JUDGMENT (Prayer: Second Appeal is filed under Section 100 of C.P.C, to set aside the judgment and decree passed in A.S.No.6 of 2019 on the file of the Principal District Court, Dindigul dated 11.09.2020 confirming the judgment and decree passed in O.S.No.29 of 2017 on the file of the Principal Sub Court, Dindigul dated 25.09.2018.) 1. The plaintiff is the appellant. 2. The plaintiff had filed O.S.No.29 of 2017 before the Principal Sub Court, Dindigul for recovery of money based upon her pro-note dated 07.08.2015 for a sum of Rs.2,00,000/- said to have been executed by the defendant. The suit was dismissed by the trial Court. The plaintiff filed A.S.No.6 of 2019 before the Principal District Court, Dindigul. The learned District Judge was pleased to dismiss the appeal. As against the concurrent findings, the present second appeal has been filed by the plaintiff. 3. The plaintiff has contended that the defendant had received a sum of Rs.2,00,000/- from the plaintiff towards family expenses on 07.08.2015 and executed a suit pro-note agreeing to pay an interest at the rate of 12% per annum. Since the amount was not paid, the plaintiff sent a legal notice under Exhibit A2 on 24.12.2016. Despite receiving the same, the defendant did not send any reply. Hence, the present suit for recovery of money. 4. The defendant filed a written statement contending that the plaintiff and the attestors of the suit pro-note are all partners in Athiswarar Finance Company. The defendant's brother Andiappan approached the said finance for a loan of Rs.1,00,000/-. Though the plaintiff has agreed to lend the money, he came to the house of the defendant and compelled her to execute a pro-note and under threat, he received the parent document of the property belonging to the defendant. Though a sum of Rs.1,00,000/- was given to the defendant's brother Andiappan, the respondent has not received any amount for the plaintiff. After receipt of legal notice from the plaintiff, when the defendant and her brother met the plaintiff, the plaintiff informed them that within four months if a sum of Rs.1,00,000/- is repaid, he would return the pro-note and the white paper signed by the defendant. Hence, the defendant did not send any reply notice. 5. After receipt of legal notice from the plaintiff, when the defendant and her brother met the plaintiff, the plaintiff informed them that within four months if a sum of Rs.1,00,000/- is repaid, he would return the pro-note and the white paper signed by the defendant. Hence, the defendant did not send any reply notice. 5. The trial Court after consideration of the oral and documentary evidence, arrived at a conclusion that the defendant has admitted her signature for the suit pro-note and the burden of proof is upon the defendant. The trial Court also found that it is not believable that the defendant has executed the suit pro-note under threat and she has handed over the original parent document to the plaintiff. Neither the defendant nor her brother Andiappan have lodged any police complaint on the above said aspects. The trial Court also found that the defendant has not established the relationship between the attestors of the pro-note and the plaintiff, but proceeded to dismiss the suit on the ground that the acquaintance between the plaintiff and the defendant has not been explained properly. Whether the plaintiff is having wherewithal to lend the loan amount of Rs.2,00,000/- to the defendant has also not been explained. The trial Court also doubted the circumstances in which the suit pro-note is said to have been executed. In view of the above said suspicion, the trial Court arrived at a finding that the defendant has rebutted the presumption under Section 118 Negotiable Instrument Act. After the presumption has been rebutted, the burden is upon the plaintiff to prove the execution of the suit pro-note. However, the deposition of PW2 has not strengthened the case of the plaintiff. Hence, the trial Court dismissed the suit. 6. On perusal of Exhibit X1, the First Appellate Court found that the attestors of the pro-note are partners in Athiswarar Finance Company. They are running a finance company and it is not at all necessary for them to be the attestors in the suit pronote. The attesting witnesses are the friends of the plaintiff. It has not been explained where the defendant demanded money and in the deposition, the defendant has stated the he used to meet the plaintiff only at the hotel. If it is so, it is not probable for the defendant to come to the house of the plaintiff and demand money. The attesting witnesses are the friends of the plaintiff. It has not been explained where the defendant demanded money and in the deposition, the defendant has stated the he used to meet the plaintiff only at the hotel. If it is so, it is not probable for the defendant to come to the house of the plaintiff and demand money. On the above said finding, the First Appellate Court held that the plaintiff has not established that he paid a sum of Rs.2,00,000/- to the defendant. Based upon the said finding, the First Appellate Court dismissed the suit. 7. As against the concurrent findings, the present second appeal has been filed by the plaintiff. The second appeal has been admitted on the following substantial questions of law. (1) Whether the Courts below were right in not invoking presumption under Section 118 of the Negotiable Instruments Act since the defendant had admitted the signature in the suit promissory note? (2) Whether the Courts below were right in rejecting the evidence of the attesting witness namely P.W.2 on the sole ground that he happens to be the friend of the plaintiff? 8. The learned counsel for the appellant contended that the defendant has admitted the execution of the suit pro-note in the written statement. The only defence taken by her in the written statement is that under threat and coercion, she has executed a suit pro-note. The defendant has further contended that the loan amount of Rs.1,00,000/- was not received by the defendant only by her brother Andiappan. 9. Despite receiving legal notice, the defendant has not chosen to send a reply notice. The Courts below have erred in erroneously shifting the burden upon the plaintiff, when the defendant has admitted the execution of the suit pro-note. The Courts below have proceeded to non-suit the plaintiff doubting the place of demand of money by the defendant and the place of handing over of the amount to the defendant. These are not material aspects which would affect the genuineness and validity of the suit pro-note. Hence, he prayed for allowing the second appeal. 