IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 10TH JANUARY 2011 / 20TH POUSHA 1932 SA.No. 539 of 1999(E) ------------------------------- AS.64/1995 of I ADDL. DISTRICT COURT, THRISSUR OS.269/1991 of MUNSIFF COURT, WADAKKANCHERRY .................... APPELLANT/APPELLANT/PLAINTIFF: ------------------------------------------------------ RATNAKUMARI, S/O.CHERULI KOLAMATH RAMAN, THIRUTHIPARAMBU DESOM, PERINGANDOOR VILLAGE, TALAPPILLY TALUK. BY ADV. SRI.P.VIJAYA BHANU, SRI.T.A.UNNIKRISHNAN. RESPONDENTS/RESPONDENTS/DEFENDANTS: ---------------------------------------------------------------------- 1. RAGHAVAN, S/O.EZHUTHUPURAKKAL AYYAPPAN, ENKAKADU VILLAGE, TALAPPILLY TALUK. 2. ARAVINDAKSHAN, S/O.EZHUTHUPURAKKAL RAGHAVAN, ENKAKKAD VILLAGE, TALAPPILLY TALUK. BY ADV. MR.VAKKOM N.VIJAYAN, MR.K.S. SHERIMON, MR.P.K. PADMANABHAN, SMT.VINITHA PRASANNAN, SMT.RENJINI V. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 10/01/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 539 of 1999 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 10th day of January, 2011. JUDGMENT The plaintiff, who lost before both the courts below, is the appellant. 2. The plaintiff had, her husband, the second defendant and her father-in-law, the first defendant, brought to this court on the basis of a promissory note said to have been issued by them. The execution of the promissory note was admitted by the defendants. But their plea was lack of consideration. 3. The evidence consists of the testimony of P.Ws.1 and 2 and document marked as Ext. A1 from the side of the plaintiff. The defendants had D.Ws. 1 and 2 examined and Exts. B1 to B3 series marked. The trial court on an evaluation of the evidence in the case came to the conclusion that the plaintiff had failed to establish that Ext.A1 promissory note was supported by SA.539/1999. 2 consideration and accordingly dismissed the suit. The plaintiff carried the matter in appeal. 4. The lower appellate court re-evaluated the evidence on record. It appears that the main plea before the lower appellate court was that when the execution was admitted by the defendants, going by the presumption under Section 118 of the Negotiable Instruments Act, the burden was on the defendants to show that the promissory note is not supported by consideration. It appears that the lower appellate court accepted that plea and considered the issue whether the defendants have discharged their burden. On an appreciation of the evidence, the lower appellate court found that the finding of the trial court that the document is not supported by consideration is justified. It held that the defendants had succeeded in rebutting the presumption against him. Accordingly, the appeal was also dismissed. Hence this Second Appeal. SA.539/1999. 3 5. Notice has been issued on the following substantial questions of law raised in the memorandum of second appeal: “i) Is not the presumption under section 118 of the Negotiable Instruments act applies to this case? ii) Can the presumption under Section 118 of the Negotiable Instruments Act be rebutted, when the defendant is admitting the execution of the Instrument? iii) When there is no direct evidence to show that there is no consideration for Ext.A1 document, can a court of law disregard the document on the ground that it is not supported by consideration?” 6. Before this court too, the main plea taken by the learned counsel for the appellant is that the courts below were not justified in non-suiting the plaintiff since the execution of Ext.A1 is admitted. It was for the defendants to prove that it was not supported by consideration and the finding of the courts below in that regard is unsustainable both on facts and in law going by the evidence on record. SA.539/1999. 4 7. One shall not forget that this court is sitting in Second Appeal under Section 100 of the Code of Civil Procedure. The challenge in this second appeal is against the decision of the courts below based on an evaluation of the evidence on record. Both the courts below have concurrently found that though the execution of the document is admitted, the defendants have succeeded in proving that it is not supported by consideration. It is essentially a finding of fact. 8. However, in order to ascertain whether the courts below have not in any manner, the evidence was looked into. It appears that the relationship between the plaintiff and the second defendant was far from cordial at the relevant time. However, the case of the plaintiff as disclosed from the evidence was that at the time of borrowing and execution of Ext.A1 the relationship was extremely cordial. As noticed by both the courts below, if that be so, it is rather difficult to believe that the plaintiff would have insisted for the execution of a promissory note SA.539/1999. 5 for the borrowel of Rs.12,500/- to her husband and father-in-law. 9. The case of the plaintiff was that the amount was borrowed to enable her husband to go abroad. Defendants caused production of Ext.B3 series documents, which are portions of deposition given by the plaintiff in the matrimonial proceedings. That shows that her husband had gone abroad in 1981-82. Ext.A1 promissory note is dated 5.10.1988. Both the courts came to the conclusion that the story put forward by the plaintiff falls to the ground. It was the above facts and circumstances, which led the court below to hold against the plaintiff. There is nothing to indicate that the courts below have erred in any manner in reaching the conclusion that Ext.A1 promissory note is not supported by consideration. Both the courts below were perfectly justified in holding that the presumption available under Section 118 of the Negotiable Instruments Act stands successfully discharged by the defendants. SA.539/1999. 6 No question of law, much less any substantial question of law, arises for consideration. This Second Appeal is without merits and it is accordingly dismissed. However, there will be no order as to costs. P. BHAVADASAN, JUDGE sb.