The execution of a promissory note must be proven for the legal presumption of consideration to apply; failure to establish execution results in dismissal of the claim.

JUDGMENT :

This Appeal Suit has been filed, challenging the judgment and decree dated 28.10.2021 in O.S.No.347 of 2015 passed by the learned V Additional District Court, Coimbatore, dismissing the suit filed for recovery of money based on the promissory note dated 12.06.2012.

2. The parties, hereinafter arrayed at as their own ranking before the trial Court.

3.The brief facts of the plaintiff's case are as follows:

The defendant's son, one Sukumar has borrowed a sum of Rs.9,00,000/- on 12.06.2012 from the plaintiff and executed a pro-note agreeing to pay interest @ 12% per annum. The said Sukumar died two years back leaving behind the defendant alone as his sole legal heir. Therefore, the plaintiff issued a legal notice to the defendant on 10.01.2015. However, the same was rejected. It is the contention of the defendant that his son had never borrowed any amount from the plaintiff at any point of time. In fact, the property has already been mortgaged by the said Sukumar with a Bank and half of the property was sold away to settle the Bank loan. It is also the contention of the defendant that the signature of the Sukumar has been forged and filed the suit after the death of Sukumar and hence, the claim has been disputed.

4.Based on the pleadings, the trial Court framed the following issues, viz.,

(i) Whether the suit pro-note dated 12.06.2012 is true and valid?

(ii) Whether the defendant had succeeded to any estate of Late.Sukumar? If so, to what extent?

(iii) Whether the plaintiff is entitled for the suit claim as prayed?

(iv) To what relief, is the plaintiff entitled to?

5. On the side of the plaintiff, PW1 to PW3 were examined and Exs.A1 to A3 were marked. No oral and documentary evidence has been adduced on the side of the defendant. However, the trial Court considering the contradictions found in the evidence of PWs.1 to 3 with regard to the execution of the pro-note by the deceased Sukumar, disbelieved the execution and dismissed the suit. Challenging the same, the plaintiff has filed the present Appeal before this Court.

6. The learned counsel for the appellant would submit that the execution of the pro-note has been clearly established as required under law. PWs.1 to 3 have in one voice clearly deposed about the execution of the pro-note by the said Sukumar. Therefore, when a pro-note's execution is proved, a legal presumption can be drawn that the pro-note was made for consideration, unless the defendant rebuts this presumption with evidence. The learned counsel pointed out that the defendant having taken the plea that pro-note was a forged one. She never taken any steps to prove forgery. Further, she has not entered into witness box. The trial Court has not considered this aspect and erroneously dismissed the suit in its entirety.

7. The learned counsel for the respondent/defendant would submit that the execution of the pro-note was not at all established. The plaintiff in her evidence has stated that pro-note has been executed at Pollachi, whereas, other two witnesses have stated contra. That apart, in the legal notice, different amount has been claimed. Moreover, except the plaintiff, PWs.2 & 3 were not in a position to identify the photographs of the said Sukumar. This fact would also clearly indicate that the pro-note has been fabricated at later point of time and its execution was not established.

Further, it is the contention of the learned counsel that the plaint proceeds as if the defendant had received the money which is also totally contrary to the document. Hence, the burden has been discharged by the defendant by way of circumstances in the documents and the plaintiff has failed to prove her claim.

8. Heard the submissions of the learned counsel on either side and perused the entire material available on record.

9. The specific case of the plaintiff is that one Sukumar, who is the son of the defendant had borrowed a sum of Rs.9,00,000/- on 12.06.2012 and executed Ex.A1, Promissory note. According to the plaintiff, by exa