Judgment :- 1. This is an appeal preferred by the defendant Balakrishna Pillai against the judgment and decree in O.S. No. 78 of 1974 dated 21.1.1980 on the file of the Court of the learned I Additional Subordinate Judge, Cuddalore, decreeing the suit on a promissory note as prayed for with costs. 2. The case of the plaintiff/respondent herein is that a sum of Rs 10,553 is due and payable by the defendant/appellant herein being the principal and interest on the amount borrowed by the appellant from the respondent since a sum of Rs. 7,950 was obtained from the respondent herein by the appellant herein on 24.4.1971 at Cuddalore Old Town by executing the suit promissory note agreeing to re pay the said amount with interest at 12 per cent per annum on demand. The appellant herein did not not repay any amount inspite of several demands. A registered notice was issued by the respondent on 4.8.1973 and the appellant herein sent a reply to the said notice containing false allegations. 3. The defendant/appellant contended in his written statement as follows:—The suit claim is not true or just and the plaintiff is not entitled to any relief. The suit promissory note is not supported by any consideration. As the plaintiff has been staying in Singapore for the last several decades he required the assistance of the defendant for purchasing a house in Cuddalore O.T. and he also requested the defendant to manage his boat C.U. No. 321 and agreed to remunerate the defendant appropriately at an average of Rs. 50 per month and the plaintiff was sending money to the defendant which he was utilising for the plaintiffs benefit and the defendant has been attending to the affairs of the plaintiff from about 1961 and that when the plaintiff came to India in or about the last week of March, 1971 he asked the defendant to execute a promissory note in his favour for Rs. 7,950 and the defendant was not agreeable for this course and said that the accounts can be looked into and the amount that may be due to the plaintiff can be found out and that the plaintiff suggested that as he was going to Singapore immediately the accounts might be looked into later when he returned and bona fide believing the representation the defendant executed the promissory note and no amount was paid to him on 24.4.1971. The defendant also has pleaded that the plaintiff did not act fairly and honestly and he did not care to scrutinise the accounts and find out the exact amount that is due by the defendant and instead he issued a notice claiming the sum of Rs. 7,950 as stated in the promissory note and that the defendant is even now willing to pay the amount that may be due after the accounts are scrutinised and that he is liable to pay only Rs. 6,444.56 as per the accounts and he is entitled to the benefits of the Act 38/1972 and the interest can be calculated only at 9% per annum from 1.7.1972 and therefore the suit may be decreed for Rs. 6,444.55 on admission scale. 4. Subsequently, the defendant/appellant herein filed an amendment petition and amended the sum of Rs. 6,444.56 he originally admitted in paragraph 4 of the written statement and substituted the same with Rs. 3,617.98. 5. The plaintiff/respondent herein filed a reply statement denying the allegations made by the defendant/appellant both in his original written statement as well as the written statement as amended by him and contending that the defendant did not do any work for the plaintiffs benefit or manage his boat and no amounts were sent by the plaintiff to the defendant and that for the amounts received by him in cash as loans, the defendant executed the suit promissory note and it is an unconditional promise and the suit has to be decreed as prayed for. 6. The defendant/appellant herein also filed an additional written statement contending that he is entitled to the benefits of the Tamil Nadu Ordinance 1/1975 when it was promulgated and the suits should be stayed. 7. On the above pleadings, the following issues were framed for trial by the lower court:— “Whether the pronote is not supported by consideration to the extent of Rs. 1,505.44? 2. 7. On the above pleadings, the following issues were framed for trial by the lower court:— “Whether the pronote is not supported by consideration to the extent of Rs. 1,505.44? 2. Whether the defendant is not entitled to the benefits of Act 38/1972? 3. To what relief, is the plaintiff entitled?” The following additional issues were framed by the lower court respectively on 18.2.1975 and 29.3.1975: “1. Whether the defendant is liable to pay only Rs. 3,617.98?” “1. Whether the defendant is an agriculturist entitled to the benefits of the Act 10 1975?” 8. Before the Lower Court, the plaintiff Kannappa Pillai examined himself as P.W.1. Ex.A1 promissory note dated 24.4.1971 executed by the defendant to plaintiff for Rs. 7,950. Ex. A2 office copy of the lawyers notice dated 4.8.1973 sent by the plaintiff to the defendant and Ex.A3 reply notice dated 12.8.1973 sent by the defendants counsel to the plaintiffs counsel were marked on the side of the plaintiff. The defendant Balakrishna Pillai examined himself as D.W.1. D.W.2 Annamalai Chettiar and D.W.3 Ponnurangam were also examined on the side of the defendant, Ex.B1 entries in the account book showing the transaction in respect of boat CU.231 for the period from 18.8.1969 to 10.10.1969, Ex.B2, accounts showing the receipts and expenditure incurred by the defendant on behalf of the plaintiff for the period from 22.2.1969 to 31.8.1969, Ex.B3 pocket note book showing the receipt of house rent between the plaintiff and the defendant for the period from 3.12.1968 to 21.10.1969 and Ex.B4 pocket note book of the defendant were marked on the side of the defendant. 9. On a consideration of the evidence both oral and documentary, the trial court held under Issue No. 1 that the said issue did not arise in the suit and therefore, it was deleted. Under the additional issue framed on 18.2.1975 and issue No. 2, the trial Court came to the conclusion that when the execution of the suit promissory note had been admitted, the burden is on the appellant to prove that it was executed in the circumstances mentioned by him in the written statement, namely as security, and that he is liable to pay only a sum of Rs. 3,617.98P. and that the appellant has failed to prove the above plea. 3,617.98P. and that the appellant has failed to prove the above plea. The trial court also held that the appellants plea in the written statement is not substantial evidence and as such, the appellant has not stated in his evidence that he is entitled to the benefits of Tamil Nadu Debt Relief Act, 1972 (Tamil Nadu Act 38 of 1972) and that the debt should be scaled down as per that Act. The Trial Court, therefore, held that the appellant is not entitled to the benefit of Tamil Nadu Act 38 of 1972. Under Issue No 3 the Trial Court, in view of its findings on the other issues and on the evidence of P.W.1, found that the suit promissory note is true, valid and supported by consideration and that the appellant is liable as claimed in the plaint. In the result, the suit was decreed as prayed for by the respondent. Aggrieved by the above decision of the trial court, the defendant has come forward with this appeal. 10. Mr. Yamunan, learned counsel for the appellant contends that the court below has failed to apply the correct legal principles regarding the burden of proof and the nature of the presumption arising in respect of the consideration with reference to negotiable instruments and, as such the judgment and decree are liable to be set aside. It is also pointed out on behalf of the appellant that the trial Court erred in not properly appreciating the evidence of the appellant and his witnesses, D.Ws. 2 and 3, with reference to the execution of the promissory note and the passing of the consideration. It is also contended on behalf of the appellant that the trial court erred in rejecting Exs. B1 to B4, account books filed by the appellant for proving that there were earlier transactions between the appellant and the respondent regarding the management of the boat and the house property belonging to the respondent and that it is only in connection therewith, the promissory note was executed. According to the learned counsel for the appellant, the contents of Ex. A1 had not been properly appreciated by the trial Court. According to the learned counsel for the appellant, the contents of Ex. A1 had not been properly appreciated by the trial Court. Learned counsel for the respondent submits that the trial Court had properly appreciated the evidence, both oral and documentary and has come to a correct conclusion and, therefore, there is absolutely no ground for reversing the judgment and decree of the trial court. 11. The points that arise for consideration in the appeal are:— 1. Whether the promissory note is not supported by consideration to the extent of Rs. 1,505.44P? and, 2. Whether the appellant is liable to pay only a sum of Rs. 3,617.98 P? 12. The only question that has to be resolved in this Appeal is whether the appellant is liable to pay only a sum of Rs. 3,617-98p., with reference to the suit promissory note to the respondent. The respondent claims the money due under the suit promissory note, Exhibit A1, which has been admittedly executed by the appellant on 24.4.1971 for Rs. 7,950 in favour of the respondent. The case of the appellant is that the suit promissory note is not supported by consideration to the extent it bears. As per the amended written statement, the appellant admits liability for a sum of Rs. 3,617.98p. and interest thereon at 9 per cent per annum from 1.7.1972 as he is entitled to the benefits of Tamil Nadu Debt Relief Act (38 of 1972). The contention raised in the written statement amounts to the plea that the appellant executed the suit promissory note as a security. According to the averment under the written statement, the respondent has been staying in Singapore for several decades and he required the assistance of the appellant for purchasing a house at Cuddalore O.T. and also for management of his boat and agreed to remunerate the appellant at an average of Rs. 50 per month and the respondent was sending moneys to the appellant which he was utilising for the respondents benefit and the appellant had been attending to the affairs of the respondent from 1961 and when the respondent came to India in or about the last week of March 1971, he demanded the appellant to execute a promissory note in his favour for Rs. 7,950 and the appellant was not agreeable for the said course and said that the accounts should be looked into and the amount that might be actually due to the respondent should be found out and that the respondent represented that as he was going to Singapore immediately, the accounts should be looked into immediately and later, the amounts would be settled and therefore, bona fide believing the representation of the respondent, the appellant executed the promissory note and that no amount was paid to him on 24.4.1971. The appellant originally pleaded that as per his accounts he is liable to pay only a sum of Rs. 6,444.56p. and subsequently amended that figure to Rs. 3,617.98 p. and also pleaded that he is entitled to the benefits of Tamil Nadu Act 38 of 1972. Exs.A1 reads as follows:— Tamil 13. The plaintiff/respondent herein claims the money due under the suit promissory note, Ex.A1 which has been admittedly executed by the defendant/appellant herein on 24.4.1971 for a sum of Rs. 7,950 in favour of the plaintiff/respondent herein. The case of the defendant/appellant is that the suit promissory note is