder and whereby the suit filed for recovery of money was decreed. 2. The appellant herein is the defendant and the respondent herein is the plaintiff in the suit. 3. The averments of the plaint in brief are as follows: The plaintiff filed the afore-mentioned suit stating that the defendant borrowed a sum of Rs.75,000/- on 04.03.1993 to discharge the debts and executed a pronote agreeing to repay the same with interest at 12% p.a. It is stated that, despite repeated demands, the defendant failed to discharge the debt due under the pronote. Hence the suit. 4. The defendant filed his written statement denying the receipt of consideration of Rs.75,000/- under the pronote and pleaded that the plaintiff was the owner of Durga Lakshmi Tirumalesa Ceramics, that the husband of the defendant, Syam Prasad, was an Engineering Consultant from whom the plaintiff used to take advice in the manufacture of ceramics, that the plaintiff was indebted to financial institutions to a tune of Rs.5.00 lakhs including interest and as the plaintiff was unable to discharge the debts, he sold the machinery and other movables. It is further pleaded that, out of acquaintance, the plaintiff borrowed huge amount from the defendant on the basis of hand-letter, that the plaintiff used to borrow either from the defendant or from her husband and used to give receipts for the same, that when the plaintiff was pressed to repay the amount, he suggested to the husband of the defendant to take the unit and would execute the pronote for the balance amount, that the plaintiff sold the unit to the defendant at Rs.1,94,000/-, that the plaintiff was due to pay a sum of Rs.1,25,000/- to the defendant apart from Rs.2,50,000/- taken from her husband. The plaintiff gave receipts to the defendant and represented to execute a pronote for the balance amount. Accordingly, the defendant executed the suit pronote. It is further pleaded that, after settling the accounts, the plaintiff was given the receipts given by him to the husband of the defendant, that an amount of Rs.2.00 lakhs, excluding interest, was due from the plaintiff to the husband of the defendant, that the said Rs.2.00 lakhs does not include the receipts returned to him and that the plaintiff in order to create credibility in the eyes of his creditors filed the suit canvassing that the defendant was indebted to him. Hence, he prays to dismiss the suit. 5. Basing on the above pleadings, the trial Court framed the following issues: 1. Whether the plaintiff is entitled to recover the suit amount from the defendant together with interest on Rs.75,000/-? 2. To what relief? 6. To substantiate the claim, PWs.1 and 2 were examined and Exs.A.1 to A.3 were marked on behalf of the plaintiff. On behalf of the defendant, DW.1 was examined and Exs.B.1 to B.12 were marked. 7. The trail Court, after considering the evidence on record, decreed the suit with costs for Rs.1,01,521.23 ps. along with subsequent interest at 6% p.a. on Rs.68,000/- from the date of suit till the date of realization. Challenging the same, the appellant- defendant filed the present appeal. 8. Learned Counsel for the appellant-defendant contended that the suit pronote was not supported by consideration and was executed in adjustment for purchasing the ceramic unit and, therefore, he prays to set aside the impugned judgment. 9. Learned Counsel for the respondent-plaintiff contended that, as the execution of the pronote and the liability to pay the amount has not been denied by the defendant in the trial Court, presumption that has to be drawn is Ex.A.1-pronote is supported by consideration and, therefore, there are no grounds to interfere with the judgment under appeal. 10. The evidence of PW.1 would go to show that the defendant borrowed a sum of Rs.75,000/- on 04.03.1993 for the purpose of discharging the debt and executed the pronote. The evidence of PW.2, who is an attestor of the pronote, would also clearly go to show that the defendant borrowed a sum of Rs.75,000/- and executed the pronote. From the evidence adduced on behalf of the plaintiff, it is established beyond prepondernace of probability that the defendant borrowed Rs.75,000/- and executed Ex.A.1, promissory note. In such circumstances, undoubtedly plaintiff is entitled to the presumption under Section 118(a) of the Negotiable Instruments Act, 1881 (for short ‘the Act’). Even, the defendant did not deny either the execution of the pronote or the liability to pay the amount under Ex.A.1. Once the execution of the pronote has not been denied nor disputed, presumption under Section 118 of the Act can be drawn. If it is drawn, it can be presumed that the pronote is supported by consideration. Of course, the said presumption can be rebutted by adducing necessary evidence or he can elicit from the evidence of plaintiff’s witnesses to show that the pronote was not supported by consideration. There is no such evidence to show that Ex.A.1, pronote, was not supported by consideration and that the liability to pay the amount under Ex.A.1 has neither been seriously denied nor disputed by the defendant. Exs.B.1 to B.11 are the receipts filed by the defendant which are not in dispute. Plaintiff admitted about receipt of certain amounts covered by Exs.B.2 to B.12 from the husband of defendant for the purpose of payment of instalments to Andhra Bank. In respect of this transaction, the husband of defendant filed a suit in O.S.No.56 of 1996 on the file of Principle Senior Civil Judge, Eluru. That suit was dismissed. Against the dismissal order, appeal in A.S.No.56 of 2006 on the file of this Court is pending. The payments received by plaintiff under Exs.B.2 to B.11 are the subject matter of appeal. The defendant cannot claim adjustment against the present suit claim as those amounts were received by plaintiff for the purpose of paying instalments due to Andhra Bank. The issue under Exs.B.2 to B.11 is separate and distinct than that of Ex.A.1. Therefore the burden placed on defendant has not been discharged to show that Ex.A.1 is not supported by consideration. Hence, the trial Court was justified in decreeing the suit and, therefore, the impugned judgment and decree need no interference by this Court. 11. Accordingly, the appeal is dismissed. No order as to costs. ________________ K.C.BHANU, J Dt:02.02.2011 usd