B. K. MEHTA, G. T. NANAVATI, J. ( 1 ) THIS appeal at the instance of the original plaintiff is directed against the judgment and order of 3rd Joint Civil Judge (S. D.) Baroda dismissing the suit of the plaintiff for recovery of Rs. 7 0 as and by way of principal amount together with Rs 3 250 as and by way of interest of a promissory note of October 23 1968 said to have been executed by the original diffident for Rs. 7 0 for value received. In the opinion of the learned Judge the presumption raised on the basis of the promissory note in question was rebutted since the plaintiff had failed to produce the relevant account books to establish the consideration for which the note was executed by the defendant. It is this order of the learned Judge which is challenged in this first appeal before us. ( 2 ) THE respective cases of the parties hereto may be shortly referred to. The plaintiff is a dealer in cloth and defendant was a person of his acquaintance and was his customer. He used to purchase cloth goods on credit from time to time. The plaintiff claimed that on October 23 1968 the accounts of the defendant were settled and he executed a promissory note for Rs. 7 0 which he promised to repay with interest at the rate of 18% per annum. The plaintiff however restricted his claim on account of interest at the rate of 15%. Before filing the suit he called upon the defendant by the letter of his Advocate of 2nd July 1971 to arrange to pay the said amount together with interest failing which he would be constrained to file the suit to recovery the said amount. Since the defendant failed and neglected to comply with the demand made in the notice the present suit being Special Civil Suit No. 215 of 1971 was filed in the Court of Civil Judge (S. D.) at Baroda for recovery of Rs. 7 0 as and by way of principal amount and Rs. 3 150 by way of interest. ( 3 ) THE defendant resisted the suit contending inter alia that he had not borrowed any amount from the plaintiff nor any accounts were settled on 22nd October 1968 or on any other occasion as alleged. He denied that he executed any promissory note for Rs. 3 150 by way of interest. ( 3 ) THE defendant resisted the suit contending inter alia that he had not borrowed any amount from the plaintiff nor any accounts were settled on 22nd October 1968 or on any other occasion as alleged. He denied that he executed any promissory note for Rs. 7 0 on the said date and promised to repay the said amount with interest at the rate of 18 per annum. A plea of limitation was also raised by the defendant. The version of the diffident was that the plaintiff and his son were friends and since he was doing business in cloth goods and cotton threads he was required to visit Ahmedabad in connection with his business from time to time and therefore used to here taxi of his son for which his son used to charge him Rs. 100. 00 per day having regard to their friendly relationship but the plaintiff did not use to pay the said charges in cash but used to credit the said amount in the accounts of his son in the trading books of the plaintiffs business. His son used to withdraw the amount whenever he required either for purposes of repair of the car or for payment of petrol bills. His son also used to purchase cloth from the plaintiffs shop and the plaintiff also used to advance cash amounts if there is no credit balance in the accounts of his son for which no interest was charged. His son also used to deposit the amounts with the plaintiff whenever there was a surplus cash on his hand. In view of this close relationship between the plaintiff and his son the defendant always respected him and held him in high esteem and treated him as his well wished and always used to place confidence in him that he would never do any bad turn to him. According to the defendant he was required to give some writing by the plaintiff stating that the accounts had been settled between the plaintiff and his son. The defendant assured to do needful after consulting his son. The defendant had there after told the plaintiff that in no case his son was indebted to him in more than Rs. 1500. 00 to Rs. 2000. The defendant assured to do needful after consulting his son. The defendant had there after told the plaintiff that in no case his son was indebted to him in more than Rs. 1500. 00 to Rs. 2000. 00 and thereupon the plaintiff assured him that if the defendants son declared that no accounts were settled between them the writing would be challenge. The plaintiff further assured him that no suit was to be filed on the basis of the said promissory note which was required by him for personal reasons of his business He made a grievance against the defendant that the defendant was not prepared to rely on the statement of the plaintiff who always showed love and affection towards the defendant. In the circumstances the writing in the nature of promissory note was executed. He pleaded that there was no consideration for the alleged promissory note which the plaintiff had got executed from him by misrepresentation and under undue influence exercised upon him. ( 4 ) ON these respective cases of the parties issues were raised and the burden of proof of want of consideration Was placed on the defendant. In the course of the hearing of the suit the defendant made an application seeking inspection of the books of accounts of the plaintiff by his application Ex. 36 of 24th January 1973. The learned Civil Judge by his order of 2nd April 1973 granted inspection as prayed for. The pursis by which the defendant declared before the Court that he had taken inspection of certain documents are produced at Exs. 47 to 31 on the record of the trial Court. While Ex. 50 is a pursis given by the plaintiff stating that he had produced and given inspection of the account books and bills to the defendant as directed by the Court by Ex. 47 the Advocate of the defendant declared that he was given inspection of the account books of S. Ys. 2000 2001 and stated that there are no other account books besides those tendered for inspection. By Ex. 51 the Advocate for the defendant had declared that he was given inspection of Bills Nos. 2724 and 1137 the carbon copies of which were to be found in the credit billbook. 