Presumption about genuineness of promissory not cannot be held absolute.

JUDGMENT: The successful plaintiff before the trial Court, having failed to sustain the success before the First Appellate Court has come to this Court as appellant, for the restoration of the decree obtained by him in O.S.No.211 of 1989 on the file of the District Munsif Court, Thiruchengode.

2. The plaintiff/appellant moved the trial Court seeking a money decree on the basis of a promissory note dated 17.8.1986, for a sum of Rs.10,000, which contemplates interest also, contending that the same was executed by the defendant for consideration, despite issue of notice, the defendant, who is not entitled to the benefits of any debt relief Act, has failed to repay the same and therefore, a decree should be granted for the recovery of the amount.

3. The respondent/defendant questioning the genuineness of the suit promissory note and alleging that he had no direct money transaction with the plaintiff and in a way disputing the signature and thumb impression in the suit promissory note, disputed the liability; further contending that there was chit transaction between the parties and on one occasion, he became the prized subscriber, where he had affixed his thumb impression and signature in several blank promotes, to ensure prompt repayment of the instalment and if at all that should have been used, because of the fact this defendant intervened on behalf of his brother demandirig the plaintiff and Ramakrishnan to discharge the promissory note under which the plaintiff and one Ramakrishnan had borrowed the some amount from his brother.

4. The learned District Munsif, Thiruchengode, considering the rival contentions as well as the oral evidence of P.W.l and D.W.1 supported by respective exhibits, took the view that Ex.A-1 is the promissory note executed by the defendant, for the consideration of Rs.10,000, agreeing to pay the same with interest thereon, but failed to repay the same despite demand. By taking this view, the suit came to be decreed on 9.4.1991, under which the defendant was directed to pay the suit claim with subsequent interest and cost, which was challenged by the respondent/defendant before the Second Additional District Judge, Salem in A.S.No.139 of 1992.

5. The learned II Additional District Judge, considering the submissions made by either counsel as well as mainly relying upon Ex.B-4, came to the conclusion, that the suit promissory note was not supported by consideration, whereas it has come into existence, without consideration, during the chit transaction, in which the defendant had participated in the chit and became successful bidder. In this view, unable to agree with the case of the plaintiff, as well as the reasonings assigned by the trial Court, the First Appellate Court, upset the finding of the District Munsif, thereby allowing the appeal, dismissed the suit with cost, which is under challenge in this appeal.

6. While admitting the second appeal, this Court had formulated the following substantial question of law, for consideration:

"Whether the lower appellate Court was justified in reversing the judgment of the trial Court, especially when the plea of the defendant in Court was contrary to the written statement and prima facie Ex.D-4 is of doubtful origin, and hence the approach of the appellate Court on this score had resulted in grave miscarriage of justice?"

7. Heard the learned counsel for the appellant, Mr.V.Srikanth and the learned counsel for the respondent, Mr.S.P.Subramaniam.

8. Ex.A-1 is the promissory note dated 17.8.1986 said to have been executed by the defendant in favour of the plaintiff, for a sum of Rs.10,000, agreeing to repay the same with interest thereon, on demand. As evidenced by Ex.A-2, on 17.3.1989, the plaintiff demanded the amount due under Ex.A-1 through lawyer’s notice, which instead of realising the amount, elicited a reply dated 8.5.1989 (Ex.B-2). Thus, the plaintiff/appellant unable to realise the amount outside the Court, moved the forum, obtained a decree, which was upset by

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