JUDGMENT

This appeal has been filed against the judgment and decree made in O.S.No.9 of 2004, on the file of the Principal District Judge, Kanyakumari at Nagercoil, dated 30.06.2007. The appellant herein is the defendant, the first respondent herein is the plaintiff in the original suit. Since the first respondent herein / plaintiff had passed away, the respondents 2 to 4 herein were impleaded as the LR's of the deceased plaintiff.

2. The first respondent herein / plaintiff has filed a suit for recovery of money in O.S.No.9 of 2004 on the file of the Principal District Judge, Kanyakumari at Nagercoil, and the suit was partly allowed by reducing the rate of interest at 12% p.a.. Against which, the appellant / defendant has filed the present appeal suit.

3.Brief substance of the plaint, in O.S.No.9 of 2004, is as follows:

On 05.11.1997, the defendant approached the plaintiff and demanded a loan of Rs.4,00,000/- from the plaintiff, to complete his new building and he agreed to pay 24% interest. On receipt of the amount, the defendant executed a pro-note, but, the defendant did not pay any amount either towards principal or towards interest. On 16.12.1997, the defendant borrowed another sum of Rs.1,00,000/- from the plaintiff, to start a business in his newly constructed building and agreed to repay the amount in 100 daily installment by paying Rs.1,000/- per day. The defendant executed a 'Sammatha Urithi Pathirom' (consent letter), on 16.12.1997 and he acknowledged the receipt of Rs.4,00,000/- from the plaintiff. The defendant is wantonly evading payment, though he is having movable and immovable properties. The plaintiff demanded the amount on various occasions and the last demand was made on 25.09.2000 by way of sending a legal notice. The defendant did not send any reply and hence, the plaintiff filed the suit for recovery of money.

4. Brief substance of the written statement filed by the defendant in O.S.No.9 of 2004 is as follows:-

The plaintiff suppressed the material facts in the case. The defendant came to know through his friend viz., Arulappan that the plaintiff is doing finance business and the plaintiff came to Nagercoil and received a loan of Rs.90,000/- with the instruction that the same has to be returned in 100 installments by paying Rs.1,000/- per day. On 16.12.1997, the defendant handed over a blank signed cheque and a stamp affixed signed blank paper.

To avoid and to prevent any illegal activities of the plaintiff, the defendant filed a suit in O.S.No.548 of 1999 on the file of the Additional District Munsif, Nagercoil. The defendant deposited the balance amount of Rs. 10,000/- on 20.10.1998. The defendant never received Rs.4,00,000/- from the plaintiff either on 05.11.1997 or on any other date. The defendant never executed a promissory note in favour of the plaintiff on 05.11.1997. The defendant never received any legal notice. To win over the suit in O.S.No. 548 of 1998, filed by the defendant against the plaintiff, the plaintiff has come forward with this suit. The suit is to be dismissed.

5.On the above said pleadings, the following issues were framed by the trial Court:

“ 1.Whether the defendant borrowed a sum of Rs.4,00,000/- on

05.11.1997 from the plaintiff?

2.Whether the suit pronote is a true one?

3.Whether the plaintiff is entitled to the amount claimed as prayed for?

4.To what relief?

6.On the side of the plaintiff, 2 witnesses were examined as P.W.1 and P.W.2 and 9 documents were marked as Exs.A1 to A9. On the side of the defendant, 1 witness was examined as D.W.1 and 4 documents were marked as Exs.B1 to B4. After considering the pleadings and evidence, the trial Court decreed the suit as prayed for.

7. Against the decree, the defendant / appellant herein has preferred this appeal suit on the following grounds:-

7.1 The trial Court failed to consider that no consideration was passed on the pronote alleged to have been executed by the appellant in Ex.A1.

7.2. The trial Court failed to consider that the appellant b