not supported by consideration to the extent it bears. As per the amended written statement, the defendant/appellant herein admits liability for a sum of Rs. 3,617.98 and the interest thereon at 9 per annum from 1st July, 1972 as he is entitled to the benefits of the Tamil Nadu Act 38 of 1972. The contention raised in the written statement in paragraphs 2 and 3 amounts to the plea that the defendants/appellant herein executed the suit promissory note as a security. According to the averment in the written statement the plaintiff has been staying in Singapore for several decades and he required the assistance of the defendant/appellant herein for purchasing a house at Cuddalore Old Town and also for the management of his boat C.U. No. 321, and agreed to remunerate the defendant/appellant herein at an average of Rs. 50 a month, and the plaintiff/respondent herein was sending moneys to the defendant/appellant herein which he was utilising for the plaintiff respondents benefit and the defendant/appellant has been attending to the affairs of the plaintiff/respondent from about 1961 and when the plaintiff came to India in or about the last week of March, 1971, he demanded the defendant/appellant to execute a promissory note in his favour for Rs. 7,950 and the defendant wanted that the accounts should be looked into and the amount actually due to the plaintiff/respondent should be found out and that the plaintiff represented that as he was going to Singapore immediately the amounts could be settled later, and therefore bona fide believing the representation of the plaintiff/respondent herein, the defendant/appellant herein executed the suit promissory note and no amount was paid to him on 24.4.1971. The defendant/appellant herein originally pleaded that as per his accounts he liable to pay Rs. 6,444.56 and subsequently amended that amount as Rs. 3,617.98 and also pleads that he is entitled to the benefits of the Tamil Nadu Act 38 of 1972. 14. Ex.A1 promissory note reads that the consideration of Rs. 7,950 consisted of the moneys received by the defendant/appellant herein from the plaintiff/respondent herein previously on several occasions for meeting his family expenses and for repairing his house. It is a well established principle of law that a promissory note can be executed for the moneys already received, and it is a proper consideration. Ex.A1 does not say that on the date of the promissory note the defendant/appellant therein received the cash consideration of Rs. 7,950. So, the evidence let in by the appellant by examining the scribe of Ex.A1 as D.W.2 has no significance. D.W.2 who is the scribe of Ex.A1 has stated that the plaintiff/respondent herein came to his house and got the promissory note written by him, and he did not see the execution of the promissory note by the defendant/appellant herein or attestation of the same by witnesses. A careful scrutiny of the contents of Ex.A1 promissory note shows that D.W.2 has signed Ex.A1 only as a writer, and not as the writer and attestor. So nothing turns out on the evidence of D.W.2 that he did not see either the defendant/appellant receiving the sum of Rs. 7,950 or his executing the suit promissory note or attestation of the same by witnesses. But D.W.2 has admitted in his cross-examination that a year after writing Ex.A1, he met the defendant/appellant and the defendant/appellant told him that he executed the suit promissory note for a sum of Rs. 7,950 after settling the account with the plaintiff/respondent. So, the evidence of D.W.2 does not help the defendant/appellant in any way. 15. Mr. But D.W.2 has admitted in his cross-examination that a year after writing Ex.A1, he met the defendant/appellant and the defendant/appellant told him that he executed the suit promissory note for a sum of Rs. 7,950 after settling the account with the plaintiff/respondent. So, the evidence of D.W.2 does not help the defendant/appellant in any way. 15. Mr. K. Yamunan, learned counsel for the defendant/appellant submits that so far as the suit promissory note is concerned, there was no payment on the date of the execution by the respondent/plaintiff to the defendant/appellant and as such the onus of proof regarding the actual payment of consideration shifted to the plaintiff and that the plaintiff has not discharged the same. It is further contended by Mr. K. Yamunan, the learned counsel for the appellant that the court below erred in not properly appreciating the evidence of the appellant and D.Ws.2 and 3 with respect to the execution of the promissory note and passing of the consideration. It is further submitted on behalf of the appellant that the court below erred in rejecting Exs. B1 to B4, the account book filed by the defendant for proving that there were earlier transactions between the plaintiff and the defendant regarding the management of the Boat and the house property belonging to the plaintiff and it is only in connection therewith the promissory note as executed. It is pointed out that even as per the recitals in Ex.A1 the promissory note the consideration was not paid, and, under these circumstances, the court below should have dismissed the case of the respondent herein. 16. In support of his contention, Mr. K. Yamunan, learned counsel for the defendant-appellant referred, to the decisions in Kundanlal v. Custodian, Evacuee Property 1, Upagara Marie Andre, rep. by Power of Attorney v. Samaraj 2, Mallavaropu Narasamma and others v. Boggavarapa Bulli Veerraju 3, Bishambur Das v. Ismail and others 4, Mr. R.S. Venkatachari, learned counsel for the plaintiff/respondent, referred to the decisions reported in Manyam Janakalakshmi v. Manyam Madhava Rao and others 5, Taramahomed v. Tyeb 6, C.M. Sivaram v. V.S. Jayaram Mudaliyar 7, Heera Chand v. Jeevraj 8, Bhakthavatsalam v. Muthunara Reddiar 9, Thirunavukarasu Mudaliar C.S. Rajan and Co. R.S. Venkatachari, learned counsel for the plaintiff/respondent, referred to the decisions reported in Manyam Janakalakshmi v. Manyam Madhava Rao and others 5, Taramahomed v. Tyeb 6, C.M. Sivaram v. V.S. Jayaram Mudaliyar 7, Heera Chand v. Jeevraj 8, Bhakthavatsalam v. Muthunara Reddiar 9, Thirunavukarasu Mudaliar C.S. Rajan and Co. 10, The(sic) 11?, Official Receiver, Kanpur and another v. Abdul Shakoor and others 12, Jose Inacio Lourenco Xec v. Hamya and another 13, Thirumalai Iyengar v. Subba Raja 14, S. Perumal Chettiar v. T. Santhanam 15, Kadir Moideen Rowther and others v. Asiaru 16, Taramahomed v. Tyeb 16, Alex Mathew v. Philip Philip 17, Abdul Shakur v. Kotwaleshwar 18, Raghavan Thampi v. Janaki Amma 19, Bent Madhab Nath and others v. Jayandra Nath Barman and another 20, Chandan Lal v. M/s. Amin Chand Mohan Lal 21, R. Shanmuga Rejeswara Sethupathi v. Chidambaram Chethiar and others 22, Mahant Shri Srinivas Ramanuj Das v. Surjanareyan Das and another 23. 17. Mr. K. Yamunan, learned counsel for the appellant refers to the decision in Kundan Lal v. Custodian, Evacuee Property 1, with reference to the scope of S.118 of the Negotiable Instruments Act, 1881 and S.114 of the Evidence Act. The following is the proposition laid down in that case. “S.118 lays down a special rule of evidence applicable to negotiable instruments. The presumption is one of law and thereunder a court shall presume, inter alia, that the negotiable instrument or the endorsement was made or endorsed for consideration. In effect it throws the burden of proof of failure of consideration on the maker of the note or the endorser, as the case may be. The phrase “burden of proof” has two meanings-one, the burden of proof as a batter of law and pleading and the other the burden of establishing a case; the former is fixed as a question of law on the basis of the pleadings and is unchanged during the entire trial, whereas the latter is not constant but shifts as soon as a, “Party adduces sufficient evidence to raise a presumption in his favour. The evidence required to shift the burden need not necessarily be direct evidence i.e., oral or documentary evidence or admissions made by opposite party; it may comprise of circumstantial evidence or presumptions of law or fact. The evidence required to shift the burden need not necessarily be direct evidence i.e., oral or documentary evidence or admissions made by opposite party; it may comprise of circumstantial evidence or presumptions of law or fact. A plaintiff who says that he had sold certain goods to the defendant and that a promissory note was executed as consideration for the goods and that he is in possession of the relevant account books to show that he was in possession of goods sold and that the sale was effected for a particular consideration should produce the said account books. If such a relevant evidence is withheld by the plaintiff, S. 114 Evidence Act enables the court to draw a presumption to the effect that, if produced, the said accounts would be unfavourable to the plaintiff. This presumption, if raised by a court, can under circumstances rebut the presumption of law raised under S.118 of the Negotiable Instruments Act”. 18. The Supreme Court has observed at page 1318, in paragraph 5 of the decision in Kundan Lal v. Custodian: Evacuee Property 1 as follows:— “This Section lays dawn a special rule of evidence applicable to negotiable instruments. The presumption is one of law and thereunder a court shall presume, inter alia, that the negotiable instrument or the endorsement was made or endorsed for consideration. In effect it throws the burden of proof of failure of consideration on the maker of the note or the endorser, as the case may be. The question is, how the burden can be discharged? The rules of evidence pertaining to burden of proof are embodied in Chapter VII of the Evidence Act. The phrase “burden of proof” has two meanings one the burden of proof as a matter of law and pleading and the other the burden of establishing a case, the former is fixed as a question of law, on the basis of the Pleadings and is unchanged during “the entire trial, whereas the latter is not constant but shifts as soon as a party adduces sufficient evidence to raise a presumption in his favour. The evidence required to shift the burden need not necessarily be direct evidence, i.e., oral or documentary evidence or admissions made by opposite party; it may comprise of circumstantial evidence or presumption of law or fact. The evidence required to shift the burden need not necessarily be direct evidence, i.e., oral or documentary evidence or admissions made by opposite party; it may comprise of circumstantial evidence or presumption of law or fact. To illustrate how this doctrine works in practice, we may take a suit on a promissory note. Under S.101 of the Evidence Act, “Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of fact which he asserts, must prove that those fact exist”. Therefore, the burden initially rests on the plaintiff who has to prove that the promissory note was executed by the defendant. As soon as the execution of the Promissory note is proved the rule of presumption laid down in S.118 of the Negotiable Instruments Act helps him to shift the burden to the other side. The burden of proof as a question of law, rests, therefore, on the plaintiff, but as soon as the execution is proved S.116 of the Negotiable Instruments Act imposes a duty on the Court to raise a presumption in his favour that the said instrument was made for consideration. This presumption shifts the burden of proof in the second sense, that is the burden of establishing a case shifts to the defendant. The defendant may adduce direct evidence to prove that the promissory note was not supported by consideration, and if he