Plaintiff is entitled to fill up promissory note when defendant has failed to let in contra evidence.

(Second appeal under Section 100 CPC against the decree and judgment dated 28.04.2004 made in A.S. No. 29 of 2002 on the file of the learned Additional District Judge, Fast Track Court II, Kancheepuram, confirming the decree and judgment, with a slight modification, dated 28.02.2002 made in O.S. No. 179 of 1997 on the file of the Subordinate Judge, Kancheepuram.)

The unsuccessful defendant, who lost the case before the courts below, is the appellant herein. The respondent herein has filed a suit in O.S. No. 179 of 1997 for recovery of Rs.50,000/- based on a pronote dated 22.10.1994 and the same was decreed. The appeal preferred by the appellant herein before the Additional District Judge, Fast Track Court No.2, Kancheepuram in A.S. No. 29 of 2002 was also dismissed, hence, the present second appeal.

2. This second appeal has not been admitted and it stands at the stage of 'notice of motion' and now it is taken up for final disposal. For the sake of convenience, the parties to the proceedings shall be referred according to their rank in this second appeal.

3. The case of the respondent herein is that the appellant borrowed a sum of Rs.50,000/- from him and executed a pronote, Ex.A2 dated 22.10.1994, agreeing to repay the said amount with interest at the rate of 36% per annum. The said amount was paid by way of cash by the respondent. The appellant is a rice mill owner, who borrowed the said loan for his business. Inspite of repeated demands made by the respondent, the appellant did not pay the amount, hence, notice dated 22.05.1997, Ex.A3 was issued. The appellant had received the same which is evident from Ex.A4. Even after receipt of the said notice, the appellant has not paid any amount and hence the suit was filed.

4. The case of the appellant herein is that the respondent was running a chit fund in which appellant had subscribed some chits and availed chit amount in the beginning, before making the payments, the respondent insisted him to execute pronotes towards security for repayment of the balance chit instalments and obtained appellant's signature not only in the suit pronote but also in other three pronotes; that after the discharge of the chit amount, though the appellant requested the respondent to return the pronotes, he did not return them on the ground that the pronotes were in the custody of his partner Sampath and one of the said pronotes was used for filing this vexatious suit.

5. Before the trial court, the respondent examined himself as PW1 and marked Ex.A1 to A4, in which Ex.A2 dated 22.10.1994 is the suit pronote; Ex.A1 is the signature of the appellant found in the said pronote; Ex.A3 is the notice issued by the respondent through his lawyer calling upon the appellant to pay the outstanding amount and Ex.A4 is the acknowledgment. The appellant examined himself as DW1 and marked Ex.B1 dated 27.05.1997 which is the reply notice to Ex.A3. Ex.B2 is the acknowledgment of the respondent.

6. PW1 deposed before the trial court that on 22.10.1994, the appellant herein borrowed a sum of Rs.50,000/- and executed the suit pronote. The appellant in his evidence has stated that the suit pronote and other pronotes were executed as security for repayment of the chit amount payable by him to the respondent who was conducting the chit unauthorisedly and that though the amount payable towards the chit was in fact fully paid, the respondent has not returned the pronotes, including the suit pronote, executed by him.

7. Considering the oral and documentary evidence on both sides, the trial court came to the conclusion that even assuming that the suit pronote was executed as security for repayment of the chit amount and when according to the appellant the entire chit amount was paid as early as in the year 1993, the appellant has not chosen to call upon the respondent to return the said pronotes; that even in Ex.B1, the appellant has not stated that the entire chit amount payable by him to the respondent herein had been di