The burden of proof on the plaintiff to establish consideration for the promissory note and the standard of proof required in cases involving the genuineness of signatures and endorsements.

JUDGMENT :

Prayer: Second Appeal is filed under Section 100 of C.P.C, to set-aside the judgment and decree dated 28.10.2009 made in A.S.No.28 of 2009, on the file of the Principal Subordinate Court, Gobichettipalayam, Erode & district confirming the judgment and decree dated 30.01.2009 made in O.S.No.66 of 2005, on the file of the District Munsif Court, Sathyamangalam, Erode & District.

1. This second appeal has been preferred against the judgment and decree passed in A.S.No.28/2009, on the file of Principal Subordinate Court, Gobichettipalayam, Erode & district and dated 28.10.2009 in confirming the judgment and decree made in O.S.No.66/05, on the file of the District Munsif Court, Sathyamangalam, Erode & District.

2. The defendant is the appellant. The short facts of the plaintiff's case is that on 29.12.1997 the appellant/ defendant borrowed a sum of Rs. 76,500/- from the plaintiff for his personal expenses and executed a promissory note in her favour. He agreed to pay an interest @ 12% p.a. and repay the principal and interest as and when demanded. On 20.12.2000, the defendant made a part payment of Rs.10,000/- and made an endorsement on the backside of the empty promissory note. Thereafter, the defendant did not pay any amount despite several demands made by the plaintiffs. The plaintiff issued a pre-suit legal notice on 02.07.2001. The defendant received the notice, but did not pay the amount. Hence the plaintiff has filed this suit for recovery for a sum of Rs.99,981.50 which being the principal and interest due to the plaintiff along with subsequent interest and cast.

3. The short facts of the written statement of the defendant is that he did not borrow a sum of Rs.76,500/- and executed the suit promissory note. He neither made a part payment of Rs.10,000/- on 20.12.2000 as alleged by the plaintiffs. The suit is barred by limitation. Hence the endorsement has been forged just in order to save limitations. Since the suit promissory note is a forged one, he did not opt to send any reply. The plaintiff’s husband is known to the defendant and he borrowed a sum of Rs.10,000/- from him in the year 1994. In any event, the plaintiff's husband got an empty signed promissory note from the defendant and now that has been concocted for this case. There is no cause of action for the suit and the plaintiff is not entitled to the relief as prayed for.

4. During the course of trial, the plaintiff examined 2 witnesses and marked 4 documents as Ex.P1 to P4. On the side of the defendant 2 witnesses have been examined and no document has been marked.

5. After the completion of the trial the learned Trial Judge has decreed the suit in favour of the plaintiff. Aggrieved over the same the defendant has filed a first appeal and the first appeal was dismissed. Hence this defendant has filed this second appeal before this Court and the second Appeal has been admitted on the following substantial questions of law:

“(1) Whether the lower appellate Court has committed an error in law in drawing an adverse inference regarding the Ex.A2- endorsement found in the suit promissory note on the ground that no reply was sent to the notice issued by the respondent/plaintiff?

(2) Whether the finding of the Courts below regarding proof of Ex.A1-suit promissory note can be stated to be perverse in the light of the admission made by PW.1 that the pronote was executed by the appellant/defendant in favour of the husband of the respondent/plaintiff?”

6. It is seen from the judgment of the trail court that the trial court has framed specific issues as to the genuineness of the suit promissory note and the endorsement alleged to have been made by the appellant on 20.12.2000 by making a part payment of Rs.10,000/-. Though the appellant has not admitted his liability, he has admitted that he has given a signed empty promissory note in favour of the plaintiff’s husband. The contention of the appellant is that the said promissory note has been misused by the plaintiff for the p