The plaintiff's duty to establish the claim and discharge the onus of proof in a loan transaction case.

1. This Second Appeal has been preferred by the defendants 2 and 3 in O.S.No.195 of 2001 which was decreed by the learned Subordinate Judge, Padmanabhapuram, which has been upheld by the learned District Judge, Kanyakumari at Nagercoil in A.S.No.42 of 2005 which was preferred by the defendants 2 and 3.

2. The respondent, namely, Thangamoni instituted the suit in O.S.No.190 of 2001 in the court of the learned Subordinate Judge, Padmanabhapuram, alleging that the first defendant, namely, Vijayakumar has borrowed Rs.1½ lakhs from him one month before 25.03.1997 and he had agreed to repay the amount on 25.03.1997 and he had issued Ex.A.1 cheque to the respondent for the said amount. Since the cheque was dishonoured under Ex.A.2 by the Banker the respondent issued Ex.A.3 and A5 notices which were received by the first defendant. There was no reply. No money. In the circumstances, the respondent instituted the said suit.

3. The first defendant resisted the suit by filing written statement contending that he has not borrowed any money as stated by the plaintiff and it was a blank cheque, it has been forged.

4. When the suit was pending, the first defendant had passed away. His wife, namely, Sindhu and her son Jinthu were impleaded as defendants 2 and 3 in the suit and the second defendant had filed an additional written statement reiterating her late husband's contentions.

5. In the circumstances, the trial court after framing necessary issues took up the suit for trial. During the trial, plaintiff examined himself as P.W.1 and one Sunderraj as P.W.2 and produced documentary evidence Exs.A1 to A6. The second defendant examined himself as D.W.1 and her brother Xavier Singh as D.W.2 and also marked Exs.D.1 and D.2.

6. Appreciating the evidence the trial court concluded that advancing of the loan has been proved and the cheque Ex.A.1 has been issued by the first defendant and thus decreed the suit as against the defendants 2 and 3 to pay out of the estate of the deceased first defendant with 12% interest upto the date of filing of the suit and thereafter, 6% subsequent interest till realization.

7. Aggrieved, defendants 2 and 3 have appealed in A.S.No.42 of 2005 to the learned District Judge, Kanyakumari District at Nagercoil.

8. The appellants have contended that the borrowal has not been proved. However, analyzing the evidence the first Appellate Court upheld the decree and judgment of the trial court and dismissed the appeal.

9. Aggrieved, defendants 2 and 3 have filed this Second Appeal.

10. In the Second Appeal, the following substantial questions of law were framed:

1. Whether the reasoning of the courts below is perverse for holding that the plaintiff had the means to advance the suit loan amount to the deceased defendant?

2. Whether the plaintiff discharged the burden of proof cast on him to establish the suit transaction?

11. According to the learned counsel for the appellants that it is a primary duty and onus of the plaintiff to prove that he had lend money to first defendant, however, he did not discharge this burden. This vital aspect has been overlooked by both the courts below and have misread the evidence.

12. On the other hand, the learned counsel for the respondent would contend that the loan transaction and passing of consideration has been established by the respondent by adducing oral and documentary evidence. In the circumstances, both the courts below have rightly decreed the suit.

13. It is a suit for recovery of money. But actually it is not a suit based on any promisery note. The suit proceeded on lending of money evidenced by Ex.A.1 cheque. Therefore, it is not a suit based on any negotiable instrument. It is a suit based on original cause of action, namely, money lend, paid and received. Therefore, the principles relating to negotiable instrument such as promisery note etc. will not apply to this case.

14. The respondent/plaintiff is a suitor. He came to the court making a money claim alleging certain factual aspect