Execution of promissory note admitted by defendant.

Plaintiff in O.S. No.53 of 1984, on the file of Subordinate Judge’s Court, Ariyalur, is the appellant.

2. Suit filed by the appellant was open for recovery of amount on the basis of a promissory note executed by the defendant. Ex.A-1 is the promissory note which says that the defendant has borrowed a sum of Rs. 15,000 on 112. 1978. It further says that the defendant shall repay the same on demand with interest at 12% per annum. It is dated 112. 1978. On 112. 1981, in part payment of the amount due, and acknowledging the liability, a sum of Rs. 100 was paid. When the amount was not paid in time, notice was issued under Ex.A-3, which was received by the defendant. But the defendant neither sent a reply nor settled the transaction. The suit was, therefore, filed for recovery of the amount due on the promissory note. In the written statement filed by the defendant, he admitted the execution of the promissory note. He said that the statement in the promissory note that he received Rs. 15,000 is not correct. According to him, he received only Rs.5,000, and in respect of Rs. 10,000, the document is not supported by consideration. He further contended that when he received the suit notice, a Panchayat was held and the plaintiff agreed to receive Rs.5,000 with subsequent interest. Thereafter plaintiff changed his mind and filed the suit. He has further said that he is willing to pay Rs.5,000 and is also prepared to prove that the document is not supported by consideration to the extent of Rs.10,000.

3. On the above pleadings, parties went on trial.

.4. On the side of the appellant, Exs.A-1 to A-5 were marked, and plaintiff got himself examined as P.W. 1. Defendant examined himself as D.W.1, and two other witnesses were examined. No document was filed on his side. Trial court held that the plaintiff is entitled to succeed as prayed for. The suit was decreed. While holding that the plaintiff is entitled to succeed, the trial court held that once the defendant has admitted execution of the promissory note, the failure of consideration is a matter for proof by the defendant. The trial court further found that the evidence of D.Ws.2 and 3 cannot be believed, and, at any rate, they are interested witnesses. So holding, the suit was decreed as prayed for.

5. Aggrieved by the judgment, defendant preferred A.S. No.59 of 1986, on the file of District Judge, Tiruchirapalli. The lower appellate court modified the decree of the trial court. It came to the conclusion that the plaintiff is entitled to a decree only for a sum of Rs.5,000 with interest thereon at 9% per annum from the date of promissory note till date of suit, and thereafter at 6% per annum, with proportionate costs. The lower appellate court was of the view that the evidence of D.Ws.2 and 3 is sufficient to disbelieve the case of the plaintiff. It was also found by the lower appellate court that there were prior dealings between plaintiff and defendant, and plaintiff had already obtained two decrees against the defendant and the matter was pending execution.

6. It is against the said judgment, plaintiff has preferred this second appeal.

.7. At the time of admission of the second appeal, the following substantial question of law was raised for consideration:

."Whether the lower appellate court was right in overlooking that the presumption under Sec.118 of the Negotiable Instruments Act had not been rebutted by the defendant in a manner known to law?"

8. When the matter was heard by me, I found that the question of law raised at the time of admission alone will not be sufficient for final disposal of the second appeal and, therefore, the following substantial question of law was also formulated at the time of hearing of this second Appeal, and learned counsel advanced arguments on the same:

"Whether the defendant is entitled to plead and adduce evidence against the terms of the written contract, i.e., pronote Ex.A-1, and whether the same is barred under Sec.92 of the E