Presumption as to consideration mandatory.

The defendant in O.S. No. 77 of 1955 on the file of the Court of the Subordinate Judge of Ramanathapuram at Madurai has filed this appeal challenging the correctness of the decree against him for recovery of the sum of Rs. 6,125-10-9 with interest thereon at 5 per cent. per annum from 16th August, 1955, the date of suit, till payment. The plaintiff, the respondent in this appeal, claimed to be the assignee of a promissory note alleged to have been executed by the defendant and his wife, Kothaiammal in favour of one Ramaswami Raja, the younger brother of the plaintiff, for a consideration of a sum of Rs. 5,500. Kothaiammal was dead and the defendant alone was impleaded as a party to the suit. He denied that either himself or his wife executed the suit promissory note which he characterised as a forged document. He however admitted that on 13th November, 1950 the date of the suit promissory note, he executed a promissory note in favour of Ramaswami Raja for a sum of Rs. 500 and that promissory note was discharged by his executing an othi document in favour of the plaintiff and his brother Chinnaswami Raja wherein the promissory note amount was adjusted and given credit to. The learned Subordinate Judge of Ramanathapuram at Madurai overruled the plea of the defendant and granted a decree in favour of the plaintiff as prayed for. This appeal has therefore been preferred by the aggrieved defendant.

The two simple points that arise for consideration in this appeal are: (1) whether the suit promissory note was not executed by the defendant and his wife, the late Kothaiammal and is therefore a forged document and (2) whether the suit promissory note, if true and genuine, is not supported by consideration, to the extent of Rs. 5,500 stated to have been borrowed by the executants of the note from Ramaswami Raja, the payee on the date of its execution.

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[After dealing with the first point and finding the promissory note to be genuine His Lordship proceeded].

Learned counsel for the respondent submitted that the defendant admittedly maintained accounts and he having failed to produce the same in Court, an adverse inference against the truth of his contention should be drawn by the Court. The evidence of D.W. 2 relating to accounts is as follows:

“I maintain accounts for my dealings for every year. The accounts will show my borrowings and the paddy I got and my other realisations. From 1912 onwards I have been maintaining accounts. I have been maintaining accounts till today. I have mentioned the pro-note in my accounts. From my accounts I say it is 21 months. I have entered the receipt of Rs. 240 in my accounts. I am writing my accounts till today.”

It is however admitted that the plaintiff did not call upon the defendant to produce the accounts into Court. The defendant did not produce them perhaps in the view that the entries therein will only be self-serving statements without any evidentiary value. Unless a party is called upon to produce into Court any documentary evidence in his custody and possession and he fails to produce such evidence deliberately without any adequate or justifying reason the Court should not draw any adverse inference from the mere non-production of such evidence. See Silas Kunwar v. Desraj Ranjit Singh1 where Sir George Farwell observed:

“The High Court Judges attach great significance to the non-production of the books showing the accounts of the general estate, and appear to draw an inference therefrom adverse to the plaintiff’s claim ; any such inference is, in their Lordships’ opinion, unwarranted. These books do not necessarily form any part of the plaintiff’s case; it is of course possible that some entries might have appeared therein relating to the bungalow. But it is open to a litigant to refrain from producing any documents that he considers irrelevant; if the other litigant is dissatisfied it is for him to apply for an affidavit of documents, and he can obtain inspection and production