The burden of proof lies with the defendant to establish the absence of consideration for a promissory note. Compliance with court orders and conduct during the pendency of a suit can influence the court's decision.

SWATANTER KUMAR, J.

( 1 ) AGGRIEVED from the judgment and decree passed by the learned Additional district Judge, Delhi, the appellant has filed the present Regular First Appeal. The appellant (defendant in the suit), had filed an application for leave to defend under the provisions of Order 37 (3) (5) of the Code of Civil Procedure which was disposed of vide order dated 2. 2. 1999 wherein he was granted conditional leave to defend and was directed to deposit the amount in court within one month. The appellant failed to discharge this condition and filed a revision in this Court where earlier an order was passed granting interim stay in favour of the appellant. However, the stay was subsequently vacated and the revision itself was dismissed. In other words, the appellant did not comply with the condition of deposit of the amount, which finally resulted in the passing of the impugned decree.

( 2 ) THE respondent herein filed a suit under the provisions of Order 37 of the Code of Civil Procedure for recovery of Rs. 1,47,400/- with interest. According to the respondent he had advanced a sum of Rs. 1,10,000/- to the appellant for purchase of a land. The defendant executed a promisory note and receipt on 14. 6. 1995. In terms of the document executed the amount was repayable with interest @ 12% per annum. Since the appellant failed to repay the amount and interest in respect thereof and a notice having been served by the respondent upon the appellant, the respondent filed a suit for recovery of rs. 1,10,000/- being the principal and Rs. 37,400/- on account of interest. As at the relevant time, the Revision was pending with the High Court, the learned trial Court framed the following issues:-

1]. Whether the Promisory Note, admitted by the defendant, was executed without consideration? 2]. Whether the plaintiff is entitled to the amount claimed by him? 3]. Relief. ?

( 3 ) WHILE questioning the correctness of the findings recorded by the learned Trial Court on the above issues, the learned counsel for the appellant while addressing the Court on 11. 1. 2007 contended that the finding is perverse on the face of it and is not supported by evidence on record. According to the learned counsel the dismissal of the Revision Petition by the Court being a dismissal in default would be of no consequence and the decree is liable to be set aside. However, we may also note that on 12. 1. 2007, when the matter was taken up for hearing, the learned counsel appearing for the appellant had not argued the matter as the main Counsel was not available despite the matter having been passed over.

( 4 ) ISSUE no. 1 as framed by the Court itself shows that the execution of the pronote was admitted, however, the consideration was disputed. According to the respondent he had advanced the sum of Rs. 1,10,000/- to the appellants for the purposes of purchasing a house. Execution of the pronote was admitted by the appellants even under his statement recorded under Order 10 Rule 2 of the code of Civil Procedure on 1. 9. 1999 and was consequently exhibited as Ex. DW1/1. Once the document was executed, the learned Trial Court has rightly come to the conclusion that the burden to prove that the same was without consideration was upon the defendants. The defendant failed to discharge the onus. The Sale Deed vide which the appellant purchased the property was exhibit DW1/5. Not only this the respondent who appeared in the witness box as DW1 deposed that he had served a notice Ex. PW1/1 upon the appellants to which making such averments prior to the institution of the suit but the said notice was also not responded to. The factum of receiving the notice was admitted in his statement, however subsequently, the contention raised on behalf of the appellant was that no notice was received by him. The presumption under Section 118 of the Negotiable instruments Act is in favour of Ex. DW1/1 particularly when the execution of the said pronote was admitted. The appellant fail