adduced acceptable evidence, the’ burden again shifts to the plaintiff, and so on. The defendant may also rely upon circumstantial evidence and if the circumstances so relied upon are compelling, the burden may likewise shift again to the plaintiff. He may also rely upon presumptions of fact, for instance those mentioned in S.114 and other sections of the Evidence Act. 19. Under S.114 of the Evidence Act, “The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.” Illustration (g) to that Section shows that the court may presume that evidence which could be and is not produced would, if produced be unfavourable to the person who with holds it. A plaintiff who says that he had sold certain goods to the defendant and that a promissory note was executed as consideration for the goods and that he is in possession of the relevant account books to show that he was in possession of the goods sold and that the sale was effected for a particular consideration, should produce the said account books, for he is in possession of the same and the defendant certainly cannot be expected to produce his documents. In those circumstances if such a relevant evidence is with-held by the plaintiff, S.114 enables the Court to draw a presumption to the effect that, if produced, the said accounts would be unfavourable to the plaintiff. This presumption, if raised by a court can under certain circumstances rebut the presumption of law raised under S.118 of the Negotiable Instruments Act. Briefly stated, the burden of proof may be shifted by presumptions of law or fact, and presumptions of law or presumptions of fact may be rebutted not only by direct or circumstantial evidence but also by presumptions of law or fact. We are not concerned here with irrebuttable presumptions of law. 19. The Privy Counsel in Murugesam Pillai v. Gnana Sambandhi Pandara Sannadhi 1, observed as follows:— “A practice has grown up in Indian procedure of those in possession of important documents or information lying by, trusting to the abstract doctrine of the onus of proof, and failing, accordingly, to furnish to the Courts the best material for its decision. With regard to third parries this may be right enough as they have no responsibility for the conduct of the suit; but with regard to the parties to the suit it is in their Lordships opinion, an inversion of sound practice for those desiring to rely upon a certain state of the facts to withhold from the Court the written evidence in their possession which would throw list upon the proposition.” 20. The same rule was re-affirmed in Rameshwar Singh v. Bajit Lal 2, and was approved by the Supreme Court in Hiralal v. Badkulal 3. The same rule was re-affirmed in Rameshwar Singh v. Bajit Lal 2, and was approved by the Supreme Court in Hiralal v. Badkulal 3. We find that the above three decisions, namely, Kundan Lal v. Custodian, Evacuee Property 4, Rameshwar Singh v. Bajit Lal 2 and Hiralal v. Badkulal 3, lay down that it is the duty of a party to a suit in possession of important documents to produce them in court, and if that duty is not discharged the court may be well draw the presumption which it is entitled to do under S.114 of the Evidence Act. A division bench of the Madras High Court in Narayanan Rao v. Venkatapayya 5, considered the interaction of the provisions of S.118 of the Negotiable Instruments Act and S.114 of the Evidence Act in the matter of rebuttal of the presumption under the former section. After considering the earlier decisions, including those of the Privy Council, Varadachariar, J. summarized the law at page 311 of I.L.R. Mado (at page 187 of A.I.R.) thus:— “It has to be borne in mind that, when evidence has been adduced on both sides, the question of onus is a material or deciding factor only in exceptional circumstances, of Yellappa Ramappa Naik v. Tippanna 6, and that even the onus under S.118 of the Negotiable Instruments Act need not always be discharged by direct evidence adduced by the defendant; Muhammad Shafi Khan v. Muhammad Moazzam ali Khan 7, Singar Kunwar v. Basdeo Prasad 1, and Bishambar Das v. Ismail 2. Not merely can the Court base its conclusion on the effect of the evidence taken as a whole but it may also draw adverse inferences against a party who being in a position to adduce better evidence deliberately abstains from doing so. (Vide Murugesam Pillai v. Gnana Sambandha Pandara Sannadhi 3, Gurusami Nadar v. Gopalaswami Odayar 4, and Raghavendra Rao v. Venkataswami Naicken 5. 21. In Kundan Lal v. Custodian, Evacuee Property 6, the Supreme Court observed as follows:— “It cannot be denied that prima facie a negotiable instrument which had been endorsed shall be taken to have been drawn for consideration. But if there is evidence to prove that there was no consideration for the endorsement then there can be no presumption to that effect. But if there is evidence to prove that there was no consideration for the endorsement then there can be no presumption to that effect. As I have set out above the evidence and the circumstances of the case negative the fact that the promissory note was endorsed for consideration”. 22. In Sethupathi v. Chidambaram 7, it was held that where a promissory note has been given, consideration is to be presumed and the burden to prove that there was no consideration for the promissory note is upon the executant. Sir George Rankin in the above decision observed at page. 125 as follows.— “A Promissory note having been given, consideration is to be presumed. The question is not therefore whether the plaintiff has formally and sufficiently proved that there was a stipulation for fresh advance, but whether it is sufficiently shown by the appellant that there was no consideration for the promissory note. This burden, the appellant has certainly not discharged, and there is every possibility against him on the point. It is not necessary therefore for their Lordships to decide whether under Cl.3 of S.25 above mentioned a debt of which the creditor might have enforced payment from the mortgagor would be excluded by the circumstance that it was not a debt of his own. Their Lordships must not be taken to cast doubt upon the view taken by the High Court if this question, which does not arise, is not now discussed. Their Lordships are satisfied that the principal amount due on the bonds in suit is Rs. 1,30,000 as decreed by the Indian Courts.” 23. In Narasamma v. Veerraju 8, it was held in dealing with rebuttable presumptions, the Court is often obliged to rely more upon circumstances that upon direct or definite evidence negativing the fact presumed. The difference between S.114, Evidence Act, and S.118, Negotiable Instruments Act, consists only in this: that under the first the Court has a discretion to make the presumption or not, whereas under the Second, the Court is bound to start with the presumption but once the presumption is made, there is no difference between the two cases, in the matter of displacing the presumption or disproving the “presumed” fact. Any presumption as to quantum of consideration, as distinguished from the mere existence of consideration has to be drawn, not by virtue of S.114, Evidence Act, but only from the recitals, if any, that the instrument may contain. As to such recitals being prima facie evidence against the parties to the instrument, they may operate to shift on to the party pleading the contrary, the burden of rebutting the infer ence raised by them. But the weight due to recitals may vary according to circumstances; the burden of rebutting them may become very light, especially when the Court is not satisfied that the transaction was honest and bona fide. The explanation added to illustration (c) of Section 114, Evidence Act, only indicates the principle and is not meant to be exhaustive of its application. The operation is not necessarily limited to cases where the borrower has a vested right in property as distinguished from a mere spes. The presumed or proved necessity of the borrower and the inequality of position between the lender and the borrower constitute the reason of the rule. If such considerations can justify the Court in refusing to draw the presumption they must equally operate to help to rebute the presumption drawn under S.118, Negotiable Instruments Act. The question of onus is of subordinate importance in an appeal when both sides have let in evidence and the appellate Court has to come to a conclusion on the whole evidence. Even in suits on Negotiable Instruments, the debtor can press into his service, facts and circumstances disclosed by the Plaintiffs evidence. 24. Varadachariar, J. in the decision in Narasamma v. Veerraju 1, observed as follows: “There is no reason to think that S.118 of the Indian Act lays down any thing more than this. Neither the earlier case law nor the language of the section 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; S.6 Mad. 351 (11) at p. 353. In ACL. 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; S.6 Mad. 351 (11) at p. 353. In ACL. (a), S.118, the same language covers cases both of “making or drawing” and of “negotiation” and in the latter case, the presumption can only be of a transfer for value and not in favour of any particular amount as “consideration” for the transfer. It may also be noticed in passing that in illustration (c) to See.114, Evidence Act, the Presumption is only stated to be that the bill was accepted or endorsed “for good consideration”. “As a corollary to the above rule, of pleading it was recognised in England that it is not enough in the plea of want of consideration merely to say that the defendant never had any value or consideration the plea must go on to aver the circumstances which show that there was no consideration; 138 E.R.565 (9)”. In Byles on Bills (at P.125) the rule is stated in the following terms; Consideration is presumed until the contrary appears or at least appears probable (the italics are ours.) 27. The expression “until the contrary is proved” in S.118, Indian Negotiable Instruments Act, must also be read in this expanded sense, having regard to the definitions of the word “disproved” and of the expression “shall presume” in S.3 and 4 Evidence Act. The difference between S.114, Evidence Act, and S.118, Negotiable Instruments Act, consists only in this; that under the first the Court has a discretion to make the presumption or not, whereas under the second the Court is bound to start with presumption, but once the presumption is made, there is no difference between the two cases, in the manner of displacing the presumption of disproving the “presumed” fact. “Any presumption as to quantum of consideration as distinguished from the mere existence of consideration, has to be drawn, not by virtue of S.118, Negotiable Instruments Act or even under S.114, Evidence Act, but only from the recitals, if any, that the instrument may contain. “Any presumption as to quantum of consideration as distinguished from the mere existence of consideration, has to be drawn, not by virtue of S.118, Negotiable Instruments Act or even under S.114, Evidence Act, but only from the recitals, if any, that the instrument may contain. As to such recitals, it has long been established that being prima facie evidence against the parties to the instrument, they may operate to shift on to the party pleading the contrary, the burden of rebutting the inference raised by them, see 2 M H.C.R. 174 (12). But the weight due to recitals may vary according to circumstances and, in particular circumstances, the burden of rebutting them may become very light, especially when the Court is not satisfied that the transaction was honest