The presumption of consideration under Section 118 of the Negotiable Instruments Act is rebuttable, and the defendant can discharge the burden of proof by demonstrating the improbability of consideration.

JUDGMENT :

R.SUBRAMANIAN, J.

Prayer : Appeal filed under Section 96 of the Civil Procedure Code, against the judgment and decree dated 28.08.2023 in O.S.No.109 of 2021 on the file of the VI Additional City Civil Court, Chennai.

With the consent of the counsel on either side, the appeal itself is taken up for final disposal since the records of the trial Court has been received.

2. Challenge in this appeal is to the decree for payment of money granted by the trial Court in O.S.No.109 of 2021 in favour of the respondent herein. The respondent/plaintiff sued for recovery of a sum of Rs.34,40,000/-allegedly due under a promissory note dated 25.12.2017 with interest at 12% per annum on the sum of Rs.20,00,000/- from the date of plaint till date of realisation.

3. The substance of the averments in the plaint is as follows:

The defendant and his brother Mr.R.Govindaraj had moved the plaintiff's father Manohar Jain who was a money lender. On the recommendation of the said Govindaraj and upon request by the defendant, the plaintiff's father advanced a sum of Rs.5,00,000/- to the defendant during October 2013. As a security for repayment of the said sum of Rs.5,00,000/- with interest at 24% per annum, the defendant had executed a simple mortgage in favour of the father of the plaintiff on 18.10.2013 and the same was registered as Document No.4107 of 2013 in the office of the Sub Registrar, Anna Nagar. The original title deeds relating to the property that was mortgaged, were also deposited with the plaintiff's father. Though the defendant had agreed to repay the monies borrowed within three years, he did not repay as assured and he was buying time on some pretext or the other. While so, in or about October 2015, the defendant informed the plaintiff that he requires a sum of Rs.20,00,000/- over a period of two years for development of his business. Despite reluctance, the plaintiff and his father were lured by the defendant to advance monies to him on the pretext that the original sum of Rs.5,00,000/- advanced on the strength of the mortgage in the year 2013 will also be repaid along with interest only if he is able to plough in more money into his business. After informing the defendant's brother regarding the transaction, the plaintiff paid a sum of Rs.20,00,000/- over a period of two years. The defendant executed a temporary receipt for Rs.5,00,000/- on 25.12.2017. After payment of the entire amount of Rs.20,00,000/-, the defendant offered to execute a second mortgage in respect of the property that was covered by the simple mortgage dated 18.10.2013. However, the plaintiff insisted upon some other property security. The defendant came forward with the suggestion to deposit the original title deeds of the property belonging to his brother situate at Kanchipuram as security for repayment of the entire loan. The plaintiff, believing the defendant's assurance, obtained a promissory note on 25.12.2017, wherein, the defendant promised to repay the sum of Rs.20,00,000/- with interest at 24% per annum. It is also claimed that the original sale deed dated 28.08.2006 relating to the property situate at Kancheepuram was also deposited as security. To his dismay, the defendant neither repaid the loan covered by the mortgage deed nor the loan covered by the promissory note. During October 2020, the defendant met the plaintiff and pleaded sometime in view of the outbreak of the pandemic. The plaintiff agreed to wait subject to the defendant making a token payment of not less than Rs.5,000/- and endorsing the same on the promissory note. According to the plaintiff, the defendant who agreed to pay an amount not less than Rs.5,000/-, did not come back with the payment. As things stood thus, the defendant issued a legal notice on 21.10.2020 requiring the plaintiff to accept the principal amount due under the mortgage and with interest from November 2016 and also seeking return of the sale deeds. Surprisingly, the said notice also claimed that the plaintiff