The execution of a Promissory Note is sufficiently proved by witness testimony, and non-production of accounts is not fatal to the plaintiff's case.

JUDGMENT :

PRAYER: Second Appeal is filed under Section 100 of the Code of Civil Procedure, 1908 praying to set aside the Judgment and Decree dated March 28, 2017 passed in A.S.No.23 of 2015 on the file of Principal District Court, Namakkal, reversing the Judgment and Decree dated April 10, 2015 passed in O.S.No.154 of 2005 on the file of Subordinate Court, Namakkal.

This Second Appeal is directed by the unsuccessful defendants before the First Appellate Court, against the Judgment and Decree dated March 28, 2017 passed in A.S.No.23 of 2015 on the file of ‘Principal District Court, Namakkal’ [‘First Appellate Court’ for short], whereby the Judgment and Decree dated April 10, 2015 passed in O.S.No.154 of 2005 on the file of ‘Subordinate Court, Namakkal’ ['Trial Court' for short] was reversed.

2. Hereinafter, for the sake of convenience, the parties will be denoted as per their array in the Original Suit.

Plaintiff’s Case in Brief:

3. In the Plaint, the plaintiff has averred that the defendants, who are husband and wife, borrowed a sum of Rs.1,00,000/- with interest at the rate of 24% per annum, for their family and business expenses on May 29, 2002, by executing a Promissory Note. On July 2, 2002, they paid Rs.4300/- towards principal and Rs.1,200/- towards interest. Thereafter, despite repeated demands, they failed to pay the dues. Hence the Suit for recovery of sum of Rs.1,61,776/- along with subsequent interest on the principal sum of Rs.95,700/-.

Defendants’ Case in Brief:

4. The first defendant filed written statement and the same was adopted by second defendant. The defendants deny that they borrowed a sum of Rs.1,00,000/- with interest at the rate 24% per annum, for their family and business expenses on May 29, 2002, by executing a Promissory Note. They deny the alleged payment made on July 2, 2002. The first defendant is working as a conductor in Tamil Nadu State Transport Corporation and the second defendant is working in Block Development Office. Both being in government jobs, there is no need to borrow money from the plaintiff. The signatures and the thumb impressions found in the Suit Promissory Note are not those of the defendants. Further, the Court Fee paid is incorrect. Accordingly, they prayed that the Suit shall be dismissed.

Trial Court:

5. At Trial, on the side of the plaintiff, P.W.1 and P.W.2 were examined and Ex-A.1 was marked. On the side of the defendants, the first defendant was examined as D.W.1 and no document was marked.

5.1. Upon hearing both sides and considering the oral and documentary evidence, the Trial Court concluded that execution of Ex-A.1- Promissory Note and the passing of consideration are not proved by the plaintiff. Accordingly, dismissed the Suit without costs.

First Appellate Court:

6. Aggrieved by the Judgment and Decree passed by the Trial Court, the plaintiff approached the First Appellate Court by way of an appeal under Section 96 of the Code of Civil Procedure, 1908 ['CPC' for short]. The First Appellate Court upon hearing both sides and analysing the oral and documentary evidence, concluded that the evidence of P.W.1 and P.W.2 prove the execution of Ex-A.1 - Promissory Note; and that the Trial Court wrongly understood the concept of burden of proof and dismissed the Suit without appreciating the evidence in the right perspective. Accordingly it allowed the appeal, set aside the Judgment and Decree of the Trial Court and decreed the Suit.

Substantial Questions of Law:

7. Aggrieved with the Judgment and Decree of the First Appellate Court, the defendants preferred this Second Appeal and the same was admitted on December 6, 2018 on the following Substantial Questions of Law:

“(a) Whether Lower Appellate Court is correct in law in allowing the appeal without reversing the finding given by the Trial Court on the various issues?

(b) Whether the Lower Appellate Court is correct in law in allowing the appeal without reversing the finding of the Trial Court regarding the evidence of PW2 and the accoun