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2005 DIGILAW 153 (MAD)

Krishna Reddiar v. Raghava Gounder

2005-02-01

A.R.RAMALINGAM

body2005
Judgment :- The second appeal has been filed by one Krishna Reddiar being the plaintiff in O.S.No.777 of 1988 on the file of the District Munsif Court, Tirukovilur against the judgment and decree passed by the Sub Court, Villupuram in A.S.No.61 of 1992 in and by which the judgment and decree passed by the Trial Court has been modified to Rs.2529/= with subsequent interest and proportionate cost. 2. The said suit in O.S.No.777 of 1988 was filed by the plaintiff Krishna Reddiar against the defendant Raghava Gounder for recovery of Rs.15,000/= on 29.11.1985. The said suit was resisted by the defendant with the allegations that it is true that the defendant executed the suit pro note but not for cash consideration of Rs.15,000/= and that on the other hand, the suit pro note came into existence under compulsion in connection with the amount payable by the defendant to the plaintiff being the value of arrack bottles in the arrack shop of the plaintiff and after setting right the transaction, the remaining amount is Rs.2529/= and that the defendant is liable to pay only the said amount of Rs.2529/= and not Rs.15,000/= as cash consideration under the suit pro note as claimed in the plaint and that the suit is liable to be dismissed. 3. After trial, with the evidence of the plaintiff as PW1 and Ex.A1 being the suit pro note, Ex.A2 being the notice issued by the plaintiff's advocate to the defendant and Ex.A3 being reply notice given by the defendant's advocate to the plaintiff's advocate, the defendant as DW1 and one Kaliyamurthy as DW2 and Ex.B1 being account note book said to have been maintained by the defendant at the arrack shop of the plaintiff, District Munsif came to the conclusion that the defendant is liable to pay the suit amount, as such, claimed in the plaint and consequently decreed the suit. 4. On appeal by the defendant Raghava Gounder before the Sub Court, Villupuram in A.S.No.61 of 1992, after enquiry, the Sub Court modified the judgment and decree of the Trial Court and decreed the suit for Rs.2529/= only with subsequent interest and proportionate cost. 5. I have gone through the entire oral and documentary evidence available for either side in the light of the judgments of both the courts below. 5. I have gone through the entire oral and documentary evidence available for either side in the light of the judgments of both the courts below. From my scrutiny, I am able to see that the substantial question of law appears to be raised by the appellant as if the Sub Court, Villupuram has erroneously placed the onus on the plaintiff to prove the suit pro note marked as Ex.A1 contrary to the presumption under section 118 of the Negotiable Instruments Act. 6. According to Ex.A2 notice issued by the plaintiff's advocate, the plaint and the evidence of the plaintiff as PW1, it has been specifically alleged and pleaded that the defendant borrowed Rs.15,000/= in cash from the plaintiff on 29.11.1985 and he failed to repay the same. On the contrary, as per Ex.A3 being reply notice of the defendant's advocate, the written statement filed by the defendant and his evidence as DW1, it has been specifically alleged and pleaded that though he happened to execute Ex.A1 pro note, it is not supported by consideration to the tune of Rs.15,000/= in cash and further Ex.A1 came into existence under the circumstances that there was some amount due from the defendant to the plaintiff in respect of arrack bottles and sale made from the arrack shop of the plaintiff by the defendant in the capacity of his servant in the arrack shop and the said pro note was obtained only for such kind of amount due only and not for cash consideration of Rs.15,000/= as claimed by the plaintiff. 7. Under section 118 of the Negotiable Instruments Act, it goes without saying that there is a presumption of consideration when once a person like the defendant admits execution of the pro note. But, at the same time, such presumption can be rebutted by the executant by acceptable and legal grounds. In the way of discharging burden of the defendant, it is the specific evidence of the defendant as DW1 that he never borrowed Rs.15,000/= in cash and the pro note was obtained by the plaintiff only for the purpose of getting prompt repayment of the amounts due from the defendant in connection with the sales of arrack bottles to the consumers from the shop of the plaintiff. He also examined a witness viz., Kaliyamurthy as DW2 who is an attestor to Ex.A1 pro note as well as his co-brother. He also examined a witness viz., Kaliyamurthy as DW2 who is an attestor to Ex.A1 pro note as well as his co-brother. DW2 also in his evidence clearly says that there was no cash consideration of Rs.15,000/= for the suit pro note and no doubt he has put his attestation in the pro note, but, it was on account of the amount due by the defendant (arrack bottles' value Rs.12,500 + other dues Rs.2500/=). In this context, it is also to be noted that it is the evidence of PW1 himself that he happened to lend Rs.15,000/= in cash only as per the advice of DW2. But, DW2 gives evidence to the effect that there was no cash consideration of Rs.15,000/= for the suit pro note and the pro note itself was obtained for some other amount in connection with arrack shop. When there is the evidence of D.Ws.1 and 2 in line with Ex.A3 being reply notice of the defendant and his pleadings in the written statement, there is every reason to believe that the suit pro note viz., Ex.A1 cannot have cash consideration of Rs.15,000/= as claimed by the plaintiff. 8. On the other hand, it is prudently expected that the plaintiff should examine the other attesting witness Kaliyaperumal and scribe of the pro note Mani Naidu to controvert the evidence of D.Ws.1 and 2 and thereby Ex.A1 is supported by cash consideration of Rs.15,000/=. But, there is no reason as to why the plaintiff has failed to examine those persons as his witnesses that too when the suit pro note is said to have come into existence for different purpose and circumstances. Therefore, the mere ipse dixit of the plaintiff cannot be taken for granted as if the suit pro note is proved and supported by cash consideration of Rs.15,000/=. 9. In between the evidence of PW1 and D.Ws.1 and 2, the evidence of D.Ws.1 and 2 and their versions, in my view, are more believable and acceptable than that of PW1. That is why the Sub Court, Villupuram, also has been convinced with the stand of the defendant and modified the judgment and decree of the Trial Court. 9. In between the evidence of PW1 and D.Ws.1 and 2, the evidence of D.Ws.1 and 2 and their versions, in my view, are more believable and acceptable than that of PW1. That is why the Sub Court, Villupuram, also has been convinced with the stand of the defendant and modified the judgment and decree of the Trial Court. In such circumstances, I am to point out that the defendant has considerably discharged the burden cast upon him under section 118 of the Negotiable Instruments Act to establish that there is no cash consideration of Rs.15,000/= for the suit pro note marked as Ex.A1 and on the other hand, the plaintiff has failed to establish his specific case of payment of Rs.15,000/= as consideration for the suit pro note. Accordingly, in all reasonableness and practical point of approach, I am convinced that the suit pro note marked as Ex.A1 could not be for the cash consideration of Rs.15,000/= and it should have come into existence only under the circumstances stated by the defendant and thereby in consequence, there is no reason to interfere with the judgment and decree of the Sub Court, Villupuram. 10. In the result, the second appeal fails and the same is dismissed with costs.