2000 2001 and stated that there are no other account books besides those tendered for inspection. By Ex. 51 the Advocate for the defendant had declared that he was given inspection of Bills Nos. 2724 and 1137 the carbon copies of which were to be found in the credit billbook. He was also given inspection of debit Nondh of S. Y. 2024 and he was told that there were no other books than those rendered for inspection. By EX. 52 the defendant again moved the trial court that the plaintiff had not produced documents and the account books of which the inspection was ordered to be given to the defendant and therefore it was necessary that the plaitiff should declare whether he intended to rely on the documents tendered for inspection. The learned Civil Judge by his order of 18-10-1973 did not give direction as prayed for in view of the Advocate for the plaintiff declaring before him that the plaintiff did not intend to rely on the documents other than those which were tendered for inspection. The learned Civil Judge recorded the evidence of the parties and on consideration of oral evidence he held following the decision of the Supreme Court in Kundanlal Rallaram v. Custodian Evacuee Property AIR 1961 SC 1316 that since the plaintiff has not produced the relevant account books the presumption raised on the basis of the promissory note under sec. 118 of the Nagotiable Instrument Act was rebutted with the result that the burden of proof shifted to the plaintiff who had failed to prove the consideration. He therefore dismissed the suit as stated above. ( 5 ) THE only question which arises for our consideration in this appeal is whether the learned Judge was right in dismissing the plaintiffs suit in its entirety on the facts and in the circumstances of the case and particularly in disregard of his clear admission of the defendant in the written statement that nothing more than Rs. 1500. 00 to Rs. 2000. 00 was due to the plaintiff from his son. 1500. 00 to Rs. 2000. 00 was due to the plaintiff from his son. The learned Advocate appearing for the appellant plaintiff urged that the trial Court was completely in error in relying on the decision of the Supreme Court in Kundanlals case (supra) since there was no withholding or suppression of the books or vouchers in the present case before us and therefore there was no justification for driving any adverse inference as a result of which the presumption arising on the basis of the promissory note could be said to have been rebutted. In support of his submission heavy reliance was placed on the decision of the Bombay High Court in Tarmahomed Haji Adbul Rehman v. Tyed Ebrahim Bharamchari (1950) ILR Bom; 345 at pages 353 and 357. ( 6 ) SEC. 118 of the Negotiable Instruments Act provides that until contrary is proved a presumption would arise that every negotiable instrument is made or drawn for consideration. In other words the rule provides that a bill of exchange or a promissory note prima facie imports consideration or value. However this will not tantamount to saying that there is a presumption as to quantum of consideration. In Narasamma v. Veerraju AIR 1935 Mad 769 Varadachariar J speaking for the Court said that having regard to mercantile usage and the interests of business it had been developed as a rule of practice and pleading in the English law that in the case of bills and notes there need be no reference either in the document itself or in the plaintiffs pleadings to value received or to payment of consideration. He further observed that in later cases this idea came to be embodied in the rule that a bill or note prima facie imports consideration or value and the same is reproduced in sec. 30 of the Bills of Exchange Act. He thereafter referred to the Indian Act and observed as under:"there is no reason to think that sec. 118 of the Indian Act lays down anything more than this. Neither the earlier case Law nor the language of the sect on justifies any presumption being made as to the quantum of consideration. 30 of the Bills of Exchange Act. He thereafter referred to the Indian Act and observed as under:"there is no reason to think that sec. 118 of the Indian Act lays down anything more than this. Neither the earlier case Law nor the language of the sect on justifies any presumption being made as to the quantum of consideration. The English Act merely states that any consideration sufficient to support a simple contract may constitute valuable consideration for a bill or note (see S. 27) Though there is no corresponding provision in the Indian Act the principle must be the same here. . . " before the Supreme Court in Official Receiver v. Abdul Shelkoor AIR 196 SC 920 in the context of proceedings under sec. 33 of the Provincial Insolvency Act 1920 which prescribes the procedure for settlement of schedule of creditors a question arose whether the receiver exercising power under sec. 80 is bound to admit the debts in the schedule if the insolvent or the other creditors failed to displace that presumption arising on a negotiable instrument. The Supreme Court held that the presumption under sec. 118 of the Negotiable Instrument Act is a presumption of consideration and it does not in all cases prove the quantum of debt due by the insolvent at the date of the insolvency. ( 7 ) IN Kundanlals case (supra) it was held that presumption under sec 118 is one of law and Court would presume inter alia that a negotiable instrument was made or endorsed for consideration. The effect of the presumption would be to throw the burden of proof of failure of consideration on the maker of the note or endorsement as the case may be. The Supreme