The burden of proof lies on the defendant to refute the existence of a promissory note, and failure to provide evidence to support claims can lead to dismissal of the appeal

1. This second appeal is filed against the judgment and decree dated 25.06.2001 made in A.S.No.18 of 2000 on the file of Principal Sub-Court, Gobichettipalayam, confirming the Decree and Judgment dated 22.07.1999 made in O.S.No.440 of 1994 on the file of District Munsif Court, Gobichettipalayam.

2. For the sake of convenience, the defendant in the original suit is referred as appellant and the plaintiff in the suit is referred as respondent hereafter.

3. The respondent/plaintiff filed a suit for payment of Rs.9225/- with future interest on Rs.9000/-. Briefly the case of the respondent is that the appellant borrowed a sum of Rs.9000/- from the respondent on 20.05.1994 and executed a promissory note in favour of the respondent agreeing to pay the same to the respondent or to his order on demand with interest at Rs.1.50 per month per one hundred. The appellant has not paid the above said amount and hence the suit.

4. The appellant/defendant filed a written statement in which, it is denied the fact that the respondent borrowed a sum of Rs.9000/- from the respondent on 20.05.1994 and executed a promissory note and agreeing to repay the interest at Rs.1.50 per month per hundred. The appellant has never executed any promissory note in favour of the respondent and did not received any amount from the respondent. The empty pro-note with only signature of the appellant given to one Gopal should have been used in this suit as a pro-note. The appellant also denied that the respondent has demanded the amount and the appellant has not paid the amount and no cause of action for the suit. Therefore, prayed for dismissal of the suit with compensatory costs.

5. The trial court has framed two issues from the above pleadings. On the side of the respondent/plaintiff two witnesses were examined as PWs 1 and 2 and marked one document as Ex.A1. On the side of the appellant/defendant appellant alone deposed as DW1 and not marked any document.

6. The trial court has considered the above said oral and documentary evidence adduced on either side and decreed the suit as prayed for by the respondent/plaintiff.

7. Aggrieved over the above said findings of the trial court, the appellant/defendant preferred the first appeal in A.S.No.18 of 2000 and the first appellate court discussed in detail and finally confirmed the judgment and decree passed by the trial court and dismissed the first appeal.

8. Aggrieved over the above said concurrent findings of both the courts below, the appellant, who is defendant in this suit preferred this second appeal.

9. This Court has admitted the second appeal on the following substantial question of law for consideration:

" Whether the authority given to a person, to whom a duly signed inchoate instrument is delivered, would include the authority to fill up the name of the payee ?"

10. Heard the learned counsel appearing on either side and perused the records.

11. The learned counsel appearing for the appellant has mainly contended that in Ex.A1 promissory note dated 20.05.1994, alleged to have executed by the appellant in favour of the respondent is vitiated on the ground of material alteration since the name of the promisee and the amount lent in the promissory note in Ex.A1 were altered.

12. Per contra, the learned counsel appearing for the respondent would submit that the appellant has clearly admitted the signature found in Ex.A1 pro-note. Further, the learned counsel pointed out that on the side of the respondent, the respondent himself deposed as PW1 and also examined one Nagendiran as attesting witness to prove the document Ex.A1 pro-note as PW2 and both the courts below have correctly considered the oral and documentary evidence and came to correct conclusion that Ex.A1 pro-note was proved as genuine document and decreed the suit. The learned counsel for the respondent further submitted that except oral interested testimony of the appellant, no other oral and documentary evidence to prove that the respondent has given a