JUDGMENT : M.A.ABDUL HAKHIM, J. 1. The defendant in a suit for recovery of money is the appellant. The plaintiff filed the suit for recovery of an amount of Rs.1,50,000/- with interest at the rate of 12% which is covered by Ext.A1 cheque dated 12/02/2013 alleged to have been issued by the defendant. 2. As per the plaint allegations, the plaintiff and defendant are known to each other with close acquaintance. On account of the same, for the purpose of his family, the defendant borrowed an amount of Rs.1,50,000/- on 25/07/2012 from the plaintiff agreeing to repay the same within two months from the said date. Later, when the plaintiff demanded repayment of the said amount, the defendant visited the residence of the plaintiff and issued Ext.A1 cheque which is written and signed by the defendant, for discharging of the liability of Rs.1,50,000/-. On presentation of the cheque, the cheque was dishonoured. Though lawyer notice was sent on 16/02/2013, the defendant did not pay the cheque amount. 3. The defendant opposed the suit prayers by filing written statement contending that the defendant had borrowed an amount of Rs.1,00,000/- from the plaintiff in March 2012 and on demand of the plaintiff, the defendant had issued two blank signed cheque leaves and the title deed of the property of the defendant as security to the plaintiff. The plaintiff is a money lender by profession. The defendant approached the plaintiff through a friend for obtaining a loan on account of his urgent financial need. The defendant belongs to the State of Tamil Nadu. Later, a total amount of Rs.1,13,000/- was repaid to the plaintiff in instalments in April, May, June, July and August, 2012. The defendant sent a Notice dated 26/06/2013 in reply to the Notice dated 16/02/2013 issued by the plaintiff through lawyer. Though the defendant requested to return the security documents, the plaintiff demanded an additional amount of Rs.50,000/- from the defendant. Later, he demanded Rs.78,000/- from the defendant and the defendant submitted petition to the Chavakkad Police Station on 14/02/2013 in this regard. 4. On the side of the plaintiff, the plaintiff was examined as PW1 and Exts. A1 to A3 documents were marked. Ext.A1 is the cheque dated 12/12/2013, Ext.A2 is the Memo for the return of cheque, and Ext.A3 is the Lawyer Notice dated 16/02/2013. 4. On the side of the plaintiff, the plaintiff was examined as PW1 and Exts. A1 to A3 documents were marked. Ext.A1 is the cheque dated 12/12/2013, Ext.A2 is the Memo for the return of cheque, and Ext.A3 is the Lawyer Notice dated 16/02/2013. On the side of the defendant, defendant was examined as DW1 and Exts.B1 to B5 documents were marked. Ext.B1 is the Lawyer Notice dated 26/02/2013 sent by the defendant to the plaintiff, Ext.B2 is the Postal Receipt, Ext.B3 is the Acknowledgement card, Ext.B4 is the Petition to Chavakkad Police Station and Ext.B5 is the Receipt for Ext.B4. 5. The Trial Court decreed the suit in part for an amount of Rs.23,250/- with interest @ 6% per annum from the date of the decree till realisation from the defendant. The Trial Court found that the case pleaded by the defendant is more probable and on the basis of such finding, the Trial Court entered a finding that the amount borrowed by the defendant is Rs.1,00,000/- and that the defendant repaid an amount of Rs. 1,13,000/- towards principal and interest. Thereafter, the Trial Court calculated interest on Rs.1,00,000/- @ 15% per annum for 29 months and found that the interest would come to Rs.36,250/-. Then after deducting the amount already paid the balance interest was found to be payable as Rs.23,250/-. Accordingly, the decree was made for Rs.23,250/- with interest. 6. The plaintiff filed appeal before the First Appellate Court and the First Appellate Court found that Ext.A1 cheque was issued by the defendant and the plea of discharge pleaded by the defendant is not proved and hence decreed the suit allowing to recover an amount of Rs.1,50,000/- with interest @ 6% per annum from the date of the suit till realisation without costs from the defendant and his assets. 7. This Court admitted this Regular Second Appeal on the following substantial question of law: “Whether the lower appellate court was justified in holding that the execution of Ext.A1 cheque stands proved merely on the admission of the defendant about his signature in a blank cheque given as security?” 8. I heard the learned counsel for the appellant Smt.Athira A.Menon and the learned counsel for the respondent Sri. C. K. Mohanan. 9. I heard the learned counsel for the appellant Smt.Athira A.Menon and the learned counsel for the respondent Sri. C. K. Mohanan. 9. The learned counsel for the appellant contended that the specific allegations in the plaint is that Ext.A1 cheque was written and signed by the defendant and handed over the same to the plaintiff. On a perusal of Ext.A1 cheque itself, it would reveal that it is not written by the defendant. The defendant is a native of Tamil Nadu and he is an illiterate person. He has specifically stated when he was examined as PW1 as he did not know how to fill the details of the cheque. The cheque is seen filled in English by an educated man. Hence, the version of the plaintiff that the cheque was written, signed and handed over by the defendant is not believable. On the other hand, the defendant specifically pleaded that he had handed over a signed blank cheque to the plaintiff as security for the borrowal from the plaintiff. Ext.A1 cheque is dated 12/02/2013. On the same date, it was presented. Ext.A3 Lawyer Notice was sent on 16/02/2013 and without waiting for any reply, the suit was filed on 19/02/2013. The learned counsel invited my attention to Sections 93 and 94 of the Negotiable Instruments Act, 1881 which provides for mandatory notice on dishonour of a negotiable instrument. The issuance of Ext.A3 notice could not be treated as in compliance with Sections 93 and 94 of the NI Act as the suit was filed even before serving notice to the defendant. The Trial Court, which has seen the demeanour of the witnesses has found that the discharge pleaded by the defendant is true and correct. The Trial Court rightly found that the amount of Rs.1,00,000/- borrowed by the defendant was repaid by him with interest. Even then, the Trial Court granted decree calculating further interest. The First Appellate Court should not have interfered with the well considered the judgment of the Trial Court. 