The mere execution of an agreement does not establish its contents or consideration; the plaintiff bears the burden to provide evidence, differing significantly from provisions concerning negotiable instruments.

JUDGMENT :

Sathish Ninan, J.

The suit for money under Ext.A1 agreement was decreed by the trial court. The defendant is in appeal.

2. According to the plaintiff, he and the defendant were known to each other and were friends. The defendant borrowed a total amount of Rs. 30 lakhs from him on various occasions as hereunder :-

Thereafter, Ext.A1 agreement dated 23.10.2007, was executed by the defendant in his favour, agreeing to repay the amount. The defendant had also handed over two post dated cheques for Rs. 15 lakhs each. The cheques when presented were dishonoured as “payment stopped by the drawer”. Independent proceedings have been initiated on the dishonoured cheques. The suit is filed on Ext.A1 agreement, for realisation of Rs. 30 lakhs with interest.

3. The defendant denied of having had any acquaintance or transactions with the plaintiff. The averment that the plaintiff and the defendant were known to each other was also denied. The alleged borrowal, execution and issuance of Ext.A1 agreement and the cheques were also denied. It was contended that, under a ploy by the plaintiff, one Assoo Mayan and one Unneethu, the defendant was caused to issue blank signed stamp papers and blank signed cheques under threat and at gun point. Ext.A1 has been fabricated on such stamp paper.He prayed for dismissal of the suit.

4. The trial court held that the execution of Ext.A1 agreement has been proved and that the defendant has failed to substantiate his case. Accordingly the suit was decreed.

5. We have heard learned counsel on either side.

6. The points that arise for determination are:-

(i) Has the plaintiff proved the due execution of Ext.A1 agreement and that it is supported by consideration?

(ii) Did the trial court err in holding that, the execution of Ext.A1 agreement having been proved, unless the defendant proves his case, the plaintiff is entitled for a decree?

(iii) Does the decree and judgment of the trial court warrant any interference?

7. Before we proceed to discuss on the facts and evidence in the case, we deem it relevant to remind ourselves that, the suit is laid upon Ext.A1 agreement and not on a negotiable instrument. In a claim on a negotiable instrument, on proof of its execution, Section 118 of the Negotiable Instruments Act comes into play and there arises a presumption that the instrument is supported by consideration. Then it is for the defendant to rebut the presumption. However, when the suit is not upon a negotiable instrument but upon an agreement, the mere proof of its execution does not entail in any presumption regarding consideration or truth of the contents. Mere proof of execution of a document does not amount to proof of the contents and the truth of the recitals therein. This cardinal distinction is not to be overlooked.

8. In Ramji Dayawala and Sons (P) Ltd. v. Invest Import [(1981) 1 SCC 80], the Apex Court held :-

“..... Undoubtedly, mere proof of the handwriting of a document would not tantamount to proof of all the contents or the facts stated in the document. If the truth of the facts stated in a document is in issue mere proof of the handwriting and execution of the document would not furnish evidence of the truth of the facts or contents of the document. The truth or otherwise of the facts or contents so stated would have to be proved by admissible evid