and bona fide; see 6 Cal. 268(13) at pp.277 and 278 see also 28 I.C. 402(14).” “In applying the principles above adverted to, courts have in course of time come to regard certain types of cases as specially calling for scrutiny from the debtors point of view. It is immaterial whether or not “fraud” in the sense of “deceit” or “undue influence” as defined in S.16. Contract Act, is made out the grounds in favour of a wide exercise or equitable jurisdiction in certain types of cases were explained by Lord Hardwicke in 2 V.S. 125 at p. 155; see also Sturys Equity, S.348. One of these well known types is represented by the category of transactions between money lenders and expectant heirs; As early as in 2 Atk. 39, the reason of the rule governing such cases was stated to be the “necessity” that young heirs are in, for the most part, which naturally lays them open to imposition; and in (1877) 2 A.C. 814 it was pointed out that in such cases the parties do not really meet on equal terms and the opportunity for the one party to take advantage of the weakness or necessity of the other, raises a presumption of “fraud” in the sense of improper use of the power arising out of the circumstances. In 7 H.L.C. 750 at p. 771, Lord Cranworth strongly condemned the practice of getting hold of a young man of fortune, supplying him with means and pandering to his extravagance. In 7 H.L.C. 750 at p. 771, Lord Cranworth strongly condemned the practice of getting hold of a young man of fortune, supplying him with means and pandering to his extravagance. The young man who has gone through a course of wilful and culpable folly and extravagance is, in such cases, relieved from its consequences, not because he has any “merits of his own to plead” but that “there is a principle of public policy in restraining” such conduct on the part of lenders, that this system of undermining and blasting, as it were, in the bud, the fortunes of families is a public as well as a private mischief; per Lord Selbourne in 8 Ch. 484 “Considerations like these adverted to above have led the Indian Legislature to add to Illustration (c)of S.114 Evidence Act an explanation stating that, in deciding whether the presumption in favour of consideration is to be drawn or not, the Court shall have regard to the fact that the drawer of the bill of exchange was a man of business and the acceptor a young and ignorant person under his influence. The explanation only indicates the principle and is not meant to be exhaustive of its application. Its operation is not necessarily limited to cases where the creditor is a professional money lender or excluded in right in property as distinguished from a mere spes. The presumed or proved necessity of the borrower and the inequality of position between the lender and the borrower constitute the reason of the rule. If such consideration can justify the court in refusing to draw the presumption they must equally operate to help to rebut the presumption drawn under S.118, Negotiable Instruments Act”. 25. In Bishambar Das v. Ismai 1 was held that where defendants plead want of consideration in a suit on a promissory note, in discharging the burden of proof it is not always necessary for them to prove want of consideration by producing definite evidence on their own behalf. It is open to them to rely upon the facts and circumstances of the case and also to refer to the false in the evidence of the plaintiff himself and then to argue that, on the record of the case as it stands, the burden has been discharged by them. It is open to them to rely upon the facts and circumstances of the case and also to refer to the false in the evidence of the plaintiff himself and then to argue that, on the record of the case as it stands, the burden has been discharged by them. Whether a party had discharged the burden of proof laid upon him is a question for the Court to decide and each case depends upon its own peculiar facts, and circumstances. 26. S 114 of the Negotiable Instruments Act 1881 reads as follows:— “114. Right of payer of honour—Any person so paying is entitled to all the rights, in respect of the bill of the holder at the time of such payment, and may recover from the party for whose honour he pays all sums so paid, with interest thereon and with all expenses properly incurred in making such payment”. S.118 of the Negotiable Instruments Act, 1881 runs as follows:— “118. Presumption as to negotiable Instruments—Until the contrary is proved, the following presumption shall be made. (a) of consideration: that every negotiable instrument was made or drawn for consideration and that every such instrument, when it has been accepted, endorsed, negotiated or transferred, was accepted, endorsed negotiated or transferred for consideration. (b) as to date: that every negotiable instrument bearing a date was made or drawn on such date; (c) as time of acceptance: that every accepted bill of exchange was accepted within reasonable time after its date before its maturity; (d) as to time of transfer: that every transfer of negotiable instrument was made before its maturity. (e) as to order of endorsements: that the endorsements appearing upon a negotiable instrument were made in the order in which they appear thereon. (f) As to stamp: that a lost promissory note, bill of exchange or cheque was duly stamped; (g) that holder is a holder in due course: that the holder of a negotiable instrument is a holder in due course; provided that where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving that holder is a holder in due course lies upon him.” 28. - The following passage at pages 691, 692 and 693 of the Negotiable Instruments, 1886 (26 of 1881) by Bashyam and Adiga, 14th Edition, is relied on by Mr. K. Yamunan, learned counsel for the appellant. “The question whether a statutory presumption is rebutted by the rest of the evidence is a question of fact (vide Wali Mohammad v. Muhammad Bash 1. Under this section, the presumption is not left to the discretion of the court; and in every suit on negotiable instruments, the court shall presume that such instruments were made, drawn, accepted or negotiated for consideration, so much so it was held, that where the lower court ignored the presumption and found that the document was not supported by consideration the decision regarding consideration was vitiated (vide Lakshmi Das v. Lakeo Ram 2). This throws the burden of proving failure of consideration on the maker of the note vide Sethupathi v. Chidambaram 3, and the burden is not shifted by the mere fact that consideration or part of it is shown not to have been paid in cash as stated in the note (vide Shambu v. Lallu Mal 4 nor can a suit be dismissed on that ground alone (vide Barhamdeo Singh v. Kari Singh 5. Where parties went to evidence as to consideration and the Court disbelieved the plaintiffs case, the presumption as to consideration could not avail the plaintiff in revision from the judgment (vide In re Kannusami 6. It cannot be contended as recited in the instrument (vide Ramani Mohan v. Suriya Kumar 7. But, wherein a suit to recover money on a note which stated that the amount was borrowed in cash, and where the plaintiff alleged the same, but whereafter the defendants denial of any portion of the alleged consideration, the plaintiff stated that the consideration was a release of certain proprietary rights to the defendant, it was held that the initial presumption of consideration had been rebutted, and that the onus had been shifted on to the plaintiff to prove consideration (vide Zohra Jan v. Rajan Bibi 8 ). Thus, it may be said that where the recital of the consideration in the promissory note is admittedly false, the presumption is displaced, and the burden of proving consideration is shifted on to the holder of the promissory note as against the maker of the note himself; and much stronger therefore would be the case when the consideration has to be proved against third parties (vide Palaniappa v. Rajagopala 1. But a contrary view has been taken in the following cases, namely, Tajmahomed Haji Abdul v. Tyeb Ebrahim 2, Parasram & Co. v. Thaker 3, Kuhnikalandar v. Abdulkhader 4, and there is a conflict of judicial opinion on this question. The difference of opinion consists in this viz., where the plaintiff sues on a promissory note or hundi and the actual consideration recited in the document sued on and the consideration alleged in the plaint differ whether the plaintiff is entitled to rely on this sub-section. One view is that the presumption will nevertheless apply and the other view is the plaintiff cannot in such a case rely upon the statutory presumption. The former view is best expounded by Chagla, CJ. in the case reported in Taj Mohammed v. Tyed Ebrahlm 2. According to the learned Chief Justice the language of S.118(a) clearly shows that consideration set up in the plaint being different from that set out in the document is of no consequence. For according to the learned Chief Justice emphasis must be laid upon the following words, viz., “ that every negotiable instrument was made or drawn for consideration ”. And the learned Chief Justice proceeds to say at page 258. “The presumption that is raised under S.118 is not in respect of consideration mentioned in the Negotiable Instrument. The presumption is in favour of there being a consideration for the negotiable instrument and consideration which is a valid consideration in law”. Mr. And the learned Chief Justice proceeds to say at page 258. “The presumption that is raised under S.118 is not in respect of consideration mentioned in the Negotiable Instrument. The presumption is in favour of there being a consideration for the negotiable instrument and consideration which is a valid consideration in law”. Mr. K. Yamunan, learned counsel for the defendant/appellant, also refers to the decision in Perumal Chettlar v. Santhanam 5 for the proposition that though the question whether a statutory presumption is rebutted by the rest of the evidence is a question of fact, the presumption is not left to the discretion of the Court, and in every suit on a negotiable instrument, the court shall presume that such instruments were made, drawn, accepted or negotiated for consideration, so much so, it has been held that where the lower Court ignored the presumption and found that the instrument was not supported by consideration, the decision regarding consideration, was vitiated. In that case, when the execution of the promissory note was admitted, a presumption was raised in favour of the plaintiff that the said instrument was made for consideration, and when the presumption was raised, it had the effect of shifting the burden on to the defendant to establish that there was no consideration. The defendant had not satisfied the court that there was no consideration whatever with reference to the promissory note sued on because it was his admission even in the written statement that the promissory note represented the interest due on the mortgages admittedly executed by him. The mere fact that the mortgages were not produced before the court would not make any difference nor would it detract from the effect of admission made by the defendant in the written statement. In this view, it may be said that even the burden which shifted on to the defendant was not discharged by him in view of the clear and careful admission made by him. But, even otherwise, if the defendant bad established, in this case, that the promissory note was not supported by consideration as recited therein and the burden shifted on to the plaintiff, would it be still open to the plaintiff to recover on the footing that the promissory note is supported by consideration though not necessarily in the shape of the consideration recited in the promissory note? With reference to this, two views have been taken. One is that the presumption regarding consideration under S.118 of the Negotiable Instruments Act is not merely confined to what is mentioned in the negotiable instrument but for any kind of consideration which is valid consideration under law. The other view is where the recital of consideration under the promissory note is admittedly false and not made out, then the presumption under S.118 of the Negotiable Instruments Act is displaced and thereby the burden is shifted to the holder of the promissory note as against the maker of the note himself. 