10. On the other hand, the learned counsel for the respondent/plaintiff contended that the judgment passed by the First Appellate Court is perfectly legal and sound. The Trial Court believed the plea of discharge relying on the disposition of the DW1 on the mere reason that he has sworn in the name of Guruvayoorappan. Such an evidence is not legal and could not be relied on. The Trial Court believed the plea of discharge relying on the disposition of the DW1 on the mere reason that he has sworn in the name of Guruvayoorappan. Such an evidence is not legal and could not be relied on. It is admitted by the defendant that he borrowed amount from the plaintiff and issued Ext. A1 cheque. It is an admission of execution of the cheque. In such a case, there could not be any dispute regarding the quantum of the amount. Ext.A1 would clearly show that the amount therein is Rs.1,50,000/-. In such case, in view of the presumption available under Section 118 of the NI Act, the plaintiff is entitled to succeed in the suit. 11. I have considered the rival contentions. 12. As rightly pointed out by the learned counsel for the appellant, the specific case of the plaintiff is that Ext.A1 cheque is written, signed and handed over by the defendant. On a perusal of Ext.A1 cheque, it is seen that the writings in Ext.A1 are made in one ink and the signature is made in another ink and it appears that writings are made by a person who is well versed in English. The defendant belonged to the state of Tamilnadu. The defendant while examined as DW1 and specifically stated that he is an illiterate person and he does not know how to fill up a cheque. It is seen from the nature of signature, his evidence appears to be correct on this aspect. That apart, this evidence is not specifically challenged by the plaintiff. He appears to have not much acquaintance with the plaintiff. The plea of the defendant that he has given a blank signed cheque to the plaintiff as a security for the loan availed by him is highly probable. The case of the plaintiff that Ext.A1 cheque was written by the defendant, is proved to be incorrect. It would indicate that it is the plaintiff who has filled the cheque for an amount of Rs.1,50,000/-. 13. In view of the aforesaid facts, the mere fact that the defendant admitted signature in Ext.A1 cheque, it could not be held that he had admitted the execution of Ext.A1 cheque. The plaintiff could not prove the execution of Ext.A1 cheque by the defendant. 13. In view of the aforesaid facts, the mere fact that the defendant admitted signature in Ext.A1 cheque, it could not be held that he had admitted the execution of Ext.A1 cheque. The plaintiff could not prove the execution of Ext.A1 cheque by the defendant. Since the execution of Ext.A1 cheque is not proved, the question of rebuttal of presumption available to the plaintiff under Section 118 of the NI Act does not arise. In such case the First Appellate Court should not have granted decree on the basis of Ext.A1. 14. In the written statement, the defendant has specifically admitted that he had borrowed an amount of Rs.1,00,000/- and had given security documents in support of the same. As rightly pointed out by the learned counsel for the respondent, the Trial Court illegally relied on the evidence of DW1 on the mere reason that he has sworn in the name of Guruvayoorappan to hold that the amount of Rs.1,13,000/- is repaid by him. The First Appellate Court was right in interfering with the said finding of the Trial Court. When it is admitted before the Trial Court that the amount of borrowing is Rs.1,00,000/-, the Trial Court ought to have granted a decree for Rs.1,00,000/- in favour of the plaintiff. Instead, after accepting the plea of discharge, the Trial Court calculated interest @ 15% per annum for a period of 29 months for Rs.1,00,000/- and after deducting amount of Rs.1,13,000/-, the balance amount is Rs.23,250/- is decreed. There was no evidence before the Trial Court with respect the rate of higher contractual interest @ 15%. The said approach of the Trial Court is illegal and unsustainable. When Ext.A1 is not proved before the Court, the First Appellate Court acted illegally in passing a decree for Rs.1,50,000/- in favour of the plaintiff. Hence, the judgment of the Trial Court which is modified by the First Appellate Court are liable to be set aside and the suit is liable to be decreed for Rs.1,00,000/- admittedly borrowed by the defendant, with interest @ 6% thereon. 15. Though the counsel for the respondent pressed for granting costs, it is seen that no costs is awarded by the First Appellate Court while passing the decree in his favour. Costs could not be granted in favour of the respondent/plaintiff while allowing this appeal filed by the defendant in part. 16. 15. Though the counsel for the respondent pressed for granting costs, it is seen that no costs is awarded by the First Appellate Court while passing the decree in his favour. Costs could not be granted in favour of the respondent/plaintiff while allowing this appeal filed by the defendant in part. 16. The substantial question of law formulated in this appeal is answered in negative and in favour of the appellant. 17. The learned counsel for the appellant sought reasonable numbers of instalments to liquidate the liability as per the decree. The learned counsel prayed for 12 instalments to liquidate the liability. The learned counsel for the respondent strongly opposed the same. Considering the facts and circumstances of the case, appellant is to be granted 10 monthly instalments to liquidate the liability as per the decree. 18. The learned counsel for the appellant sought a direction to vacate the attachment over the property on payment of the decree amount. The appellant is free to approach the Trial Court in this regard after satisfaction of the decree. 19. Accordingly, I allow this Regular Second Appeal in part, without costs, setting aside the judgments and decrees passed by the Trial Court as well as the First Appellate Court and allowing the plaintiff to recover an amount of Rs.1,00,000/- with interest @ 6% per annum from the date of the suit till realisation. The appellant is granted 10 monthly instalments, starting from 15.04.2025 to liquidate the decree amount. If the appellant makes default of any of the instalments, the respondent is free to execute the decree, ignoring the instalment facility granted by this Court.