10. Though the respondent has been served, there is no appearance either in person or through counsel. 11. I have considered the submission made on the side of the appellant. 12. I have carefully perused Exhibit A1 suit pro-note, the depositions of PW1, PW2, DW1 and DW2. Hence, he prayed for allowing the second appeal. 10. Though the respondent has been served, there is no appearance either in person or through counsel. 11. I have considered the submission made on the side of the appellant. 12. I have carefully perused Exhibit A1 suit pro-note, the depositions of PW1, PW2, DW1 and DW2. The defendant had admitted the execution of the suit pro-note. In Paragraph No.3 of the written statement, the only defence that was taken by her is that she was forced to execute the same under threat by the plaintiff for the loan amount borrowed by her brother Andiappan. The plaintiff has also taken away the original of the parent document that were available with the defendant. The defendant has further contended that for the loan amount borrowed by her brother Andiappan, she was forced to executed the suit pro-note for consideration. 13. If the case of the defendant is true, the defendant would not have waited till filing of the suit to lodge a complaint before the police about execution of the suit pro-note under threat. Especially when she has parted away her original parent document of the property, she would not have kept silent. However, the conduct of the defendant from the date of pro-note namely 07.08.2015 till the date of filing of the suit on 10.01.2017 does not inspire confidence. Despite receiving a legal notice, on 24.12.2016 under Exhibit A2, the defendant has not chosen to respond to the same. Hence, it is evident that the defence put forward by the defendant for the first time in the written statement is not believable. 14. The defendant has admitted the receipt of the legal notice, but she has contended that after legal notice, she met the plaintiff and the plaintiff contended that if the amount of Rs.1,00,000/- is repaid within four months, he would not initiate any action. However, no oral evidence has been let in by the defendant to the said effect. The defendant however contended that her brother Andiappan has received a loan amount of Rs.1,00,000/- from the plaintiff. Though the said Andiappan has been examined as PW2, he has not entirely supported the case of the defendant. It is not the case of the defendant that the entire loan amount has been repaid to the plaintiff. The defendant however contended that her brother Andiappan has received a loan amount of Rs.1,00,000/- from the plaintiff. Though the said Andiappan has been examined as PW2, he has not entirely supported the case of the defendant. It is not the case of the defendant that the entire loan amount has been repaid to the plaintiff. The only defence is Andiappan has received the loan amount and the defendant has executed the suit pro-note. The defence of the defendant is unbelievable because the plaintiff would like to get a pro-note only from the borrower and not from the sister of the borrower. No reason has been assigned by the defendant why the defendant has chosen to sign the suit pro-note instead of the borrower namely Andiappan. 15. When the defendant has admitted the execution of the suit pro-note in the written statement, the presumption under Section 118 of the Negotiable Instrument Act will get attracted. The entire burden will be upon the defendant to establish that there was no consideration for the said suit pro-note. However, the defence of the defendant is that her brother borrowed a sum of Rs.1,00,000/- and she executed the suit pro-note. It is not explained why she was threatened and forced to execute a pro-note on 07.08.2015 when her brother Andiappan had received the amount. Hence, the defendant has not discharged her burden of rebutting the presumption under Section 118 of the Negotiable Instrument Act. 16. It is the contention of the defendant that the plaintiff and the attestors of the suit pro-note are partners in a finance company by name Athiswarar Finance Company. The partnership deed of the said finance company has been produced by PW2 as Exhibit X1. A perusal of the said document will indicate that the plaintiff is not a partner in the said finance company, but both the attestors are partners in the finance company. One of the attestors namely Saravanan has been examined as PW2. 17. The First Appellate Court has rejected the deposition of PW2 on the ground that he is the friend of the plaintiff. When Exhibit X1 does not disclose that the plaintiff is a partner in Athiswarar Finance Company, the First Appellate Court has erred in holding that PW2 is the friend of the plaintiff and hence, his deposition has to be rejected. When Exhibit X1 does not disclose that the plaintiff is a partner in Athiswarar Finance Company, the First Appellate Court has erred in holding that PW2 is the friend of the plaintiff and hence, his deposition has to be rejected. In fact, the trial Court has given a finding that the defendant has not explained the relationship between the attestors and the plaintiff. When the defendant has not discharged the burden of rebutting the presumption under Section 118 of the Negotiable Instrument Act, the plaintiff is entitled to a decree for recovery of money. 18. The plaintiff has examined one of the attestors of the pro-note as PW2. The deposition of PW2 has not been discredited in the cross-examination done by the defendant. Hence, the plaintiff has proved Exhibit A1 suit pro-note. The Courts below have non-suited the plaintiff on frivolous and immaterial ground. 19. In view of the above said discussion, the substantial questions of law are answered as follows: (1) The Courts below have erred in not invoking the presumption under Section 118 of the Negotiable Instruments Act despite the defendant having admitted her signature in the suit promissory note. (2) the Courts below have erred in rejecting the evidence of attesting witness namely PW2 on the sole ground that he is the friend of the plaintiff. 20. In view of the above said discussion, both the substantial questions of law are answered in favour of the appellant. The judgment and decree of the Courts below are set aside. The suit in O.S.No.29 of 2017 on the file of the Principal Subordinate Court, Dindigul is decreed as prayed for. The second appeal is allowed. No costs.