30. In the instant case before, us the pleading in the written statement is that the plaintiff/respondent herein who was staying in Singapore for several decades required the assistance of the defendant/appellant herein for purchasing a house for him at Cuddalore Old Town and for effecting repairs and also for the management of his boat bearing C.U.331 and he also agreed to remunerate the defendant/appellant at an average of Rs. 50 a month and the plaintiff/respondent was Sending moneys to the defendant and the defendant/appellant was attending to the affairs of the plaintiff/respondent from about 1961, and in March, 1971, when the plaintiff/respondent came to India, he asked the defendant/appellant to execute the promissory note for a sum of Rs. 7,950 and when the defendant/appellant insisted for the accounts being looked into and the actual amount due from him to the plaintiff/respondent the plaintiff/respondent told him that he was urgently going to Singapore and the accounts can be looked into later when he returned, and therefore believing the representation of the plaintiff he signed the suit promissory note. But the evidence of the defendant/appellant as D.W.1 as to the circumstances under which he is said to have executed the suit promissory note is different. But the evidence of the defendant/appellant as D.W.1 as to the circumstances under which he is said to have executed the suit promissory note is different. He would say that he purchased a house for the plaintiff/respondent at Cuddalore Old Town and also managed his boat C.U.321 and also the other properties of the plaintiff/respondent and he was giving moneys to the family of the plaintiff/respondent and he was sending accounts to the plaintiff every year and he is also keeping accounts and when the plaintiff/respondent came to India in 1971, he asked him to sign on the promissory note, and when he refused the plaintiff/respondent caught hold of his shirt in the chest and threatened him to sign on the promissory note, and at that time one Narayanaswami came there and they went to the building of the Boat Workers Union and informed Narayanaswami about the affair and as the plaintiff/respondent stated that the defendant/appellant need return only the money as found due from him on taking of the accounts and the promissory note was required only as a security, the defendant/appellant signed on the promissory note Ex. A1 believing the representation of the plaintiff/respondent. 31. We have already extracted the contents of Ex.A1 promissory note dated 24.4.1971, in the instant case before us. In the instant case, the suit was preceded by the notice issued by the plaintiff/respondent under the original of Ex.A2 dated 4.8.1973 which reads as follows: “Under instructions from my client, I give you the following notice. 1. That you have executed a promissory note for Rs. 7,950 (Rupees Seven thousand nine hundred and fifty) in favour of my client, having received cash consideration that doing for the same for family expenses and for repairing your family house undertaking to pay principal and interest at the rate of twelve per cent per annum. 2. That my client has demanded you in person for the payment of the amount due under promissory note when he was here about 4 or 5 months back. 3. That you promised to pay him but you are delaying payment. 4. That my client has instructed me to file a suit against you if you do not pay at once. 5. That this is to give you notice that you should send the amount of principal and interest as contracted to the following address “A.P. Kannappan, 5, Enggor Street, Singapore. 4. That my client has instructed me to file a suit against you if you do not pay at once. 5. That this is to give you notice that you should send the amount of principal and interest as contracted to the following address “A.P. Kannappan, 5, Enggor Street, Singapore. 2, immediately or pay the money to me, a suit will be filed against you for the recovery of the amount and you would have to pay also the costs incurred in the cause”. 32. Ex.A3 reply notice dated 12.8.1973 sent by the defendants/appellants counsel to the plaintiffs counsel reads as follows:— “I have been instructed to give you the following reply to your notice dated 4.8.1973 given by you on behalf of A.A. Kannappan Pillai to my client aforesaid, namely:— 1. It is true my client executed the promissory note referred in your notice. But it is not supported by consideration to the entire extent. 2. Your client has been staying in Singapore for the last several decades. Your client required the assistance of my client for purchasing a house door No. 52A in Sankara Naidu Street and effecting repairs. In addition your client also asked my client to manage his boat CU.321. Your client also agreed to remunerate my client appropriately. He agreed to remunerate him at an average of Rs. 50 per month. On that understanding my client rendered your client all the help referred to above. 3. Your client was given moneys to my client which he was utilising for your clients benefit. 4. Your client came here in or about April, 1971. Your client met by my client and asked him to execute a promissory note. Then with the intervention of a third person viz., of Sri R. Ponnurangam, it was found that only Rs. 6,444.56 was due to your client. Then your client suggested that as he was going to Singapore immediately, the accounts might be looked into later when he returned and that my client might execute a promissory note for Rs. 7,950 and that it would have operation only if and when the accounts are settled and also my client will be liable only for the actual amount due. 5. My client is not liable to pay the amount unless accounts are settled and the actual amount payable by my client is ascertained. 6. 7,950 and that it would have operation only if and when the accounts are settled and also my client will be liable only for the actual amount due. 5. My client is not liable to pay the amount unless accounts are settled and the actual amount payable by my client is ascertained. 6. All the allegations in your notice contrary to what is set forth above are false and are hereby denied”. 33. It is relevant to note that there is no reference in the reply notice (Ex.A3) about the alleged threat and coercion said to have been made by the plaintiff/respondent for obtaining the signature of the defendant/appellant on the suit promissory note. But it has only been stated in Ex.A3 that in or about April, 1971, the plaintiff/respondent met the defendant/appellant and asked him to execute the promissory note and at the intervention of a third person viz., one Ponnurangam it was found that only a sum of Rs. 6444-56 was due to the plaintiff/respondent and the plaintiff/respondent suggested as he was going to Singapore immediately, the accounts might be looked into later when he returned and the defendant/appellant might execute a promissory note for Rs. 7,950 and that it would have operation only if and when the accounts were settled, and the defendant/appellant will be liable only for the actual amount due. There is no averment about the threat or coercion said to have been made by the plaintiff/respondent before getting the signature of the defendant/appellant in Ex.A1. It has also been stated in Ex.3 reply notice that in the presence of one R. Ponnurangam, the accounts were looked into and it was found that the defendant/appellant was liable to pay only 6,444-56. Similarly, in the written statement filed by the defendant/appellant, there is no averment that the plaintiff/respondent coerced the defendant/appellant to execute Ex.A1. Similarly, in the written statement as originally filed, the defendant/appellant has stated that he is liable only to pay Rs. 6444-56 as per the accounts. Now the defendant/appellant states that as per his accounts he is liable to pay only Rs. 3,617-98. In support he has filed Exs.B1 to Ex.B4 account books said to have been maintained by him. This Court has perused Ex.B1 to B4 account books and finds that the entries therein do not lead us anywhere, and they do not appear to be regularly kept accounts. 3,617-98. In support he has filed Exs.B1 to Ex.B4 account books said to have been maintained by him. This Court has perused Ex.B1 to B4 account books and finds that the entries therein do not lead us anywhere, and they do not appear to be regularly kept accounts. The defendant/appellant has not explained Ex.B 1 to Ex.B4. From a perusal of Ex.B1 to Ex.B4 it is not possible to find out that as per the accounts, the defendant/appellant is liable to pay only Rs. 3,617-98. The defendant/appellant has not explained these accounts at all. The defendant/appellant has not explained as to how he arrived at a figure Rs. 6,444-56 as the sum payable by him as per the accounts in the written statement originally filed by him or as to how he arrived at the figure Rs. 3,617-98 as amended by him subsequently. 34. The decision in Kadir Moideen v. Asiaru 1, is relied on by the learned counsel for the defendant/appellant, for the proposition that under S.118(a) of the Negotiable Instruments Act, 1881, if the note is genuine, there is a presumption that there has been consideration. Therefore to prove want of consideration lies upon the maker. It is for him to speak the whole truth and show why and how there was no consideration. 35. The decision in Satya Narain Singh v. Janardan Kanth 2, is also relied on for the proposition that S.118 of the Negotiable Instruments Act, 1881 only says “for consideration”, it does not say “consideration as stated in the negotiable instrument”. The words “for consideration” are quite general and they have to be applied in their full literal sense. 36. In Taramahomed v. Tyeb Ebrahim 3 it was held that S.118 of the Negotiable Instruments Act, 1881 raises a statutory presumption in favour of there being consideration for every negotiable instrument. The presumption continues until it is rebutted and the only way it can be rebutted is by proving the contrary, viz., that the negotiable instrument was without consideration. The presumption that is raised under the Section is not in respect of the consideration mentioned in the negotiable instrument but the presumption is in favour of there being a consideration for the negotiable instrument, any consideration which is a valid consideration in law. The presumption that is raised under the Section is not in respect of the consideration mentioned in the negotiable instrument but the presumption is in favour of there being a consideration for the negotiable instrument, any consideration which is a valid consideration in law. It is perfectly true that if a particular consideration is mentioned in a negotiable instrument and that consideration is set up, that is a factor which the court would take into consideration in deciding whether the defendant had discharged the burden cast upon him by S.118. But the mere fact that the consideration mentioned in the negotiable instrument turns out to be wrongly described does not rebut the presumption under S.118 and the burden still lies on the defendant to satisfy the Court that there was no consideration for the instrument. In order to determine whether the contrary is proved or not as required by S.118 the whole volume of evidence led before the court including admissions of the plaintiff made in his cross-examination, must be considered. But in considering the volume of evidence the Court must always bear in mind the statutory presumption and also the fact that the burden of proof lies upon the defendant and that burden has to be discharged by the defendant. Where the plaintiff attempts to prove a particular consideration, the mere fact that he failed to prove such a consideration does not, in any way, relieve the defendant from his obligation in law to establish the contrary of the presumption. 