The plaintiff must prove the foundational fact of execution of promissory notes to claim the benefit of presumption under Section 118 of the Negotiable Instruments Act.

JUDGMENT

(Prayer: Appeal Suit filed under Section 96 of C.P.C., against the judgment and decree, dated 26.08.2011, made in O.S.No.63 of 2008, on the file of the Principal District Court, Dindigul.)

Dr. G. Jayachandran & C. Kumarappan, JJ.

1. The Appeal is directed against the dismissal of the money suit instituted based on pronotes. The aggrieved plaintiff being the appellant has also filed the Miscellaneous Petition under Order 41 Rule 27 of C.P.C. to receive additional documents.

2. The facts canvassed in the pleadings:-

2.1. Plaint averments after amendment read as under:-

(i) T.E.Joseph (deceased) borrowed a sum of Rs.9,50,000/- from the plaintiff on 01.10.2005 to meet out his family expenses and business expansion and executed a pronote agreeing to repay on demand the principal with 1% interest per mensem. Again, on 15.10.2005, borrowed another sum of Rs.9,50,000/- with similar promise and executed an another pronote. The defendants are the wife and children of the deceased T.E.Joseph. They are aware of the borrowing and execution of the two pronotes in favour of the plaintiff. The said Joseph, in order to discharge the loan with interest gave a cheque, dated 03.04.2007, bearing No.74/S.F.346263, drawn from his account, maintained in Lakshmi Vilas Bank, C.Pudupatti Branch, for a sum of Rs.22,00,000/-, drawn in favour of the plaintiff and instructed to present the cheque on 09.08.2007. Accordingly, when the plaintiff presented the cheque for collection through his bank viz., M/s.Canara Bank, Dindugul Branch, the same was returned on 31.08.2007 with an endorsement ''Account Dormant''. Hence, the plaintiff caused a notice dated 20.09.2007 to T.E.Joseph informing about the return of the cheque and to pay the cheque amount within 15 days. The said notice returned unserved with postal endorsement informing that the addressee (Joseph) died.

(ii) The 1stdefendant is the wife of Joseph. The defendants 2 to 7 are his children. These defendants as legal heirs of the said Joseph, had inherited the moveables and immovable properties of late T.E.Joseph. As such, they are liable to discharge the debt of Joseph. Hence, notice was caused to them, calling upon to discharge the pronote debt along with interest. The 1st defendant received the notice, but did not reply. The notice sent to defendants 3, 4 and 5 returned as ''Left India''. The notice sent to defendants 2, 6 and 7 returned with postal endorsement ''not claimed''. Stating the above facts as causes for action, suit for recovery of Rs.24,49,733/- was filed.

2.2. Written Statement by the 1st  defendant:-

(i) The plaint averments are denied. The suit is not maintainable and the plaint lack cause of action. It is admitted that the defendants are legal heirs of T.E.Joseph. The plaint averment that Joseph borrowed loan from the plaintiff to meet out the family expenses and executed the suit pronotes at the residence of the plaintiff is denied. There was no necessity for Joseph to borrow money and also the plaintiff had no wherewithal to lend money. Joseph was ill for few days and died on 20.04.2007. It is false to claim that he gave the cheque dated 03.04.2007 for Rs.22,00,000/- to discharge the loan. There is no necessity to instruct the plaintiff to present the cheque on 09.08.2007. The said averment in the plaint exposes the falsehood of the plaintiff.

(ii) The plaintiff and the deceased Joseph had business dealing in respect of cardboard box supply. Since the goods supplied by the plaintiff was sub-standard, the business relationship was terminated and accounts were settled long back. Despite that, the plaintiff was indulging in third decree method and threatening the defendants. Hence, Police complaint was lodged against the plaintiff, which was enquired by the Police. The suit is filed with distorted facts and hence, liable to be dismissed.

2.3. The written statement by 4th  defendant:-