Plaintiff whether entitled to recover on the footing of note being supported by consideration.

JUDGMENT. — The plaintiff who had lost in the Courts below is the appellant in this Second Appeal. The suit was laid by him for the recovery of a sum of Rs. 3,200 on the basis of a promissory note, Exhibit A-1, dated 23rd July, 1970 for a sum of Rs. 2,860. Since the respondent did not make any payment towards the promissory note, the appellant sent a registered notice Exhibit A-2 on 30th June, 1972, demanding the amounts due under the promissory note. The respondent herein sent a reply under Exhibit A-3, dated 3rd July, 1972, admitting the execution of the promissory note and at the same time setting out the circumstances under which the promissory note came to be executed. Since the amount was not paid in spite of the demand by the appellant, the appellant instituted the suit O.S. No. 714 of 1972 on the file of the District Munsif’s Court, Periyakulam, for the recovery of the amounts due under the pro-note.

2. The respondent, in his written statement, admitted the execution of the promissory note sued upon, but contended that though he had usufructuarily mortgaged the properties for Rs. 3,500 in favour of the appellant, it was agreed that the respondent should continue to cultivate the properties, and in lieu of that interest at the rate of 24 per cent. per annum should be paid and a lease deed to this effect was also executed by the respondent and as the interest was not paid by the respondent the promissory note was executed by him towards interest.

3. The learned District Munsif, Periyakulam who tried the suit held that in view of the admission of execution of the promissory note by the respondent it was the duty of the respondent to establish that the suit promissory note is not supported by consideration. In dealing with this aspect of the matter, the learned District Munsif, entered into an unnecessary discussion with reference to the improbabilities attendant upon the advance of moneys under Exhibit A-1 but ultimately, he was of the view in paragraph 6 of his judgment, “the suit promissory note should have been executed only for the interest for the amount due on the mortgage deeds admittedly executed by the respondent in favour of the appellant”. Having stated this, the learned District Munsif proceeded to consider the circumstances that there was an earlier occasion when a similar promissory note in respect of the interest due on the mortgage was admittedly executed by the respondent in favour of the appellant under Exhibit B-1, dated 22nd February, 1969, which according to the learned District Munsif, was further proof of the stand of the respondent that the appellant used to get promissory notes for interest due on mortgage amounts. Having thus held, the District Munsif examined the evidence of the scribe and purporting to accept his evidence to the effect that no consideration passed, the learned District Munsif finally concluded that “the suit promissory note was executed only for the interest for the mortgage amount”. After having found all this the learned District Munsif dismissed the suit.

4. Against this the appellant preferred an appeal A.S. No. 224 of 1972, before the Subordinate Judge, Dindigul. Before the Subordinate Judge, Dindigul, the judgment of the trial Court was challenged mainly on two grounds. Firstly, it was urged that having regard to the admission of the execution of the promissory note, the respondent had not satisfactorily established that the promissory note is not supported by consideration especially in the face of the finding of the trial Court that the promissory note represents interest due on the mortgages executed by the respondent in favour of the appellant. Secondly, it was contended before the lower appellate Court that since the promissory note represented interest on the mortgages the appellant was entitled to recover the same, though the promissory note had recited the passing of cash consideration. The learned Subordinate Judge, Dindigul, took into account the circumstances that

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