The execution of a promissory note creates a presumption of consideration, which the defendant must rebut with credible evidence to avoid liability.

JUDGMENT :

K.GOVINDARAJAN THILAKAVADI, J.

The present Second Appeal is preferred against the decree and judgment dated 09.02.2022 passed in A.S. No.90 of 2018, on the file of the III Additional District and Sessions Court, Tiruppur at Dharapuram, confirming the Judgment and decree dated 06.12.2006 passed in O.S. No.117 of 2002, on the file of the Subordinate Court, Dharapuram.

2. The respondent as plaintiff filed the above suit for recovery of money. The unsuccessful defendant has preferred the present Second Appeal.

3. According to the respondent / plaintiff, the appellant / defendant borrowed a sum of Rs,2,00,000/- from the plaintiff for his urgent family needs and for business expenses, executed the suit promissory note in favour of the plaintiff agreeing to repay the same with interest at 12% per annum on demand. In spite of repeated demands made by the plaintiff, the defendant failed to repay the borrowed amount with interest and was trying to dispose his properties. Hence the suit.

4. The claim of the plaintiff was resisted by the defendant stating that on 31.07.1995, he borrowed a sum of Rs.90,000/- from one Muthusamy and executed an agreement for Rs.1,00,000/- and also handed over 5 signed unfilled pro notes to Muthusamy. The said Muthusamy filed a suit in O.S. No.137/98 and the same was dismissed on 22.09.2000. The plaintiff and the said Muthusamy are closely related. The said Muthusamy has instigated the plaintiff to file the present suit. The defendant has not borrowed any amount from the plaintiff. No pre suit notice was issued by him. The attestors to the pro note are close relatives of the plaintiff. Hence, prayed for dismissal of the suit.

5. The trial court has framed necessary issues. Three witnesses were examined on the side of the plaintiff and one document was marked. On the side of the defendant, the defendant was examined as D.W.1 and 11 documents were exhibited. After an elaborate trial, the trial court decreed the suit in favour of the plaintiff.

6. Aggrieved by this, the defendant preferred the appeal suit in A.S.No.90/2018. Based on the materials on record, the first appellate court, dismissed the Appeal Suit. Challenging the same, the present Second Appeal is preferred by the defendant.

7. Mr. C.K.M. Appaji, the learned counsel appearing for the appellant / defendant would submit that the financial capacity of the plaintiff was not established and no issue was framed in this regard by the trial court. The plaintiff has no means to lend a sum of Rs.2,00,000/- to the defendant and that, once the defendant shows preponderance of probabilities to dislodge legal presumption, burden shifts upon plaintiff. In the present case, the defendant has produced necessary oral and documentary evidences thereby dislodging the legal presumption under Section 118 of the Negotiable Instruments Act. If once presumption under Section 118 has been rebutted, then it becomes the burden of the plaintiff to prove that the promissory note, was supported by consideration. The present suit has been filed by the plaintiff only under the instigation of one Muthusamy, who failed in a suit filed against this defendant. The plaintiff had no source of income to lend money to the defendant and that the suit promissory note was not supported by consideration. He would further submit that Ex.B9 to B11 would amply prove that the plaintiff was a chronic defaulter of bank loans and hence, it is highly improbable for him to lend a loan of Rs.