37. The decision in Thirunavukkarasu Mudaliar v. C.S. Rajan and Co., 4 is relied on for the proposition that it is not open to a defendant, in an action on a negotiable instrument to plead that the accounts as between himself and the plaintiff firm ought to be reopened to find whether the consideration recited in the negotiable instrument is correct or not. 38. In the instant case before us, the defendant/appellant has examied one Ponnurangam as D.W.3, D.Wr3 is the person who is said to have mediated at the time when the suit promissory note was executed. But the evidence of D.W.3 would show that he is an interested witness because he acted as the Secretary of the Boat Workers ‘Union at Cuddalore Old Town when the defendant/appellant was acting as the President of that Union. But the evidence of D.W.3 would show that he is an interested witness because he acted as the Secretary of the Boat Workers ‘Union at Cuddalore Old Town when the defendant/appellant was acting as the President of that Union. D.W.3 would say that the defendant/appellant purchased a house for the plaintiff/res pondent at Cuddalore Old Town, and the defendant/appellant also managed the boat of the plaintiff/respondent and also his other properties when the plaintiff/respondent was away at Singapore and the defendant/appellant was also paying moneys for the expenses of the plaintiff/respondents family in India, and that in 1971 when the plaintiff/respondent came to India, the plaintiff and the defendant looked into the accounts between them, and the defendant/appellant produced his accounts, and D.W.3 was with them when the accounts were looked by them and they scrutinised the accounts for two days and as disputes arose between them, the actual amount due from the defendant/appellant was not fixed and the scrutiny abruptly ended on the second day. D.W.3 has only deposed about the particulars of the transaction. It is relevant in this connection to note that in the instant case, the case put forward by the defendant/appellant in his written statement is that D.W.3 was present when the respondent/plaintiff obtained the signature of the defendant/appellant in the suit promissory note on 24.4.1971. But D.W.3 did not state anything about the execution of the suit promissory note. Thus, we find that the evidence of D.W.3 Ponnurangam is of no help to the appellant. 39. Mr. R.S. Venkatachari, learned counsel for the Plaintiff/respondent, refers to the decision in M. Janakalakshmi v. Madhava Rao 1, for the proposition that where in a suit based on negotiable instrument the defendant fails to discharge the burden that there was no consideration, the plaintiff is entitled to a decree notwithstanding that his plea of cash consideration turns out to be false. 40. The law does not require that a negotiable instrument should recite the consideration for which it is made or drawn. The law does not also require the person suing on the instrument to allege the consideration for which it was made or drawn. Irrespective of any recital in the instrument or any allegation, in the plaint regarding consideration, the law presumes that the instrument was made or drawn for consideration. The law does not also require the person suing on the instrument to allege the consideration for which it was made or drawn. Irrespective of any recital in the instrument or any allegation, in the plaint regarding consideration, the law presumes that the instrument was made or drawn for consideration. The presumption is that there was consideration and not that there was any particular consideration, that which might be recited in the instrument or that which might be alleged in the plaint. The presumption arises as soon as the execution of the instruments is proved and the presumption continues until the contrary is proved’, that is, until it is proved that there was no consideration. It must be proved that there was no consideration at all for the instrument. Mere proof that the particular consideration recited or alleged did not exist may not suffice, though such proof must natural ly be a circumstance to be considered in deciding whether there was no consideration at all. Therefore, a plaintiff who, quite unnecessarily, adduces evidence to prove a certain consideration but is unable to prove that consideration, need not necessarily lose his action for that reason. The burden of proving that there was no consideration is on the defendant and the burden has to be discharged irrespective of the failure of the plaintiff to prove a particular consideration which he sets out to prove. 41. In the instant case before us, as already pointed out, the defendant/appellant who originally admitted his liability to offer a sum of Rs. 6,444-55 did not explain the same. He has also not explained his subsequent plea which he has taken by amending the written statement, namely, that he is liable to pay only Rs. 3,617-98. The account books, Ex. B1 to Ex. B4 produced by the defendant appellant do not lead us anywhere. 42. In the decision in Sivaram v. Jayaram 2, it was held as follows:— “The chief object of the Negotiable Instruments Act is to legalise the system under which negotiable instruments pass from hand to hand in negotiation like ordinary goods, and as far as possible except where conditions in India required a departure, the Indian Legislature has followed the English law. In fact, in many portions the Legislature while codifying, has faithfully reproduced the principles of English law as enunciated in the English decisions rendered upto the time, besides taking such guidance as was necessary from the leading English text books. At the same time the Act, as it stands, “Cannot be said to be exhaustive and all comprehensive, touching all aspects of the negotiable instruments. Whenever there is any doubt on the interpretation of the provisions of the statute or any lacuna therein, it will be legitimate to refer to the English decisions for guidance. In fact, it has been said that the law of negotiable instruments is not the law of a single country but of the whole of the commercial world and that, except for specific differences and peculiarities existing in each country, the general rules of the law merchant will be of the same pattern in all the countries. Every effort should be made to interpret the provisions of the Act as to achieve and promote the object of the Act, namely, a free circulation of the bill from h and to hand without “confusion and obscurity” but with “precision and certainty”. Unless compelled by the express language of the statute courts should not accept any contention or interpretation which would result in “monstrous inconveniences and great embarrassment to commerce”. 43. The decision in Heerachand v. Jeevraj 1, relied on for the proposition that the principle behind S.118(a) of the Negotiable Instruments Act, 1881 is not a mere technical provision to be found in the Act. The principle is that there is a presumption of consideration in the case of a negotiable instrument. The reason for this presumption is that negotiable instrument passes from hand to hand on endorsement and it would make trading very difficult and negotiability of the instrument impossible unless such a presumption of consideration was made. The presumption, therefore, is a matter of principle to facilitate negotiability as well as trade. There was such a presumption of consideration at Common Law also in England till it was given statutory recognition. Applying the definition of disproved in Evidence Act to the principle behind the presumption in S.118(a) the principle comes to this. The court shall presume a negotiable instrument to be for consideration unless and until after considering the matters before it. There was such a presumption of consideration at Common Law also in England till it was given statutory recognition. Applying the definition of disproved in Evidence Act to the principle behind the presumption in S.118(a) the principle comes to this. The court shall presume a negotiable instrument to be for consideration unless and until after considering the matters before it. it either believes that consideration does not exist or considers the non-existence of the consideration so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that the consideration does not exist. Where the Court has come to the conclusion that the evidence of the maker of the negotiable instrument as to failure of consideration is untrustworthy and also to the conclusion that the evidence of the plaintiff fails to establish the consideration that is alleged or relied upon by him, the court must take the third step also namely whether on a consideration of all the matters before it, it is of the opinion that consideration has been disproved and there is no question of the court not taking this third step and decreeing the suit after taking only these two steps on the basis of the presumption of consideration. It must, as the Evidence Act stands and as the words “shall presume” and “disproved” are defined In it, take this final etc. The correct position in a case of this kind is that where both parties have led their entire evidence, the matter certainly rests on such evidence. It would, however, not be correct to say that it does not rest upon the presumption at all, for the court cannot for get the presumption. It will always remember the presumption and judge the evidence in the light of the presumption, that is, it must come to the conclusion that the consideration has been disproved. In order to arrive at that conclusion, it will have to consider all the matters before it and then decide whether it believes that consideration does not exist or considers its non existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist. 44. In order to arrive at that conclusion, it will have to consider all the matters before it and then decide whether it believes that consideration does not exist or considers its non existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist. 44. In Bhakthavatsalam v. Muthunara Reddiar 2, it is observed as follows: “There can be no doubt, of course, that the statutory presumption under S.118 of the Negotiable Instruments Act is a rebuttable one and such rebuttal may be from direct or circumstantial evidence disproving the presumption. The rebuttal evidence may also consist of presumptions drawn from proved facts or adverse inferences drawn from relevant conduct. Where what is in question is the factum of consideration for a negotiable instrument or the endorsement thereof and execution of the instrument is proved S.118 of the Negotiable Instruments Act directs a presumption to be drawn in favour of it being supported by consideration. By