Court pointed out the distinction between burden of proof as a matter of law and pleading and the burden of proof in the sense of establishing a case; the former remaining static and not shifting during the course of trial while the latter is not constant but shifting as soon as a party adduces sufficient evidence to raise a presumption in his favour. The evidence which would shift burden need not be direct evidence. The evidence which would shift burden need not be direct evidence. It may comprise also of circumstantial evidence or presumption of law or fact Failure on the part of a plaintiff suing on the basis of a promissory note executed for the price of goods supplied to produce necessary books for establishing inter alia the factum of sale and the amount of consideration thereof may justify a Court in drawing an adverse inference under sec. 114 of the Evidence Act and if so inferred it can under certain circumstances rebut the presumption of law raised under sec. 118 of the Negotiable Instrument Act. . . . . . . . . . . The question whether a statutory presumption is rebutted by the evidences always a question effect (vide: Wali Mohammad and others v. Mohammad Baksh and others AIR 1930 PC 91 and Official Receiver v. Abdul Shakoor (supra) ). ( 8 ) IT is in the context of this established legal position that we have to decide whether the learned trial Judge was justified in dismissing the suit of the plaintiff in its entirety. The learned Advocate for the plaintiff urged that mere wrong description of the consideration in a promissory note would not rebut the presumption under sec. 118 of the Negotiable Instruments Act the burden would continue to be on the defendant to satisfy the Court that there was no consideration under a given promissory note. In support of this contention he relied on the decision of a Division Bench of the Bombay High Court consisting of Chagla C. J. and Bhagwati J. in Tarmahomeds case (supra) where the plaintiff had filed a suit on three Hundies in all for Rs. 3 0 payable after a certain date. The case of the defendant was that the hundis were passed for accommodation. It was urged on behalf of the defendant that inasmuch as the plaintiff had put forward as consideration of Hundis something different from what was mentioned in the hundis themselves the presumption arising under sec. 118 of the Negotiable Instruments Act was rebutted and the burden had been shifted on to the plaintiff to prove that there was consideration for these hundis. 118 of the Negotiable Instruments Act was rebutted and the burden had been shifted on to the plaintiff to prove that there was consideration for these hundis. Negativing this contention the Division Bench affirmed the view of Tandolkar J who decided the suit and held as under:"it is perfectly true that if a particular consideration is mentioned in a negoti able instrument and that consideration is found to be false and some other consideration is set up that is a factor which the Court would taken into consideration in deciding whether the defendant has discharged the burden cast upon him by sec. 118 But it is a very different thing to say that merely because the consideration mentioned in the negotiable instrument turns out to be false therefore the statutory presumption is rebutted and the burden is thrown upon the plaintiff to prove the consideration". It was therefore urged on behalf of the appellant plaintiff that if either in the plaint or in the course of evidence the plaintiff had shown that the whole of consideration was not in cash as recited in the instrument but partially comprised of the price of the goods supplied it cannot rebut the presumption and shift the burden the plaintiff to prove the consideration as a positive fact. It should be noted that there is a conflict of judicial opinion on this question. The Bombay High Court and Kerala High Court have taken the view that the fact that a particular form or consideration pleaded by the plaintiff had not been proved it will not be sufficient ground on which the presumption can be said to have been rebutted and will not justify any Court in reaching the conclusion that the instrument is not supported by consideration at all. The opposite view has been taken by the Punjab High Court in Chandanlalal v. Aminchand Mohanlal A. I. R. 1960 Punj 500 and Rajasthan as well as Mysore High Court in Shrinarain v. Chanilal (1957) Raj 159 and Veerappa v. Gurubasappa (1956 Mys. 30 and Madras High Court in Palaniappa v. Rajagopala (1928) Mad 773. So far as this Court is concerned the decision of the Bombay High Court rendered before 1st May 1960 would be binding to us. We have therefore examined the evidence in light of these principles enunciated by the Supreme Court and the Bombay High Court. 30 and Madras High Court in Palaniappa v. Rajagopala (1928) Mad 773. So far as this Court is concerned the decision of the Bombay High Court rendered before 1st May 1960 would be binding to us. We have therefore examined the evidence in light of these principles enunciated by the Supreme Court and the Bombay High Court. In our opinion on reading evidence of the plaintiff we are convinced that the presumption if any arising on the basis of the promissory note in question is rebutted and the burden had shifted to the plaintiff to prove the consideration. . . . . . . . . . . . . . . . . . . . (HELD on evidence that since the plaintiff did not adduce any documentary evidence to support the consideration the entire claim in the suit might have been jeopardized but for some admission made by the defendant in his written statement. The defendant had admitted a debt of about Rs. 1500 or Rs. 2000/- and not the consideration of Rs. 7000. 00 said to have been paid to the defendant as recited in the promissory note. In view of this admission decree of Rs. 2000. 00 with interest was passed.)[rest of the Judgment is not material for the reports. ]appeal partly allowed. .