Direct evidence is essential to establish the execution of promissory notes, particularly when challenged by the defendant.

JUDGMENT

A suit for recovery of money based on a promissory note for Rupees Seven Lakhs was dismissed by the trial court, against which the plaintiff came up in appeal. The due execution of the promissory note and the consideration thereof were denied and disputed by the defendant. The issues that came up for consideration in this appeal are whether the trial court is justified in dismissing the suit on the finding that the due execution of the document, Ext.A2 promissory note was not proved and whether there is any reason to interfere with the finding of territorial jurisdiction and maintainability of the suit.

2. Regarding the maintainability, the trial court has rightly answered the issue by relying on the decision rendered by this court inKrishnan v. Appu Menon [1980 KLT 388] as it is a suit of civil nature and not barred under Section 9 CPC. Since the defendant joined and proceeded with the trial of the suit without raising any preliminary objection regarding territorial jurisdiction, he would stand estopped by raising the same on a subsequent stage of the suit. Hence, the finding rendered by the trial court regarding maintainability and the jurisdiction deserves no interference.

3. The plaintiff did not mount on the box to give any direct evidence to prove the due execution of the promissory note, Ext.A2, or the consideration thereof. The oral evidence tendered through the power of attorney holder cannot be substituted in the place of direct evidence from the plaintiff, especially when he is not a witness to the alleged promissory note or a signatory to the same. The two other witnesses, PW2 and PW3, were also not made as witness to the promissory note. Even the plaintiff did not mount on the box to show that the alleged execution and transaction were witnessed by these two persons, PW2 and PW3. Their version is, in fact, against the pleading raised in the plaint regarding borrowal of an amount of Rs.7,00,000/- as on the date of its execution. The three receipts which were relied on by the plaintiff, each for Rs.1,27,000/-, were not produced along with the suit or subsequently before the commencement of trial. It was produced only on a highly belated stage. It did not contain any specific date, month or year in which it was issued. It is also not discernible from the said document for what purpose those receipts were issued and whether it is in discharge of a debt or not. The due execution of Ext.A2 promissory note and receipts, Exts.A3 to A5, are disputed and denied by the defendant. Necessarily, the plaintiff should give direct evidence in the absence of a witness to the promissory note. Nobody was cited as a witness to the promissory note and nobody has signed on it as a witness. The inconsistency in the oral evidence tendered with the pleading raised in the plaint looms large at this juncture. In the plaint it is stated that the defendant came to the house of plaintiff and received a sum of Rs.7,00,000/-. The power of attorney holder, PW1, had also given oral evidence in tune with the plaint pleading that the defendant received an amount of Rs.7,00,000/- from the house of plaintiff. But, the version given by the alleged two witnesses, PW2 and PW3, is entirely a different one that what is received by the defendant on that day comes to Rs.3,19,000/-. It is also against the content of Ext.A2 promissory note. In fact, Exts.A3 to A5 receipts alleged to have been issued by the defendant came into picture only after the submission of pleading by the defendant. Further, the execution and issuance of Exts.A3 to A5 receipts were not proved by the plaintiff by giving any direct evidence. These documents did not contain any witness and nobody has signed on it as a witness. The absence of direct evidence is so fatal to the case advanced by the plaintiff. Hence, there is no reason for interfering with the finding of the trial court regarding failure to prove the due execution of Ext.A2 promissory note and the consideration there