means of this presumption, the promise on whom the burden of proof is fixed by the law is shifted no the promisor to demolish the presumption and establish that the instrument of the endorsement is not supported by consideration. The precise question relating to presumption under S.118 of the Negotiable Instruments Act and the burden of proof as a matter of law and pleading and the burden of establishing a case was the subject matter of kundanlal v. Custodian, Evacuee Property 1. After referring to the two meanings of burden of proof as a matter of law and pleading and the other the burden of establishing a case, and stating that the former is fixed as a question of law on the basis of the pleadings and is unchanged during the entire trial and the latter is not constant but shifts according to the evidence in the case, the Supreme Court has pointed out that the presumption raised by S.118, of the Negotiable Instruments Act could be rebutted, among other evidence, by a presumption of fact drawn under S.114 of the Evidence Act. In that case, the plaintiff claimed that the promissory note sought to be enforced was executed in consideration of the price for the goods sold by him and that he was in possession of the relevant account books to show that he was in possession of the goods sold and that the sale was effected for a particular consideration. The Custodian with whom the Custodian-General, Evacuee property had agreed found that the promissory note was not supported by consideration as in his view the statutory presumption could not prevail as it was rebutted by other evidence and circumstances. While holding that they were right in drawing an adverse inference against the plaintiff from his non-production of the account books, the Supreme Court observed at page 1319: “In those circumstances, if such a relevant evidence is withheld by the plaintiff, S. 114 enables the Court to draw a presumption to the effect that, if produced, the said accounts would be unfavourable to the plaintiff. This presumption, if raised by a Court, can under certain circumstances rebut the presumption of law raised under S.118 of the Negotiable Instruments Act. Briefly stated, the burden of proof may be shifted by presumptions of law or fact, and presumptions of law or presumptions of fact may be rebutted not only by direct or circumstantial evidence but also by presumptions of law or fact.” “The Supreme Court also noticed certain authorities both of the Privy Council and of its own and reiterated the principle that it is the duty of a party to a suit in possession 6f important documents to produce in Court and if they failed to do so, the Court would be justified in drawing an adverse inference under S.114 of the Evidence Act. Where both sides have adduced evidence, seldom would the decision turn on a question of onus, unless of course the evidence on either side is evenly balanced. The Su preme Court quoted with approval the following observations of Varadachariar, J., in Narayana Rao v. Venkatappaya 2. Where both sides have adduced evidence, seldom would the decision turn on a question of onus, unless of course the evidence on either side is evenly balanced. The Su preme Court quoted with approval the following observations of Varadachariar, J., in Narayana Rao v. Venkatappaya 2. “.that even the onus under S.118 of the Negotiable Instruments Act need not always be discharged by direct evidence adduced by the defendant;Not merely can the Court base its conclusion on the effect of the evidence taken as a whole, but it may also draw adverse inferences against a party who being in a position to adduce better evidence deliberately abstains from doing so.” 45. In Official Receiver v. Abdul Shakur 3 , it is observed as follows:— “It must be noticed in the first instance that presumption under S.118 of the Negotiable Instruments Act is a presumption of consideration: it does not in all cases prove the quantum, of debt due by the insolvent at the date of insolvency. The Insolvency Court has, it must be remembered, to ascertain whether a debt is due by the insolvent, whether the debt is provable in insolvency, and the quantum of the debt due at the material date. In making this enquiry in its three aspects even the judgment of a c ourt against the debtor may not be regarded as binding upon the Court. In Ex Parte Lennox , (1885) 16 Q.B.D. 315, it was held that a judgment which the judgment debtor cannot set aside, may still be subjected to investigation by the court of Bankruptcy to enquire whether the debt, on which the judgment was founded was a good debt, and if the Court be satisfied that it was not, the Court may refuse to make a receiving order in respect of the debt. The principle of that case was extended in In re Fraser ex parte Central Bank of London , (1892) 2 Q.B D. 633. The principle of that case was extended in In re Fraser ex parte Central Bank of London , (1892) 2 Q.B D. 633. It was held in that case that “upon the hearing of a creditors petition for a receiving order against a judgment debtor, the Court of Bankruptcy has power, at the instance of the debtor himself, to go behind the judgment and to enquire into the validity of the debt, even though the debtor has previously applied in the action to set aside the judgment, and his application has been refused, and the refusal affirmed by the Court of Appeal.” Lord Esher, M.R., observed at pp. 636-637: “The decision ( Ex Parte Lennox ) is based upon the highest ground viz., that in making a receiving order, the Court is not dealing simply between the petitioning creditor and the debtor, but it is interfering with the rights of his other creditors, who, if the order is made, will not able to sue the debtor for their debts, and that the Court ought not to exercise this extraordinary power unless it is satisfied that there is a good debt due to the petitioning creditor. The existence of the judgment is no doubt prima facie evidence of a debt; but still the Court of Bankruptcy is entitled to enquire whether there really is a debt due to the petitioning creditor.” “A debt to be entered in the schedule must therefore be a real debt. A judgment against a debtor which is sought to be relied upon in proving a real debt for the judgment may have gone by default, it may have gone by consent or it may have been procured for any other reason. In a proceeding relating to proof of debts the question which arises being not one between the insolvent and the proving creditor alone, the rights of other creditors of the insolvent have of necessity to be considered. Even if for some reason the debtor himself is estopped from denying the debt there will be no estoppel against the Insolvency Court”. 46. Even if for some reason the debtor himself is estopped from denying the debt there will be no estoppel against the Insolvency Court”. 46. In J.I. Lourenco v. Xec Hamza 1, it was held that suit on promote against the maker was instituted, and the defendant contended therein that he executed it only to guarantee ‘repayment of the debt by his brother-in-law’ and produced an agreement between him and his brother in-law, it was held that the agreement would not have any effect on obligation arising between plaintiff and defendant under the pronote and that even if the defendants case that he executed it as guarantor or surety is accepted as correct this would amount to a p roper consideration and would bind the defendant to honour the promote. 47. In Thirumalai Iyengar v. Svbba Raja 2, it was held that there is a marked contrast between S.118 of the Negotiable Instruments Act and S.114 of the Evidence Act. The statutory presumption under S.118 of the Negotiable Instruments Act is mandatory while the presumption under S.114 of the Evidence Act is permissive depending upon the exercise of the discretion of the Court. Bills of Exchange, promissory notes and cheques are categories of transactions in the commercial world and the Law Merchant raised a presumption of consideration in favour of the instruments partly because it is necessary and important to preserve their negotiability intact and partly because the existence of a valid consideration may reasonably be inferred from the solemnity of the instruments themselves and the deliberate mode in which they are executed. The presumption of consideration is only to this extent, namely, that the negotiable instrument is supported by some consideration adequate or inadequate and is not a nudem pactum . There is no presumption regarding the quantum of consideration and the amount or value mentioned in a negotiable instrument should not be presumed to have been given or taken under the instrument. A recital in a negotiable instrument as to the pasing of consideration is no doubt prima facie evidence of such consideration having passed and the parties to the instrument are bound by the recital till the contrary is proved. A recital in a negotiable instrument as to the pasing of consideration is no doubt prima facie evidence of such consideration having passed and the parties to the instrument are bound by the recital till the contrary is proved. The course of trial may bring in various factors and circumstances the cumulative effect of which may be sufficient to destroy the presumption and to place the plaintiff in a position where he cannot succeed without establishing affirmatively by cogent and positive evidence that the document sued upon is supported by consideration, and that he is entitled to recover the amount sued for. In order to counteract the initial prima facie rebuttable presumption in favour of the plaintiff regarding the consideration the defendant can rely upon the circumstances and probabilities of the case and can of course, make capital out of the absurdity in the evidence on the side of the plaintiff himself. The duty of the Court is to give effect to the inference to be drawn from the evidence on record and it is not prevented from recording a finding which may not be consistent with the pleading of either party in a suit. Unless a party is called upon to produce into Court any documentary evidence in his custody and he fails to produce such evidence deliberately and without any adequate or justifying reason the Court should not draw any adverse inference from the mere non-production of such evidence. 48. In Alex Mathew v. Philip Philip 3, that the true principle where different cases have been pleaded and evidence has been let in, in support of both these sets of cases, is that the entire evidence in the case adduced by the plaintiff and the defendant and the findings entered by the Court or which are to be entered by the Court as well as the presumptions of law and fact which have to be drawn from all the facts established and attendant circumstances must be looked into as a whole to find out whether the presumption under S.118(a) of the Act has been rebutted or not. It would not be correct merely on the basis of the finding negativing the case of a plaintiff regarding consideration to hold that the presumption under S.118(a) has been rebutted. 49. It would not be correct merely on the basis of the finding negativing the case of a plaintiff regarding consideration to hold that the presumption under S.118(a) has been rebutted. 