JUDGMENT :

PRAYER : This Second Appeal is filed under Section 100 of C.P.C., against the judgment and decree dated 02.060.2011 made in A.S.No.4 of 2009 on the file of the Principal District Court, Namakkal, in reversing the judgment and decree, dated 20.04.2009 made in O.S.No.295 of 2008 on the file of the Sub Court, Rasipuram.

1. The successful plaintiff is the appellant herein.

2. For the sake of convenience, the parties are referred to as per the ranking before the trial Court.

3. The plaintiff has filed the suit in O.S.No.345 of 2006 on the file of the Sub Court, Namakkal, later transferred and renumbered as O.S.No.295 of 2008 on the file of the Sub Court, Rasipuram against the respondent herein for recovery of money of Rs.1,00,000/- each, borrowed by him on 18.02.2004, 10.03.2004 and 05.04.2004 respectively, and executed Ex.A1 to Ex.A3, promissory notes in favour of the plaintiff for consideration. After issuing pre-suit notice, dated 15.11.2006, the plaintiff filed the suit for recovery of the suit claim of Rs.4,59,000/- along with subsequent interest.

4. Resisting the suit, the defendant filed written statement inter alia admitting the execution of the suit promissory notes. However, the defendant raised plea that the above mentioned promissory notes had been executed towards security for the loan borrowed, and that the loan due was settled by way of execution of a sale deed, dated 12.11.1999 in the name of the plaintiff's wife. It is further alleged that the suit promissory notes were not supported by consideration and the blank promissory notes were filled up for the purpose of filing the suit in the year 2004. On the above pleadings, the trial Court framed six issues.

5. On the plaintiff's side, the plaintiff has examined three witnesses besides marking Ex.A1 to Ex.A8. On the side of the defendant, DW1 to DW3 were examined besides marking Ex.B1 and Ex.B2. More so, Ex.C1 to C5 and Ex.X1 to X5 were marked at the instance of the respective parties to prove their case.

6. Upon consideration of oral and documentary evidence and also taking note of the admission as to the execution, the trial Court considered the statutory presumption under Section 118 of the Negotiable Instruments Act and the authority of the holder in due course to fill up the promissory notes under Section 20 of the Act, decreed the suit by the judgment and decree, dated 20.04.2009.

7. Aggrieved by the decree of the suit, the defendant filed A.S.No.4 of 2009 before the Principal District Court, Namakkal. First Appellate Court has neither considered the admissions made in the pleadings and evidences nor taken note of the statutory presumptions in favour of the plaintiff, but, erroneously allowed the appeal holding that the thump impression of the defendant was not obtained in Ex.A1 to Ex.A3 and that the signature in each of the promissory notes is different from each other on comparison by a naked eye. Accordingly, lower Appellate Court reversed the judgment of the trial Court and dismissed the suit by the judgment and decree, dated 02.06.2011. Being aggrieved by the reversal findings of the first Appellate Court, the plaintiff filed this second appeal before this Court and the plaintiff had the benefit of an order of attachment before judgment in I.A.No.42 of 2007 in O.S.No.295 of 2008.

8. The above second appeal is admitted on the following Substantial Questions of Law :

“1. Whether the first Appellate Court erred in law in not considering the scope of Section 118 of the Negotiable Instruments Act and the legal presumptions arising under it before dismissing the suit by reversing the well considered reasonings of the trial Court?

2. Whether the first Appellate Court erred in law in rejecting the plaintiff's right to fill up the suit promissory notes under Section 20 of the Negotiable Instruments Act whereupon the holder is authorized to fill up the blanks and to negotiate the instrument for a certain amount?

3. Whether the first Appellate Court is correct in dismi