49. In Abdul Shakur v. Kotwaleshwar 1, it was held that the presumption mentioned in S.118(a), Negotiable Instruments Act can be invoked in insolvency proceedings, but the circumstances tending to make it doubtful that consideration passed under the negotiable instrument coupled, with a denial on the part of the maker of the instrument, would suffice to deprive the creditor of the benefit of the presumption and require him to prove by evidence that consideration did actually pass. 50. In Raghavan Thampi v. Janaki Amma 2, it was held that there is a presumption under S.118 that a negotiable instrument is supported by consideration. This presumption may be rebutted by any contrary presumption which may be available in law or by circumstantial evidence. This presumption does not apply to the quantum of consideration. The amount expressed in the negotiable instrument must be accepted as true unless it is rebutted. In a suit on a cheque or a promissory note, the plaintiff is not under such a duty suo motuto produce evidence of prior dealings, that in the event of non-production a presumption would arise. It may be otherwise if in spite of a notice to produce, the plaintiff, though in possession of such evidence, does to produce it. That would be a case of withholding production within the meaning of illustration(g) or ‘refusal’ to produce within the meaning of the explanatory note to that illustration enacted in the section. Therefore, in a suit on a negotiable instrument, it is not possible to raise a p resumption under illustration (g) simply because the plaintiff does not produce suo motu , some document or piece of evidence which has relevancy to it. 51. In Bent Madhab Nath v. Juyandra Nath 3, it was held that the statutory presumption envisaged in S.118(a) is rebuttable. In a suit on a handnote after the execution of the handnote is proved the presumption under S.118(a) that the instrument was made for consideration comes into play. Then the burden shifts on the defendant to rebut that presumption by proving that the instrument was not supported by consideration by adducing. In a suit on a handnote after the execution of the handnote is proved the presumption under S.118(a) that the instrument was made for consideration comes into play. Then the burden shifts on the defendant to rebut that presumption by proving that the instrument was not supported by consideration by adducing. (1) direct evidence, (2) circumstantial evidence, and (3) by relying upon presumptions of fact mentioned in S.114, Evidence Act or other similar provisions of law raising presumption of fact in his favour. Once the presumption is rebutted the burden of proof shifts back to the plaintiff. In a suit on a handnote the question whether the statutory presumption under S.118(a) that the instrument was made for consideration is rebutted by the evidence adduced by the defendant is a pure question of fact. The court in second appeal has no jurisdiction to reappraise or reappreciate the finding of the court below unless the finding is shown to be perverse or not based on evidence. In a suit on handnote when the consideration set up in the plaint is different from that set out in the instrument the presumption, under S.118(a) in favour of the plaintiff that the instrument was made for consideration is not destroyed merely because the consideration set out in the instrument is found to be wrong because the presumption that is raised under S.118(a) is not in respect of the consideration mentioned in the negotiable instrument, but the presumption is in favour of there being a consideration for the negotiable instrument, any consideration which is a valid consideration in law. 52. In Chandan Lal v. M/s. Amin Chand Mohan Lal 4, it was held that S.118(a), Negotiable Instruments Act provides a special rule of evidence in the case of negotiable instrument contrary to the case of an ordinary contract. Party denying consideration has to prove want of consideration or, in other words, to rebut the presumption that the negotiable instrument was made or drawn for consideration. The statutory presumption in favour of there being consideration for every negotiable instrument continues unless it is rebutted. Under S.114, Evidence Act, the Court has unfettered discretion to presume a fact, as proved, until it is disproved, or ignore such a presumption and call for proof of it. The statutory presumption in favour of there being consideration for every negotiable instrument continues unless it is rebutted. Under S.114, Evidence Act, the Court has unfettered discretion to presume a fact, as proved, until it is disproved, or ignore such a presumption and call for proof of it. But when the statute requires, as in the case of S.118 of the Negotiable Instruments Act that the Court shall presume a fact, the Court has no option left, and it has to treat that fact as proved, until the party interested in disproving it has led evidence in support of its non-existence. A defendant may discharge the burden of proof placed upon him under S.118(a), either by producing definite evidence, showing that consideration had not passed, or, by relying upon facts and circumstances of the case, and also by referring to the flaws in the evidence of the plaintiff and may then contend that the presumption has been rebutted. If the plaintiff goes into the witness-box, and the result of his evidence is, that he fails to establish the passing of consideration, and the Court is thus satisfied, that the plaintiff did not give the consideration which he alleges the defendant can certainly avail himself of the contrariety and the provisions of S.118(a) are not thereby entrenched upon. Thus, where the case of the plaintiff in the plaint as well in his examination-in-chief was that he had paid cash consideration for the pronote but in his cross-examination the plaintiff took a complete somersault and he was merely the benamidar of the pronote and that the consideration was paid by another person and that he did not know the executant of the pronote, the initial presumption under S.118(a) stands rebutted by the contradictions. 53. In Sethupathi v. Chidambaram 1, it was held that where a promissory note has been given, consideration is to be presumed and the burden to prove that there was no consideration for the promissory note is upon the executant. 54. 53. In Sethupathi v. Chidambaram 1, it was held that where a promissory note has been given, consideration is to be presumed and the burden to prove that there was no consideration for the promissory note is upon the executant. 54. The decision in Srinivas Das v. Suryanarayanan 2, lays down the principle that as per S.114 of the Evidence Act, and Illustration (g), it was held that the plaintiff has not filed all the documents to case but only some from his possession, and that the defendant not calling upon the plaintiff to produce the documents whose existence was admitted by the witnesses of the plaintiff, no adverse inference against the plaintiff for such non-production of documents can be drawn. But the Court can take into consideration in weighing the evidence or any dire ct inferences from established facts that the documents might have favoured the defendants case. In the above decision, at page 263, paragraph 28 the Supreme Court has observed as follows:— “28. The oral evidence about the foundation of the Math or about the various acquisitions of property by purchase or by gift is nil. Whatever a witness has deposed has not been on the basis of his personal knowledge. This is natural when the Math was founded about two hundred years ago and when most of the acquisitions had taken place long ago. The best person to speak, though not from personal knowledge, could have been the Mahant himself. He can base his knowledge on the documents about the history of the Math and the acquisition of the properties. Such documents must naturally be in the custody of the Mahant. The Mahant has not come in the witness box. All the documents have not been produced. In fact it is the plaintiff alone who produced a number of documents but he had picked and cho-en from among the documents in his possession. Some documents which could have thrown some light on the question under determination have not been produced. It is true that the defendant-respondent also did not call upon the plaintiff-appellant to produce the documents whose existence was admitted by One or the other witnesses of the plaintiff and that, therefore, strictly speaking no inference adverse to the plaintiff can be drawn from his non-producing the list of documents. It is true that the defendant-respondent also did not call upon the plaintiff-appellant to produce the documents whose existence was admitted by One or the other witnesses of the plaintiff and that, therefore, strictly speaking no inference adverse to the plaintiff can be drawn from his non-producing the list of documents. The Court may not be in a position to conclude from such omission that those documents would have directly established the case for the respondent. But it can take into consideration in weighing the evidence or any direct inferences from est ablished facts that the documents might have favoured the respondents case”. 55. In the instant case before us, it is also relevant to note that the execution of the suit promissory note is admitted by the defendant/appellant herein and under the circumstances and in the light of the decisions referred to by both sides, it is only the defendant/appellant herein on whom the burden has heavily fallen to prove that it was he who executed in the circumstances mentioned by him in his written statement, namely, as a security and that he is liable only to pay a sum of Rs. 3,617-98. The development made at the stage of oral evidence given by him cannot be given any weight especially as the said defence put forward by him was also not satisfactorily proved by him. The defendant/appellant herein has failed to prove the pleas put forward by him. 56. The defendant/appellant herein has taken a plea that he is entitled to the benefits of Act 38/72. There is absolutely nothing to substantiate the evidence on the side of the defendant/appellant herein for claiming the benefits under the said Act. The defendant/appellant herein has not stated anything in his evidence that he is entitled to the benefits of the Tamil Nadu Act 38 of 1972, and the debt should be scaled down as per that Act. I find that the defendant/appellant herein has not proved his case that he is liable to pay only Rs. 3,617-98. I find that the defendant/appellant herein is not entitled to the benefits of the provisions of the Tamil Nadu Act 38 of 1972. The plaintiff/respondent herein who gave evidence as P.W.1 has specifically stated that the defendant/appellant received a sum of Rs. 7,950 on three occasions from him and executed the promissory now, Ex.A1, in his favour. 3,617-98. I find that the defendant/appellant herein is not entitled to the benefits of the provisions of the Tamil Nadu Act 38 of 1972. The plaintiff/respondent herein who gave evidence as P.W.1 has specifically stated that the defendant/appellant received a sum of Rs. 7,950 on three occasions from him and executed the promissory now, Ex.A1, in his favour. He has denied the case of the defendant/appellant herein that he assisted him in the management of his properties or his boat. The lower court which had the benefit of seeing P.W.1— the respondent herein in the box has believed his evidence after giving satisfactory reasons and also discussing the entire evidence available on record, both oral and documentary, in a comprehensive manner. I find that the suit promissory note is true and valid, supported by consideration and the defendant/appellant herein is liable as claimed in the plaint and the evidence tendered by the plaintiff/respondent. None of the contentions r aised on behalf of the defendant/appellant herein can be upheld under the circumstances. 57. There is no merit in the appeal and hence the same is dismissed with costs.