JUDGMENT

This second appeal is arising out of the concurrent findings of the Courts below in OS.No.41 of 2005 and in AS.No.11 of 2017. The appellant is the plaintiff, who had instituted the suit as against the respondent / defendant in OS.No.41 of 2005 before the Sub Court, Virudhunagar for recovery of money pursuant to a promissory note Ex.A1.

2.The case of the plaintiff is that the defendant borrowed a sum of Rs.1,60,000/- from the plaintiff on 07.11.2002 for the purpose of improving his business and executed a promissory note Ex.A1 with an assurance that the amount would be returned together with interest @ 12 % per annum. However the defendant did not repay principle and did not pay the interest. Therefore the plaintiff caused a legal notice through his counsel on 16.10.2004 to the defendant demanding repayment of the money. The defendant did not repay the amount, but issued a reply notice dated 05.11.2004 denying the execution of the promissory note. Therefore, the appellant filed the suit seeking recovery of money from the respondent. During the trial before the trial Court the plaintiff was examined as PW1. He marked the promissory note dated 07.11.2002 as Ex.A1, the copy of the legal notice dated 16.10.2004 as Ex.A2 and the reply notice issued by the defendant on 05.11.2004 as Ex.A3. The defendant had taken a specific stand that the plaintiff is a stranger to him and was set up by one Ramasamy for the issue between Ramasamy and Manoharan. According to the defendant the defendant had given security for the money borrowed by one Manohar from Ramasamy in the year 2001. Ramasamy is a money lender.

Manoharan borrowed a sum of Rs.60,000/- from Ramasamy in the month of August 2001 and this defendant stood as surety for the said loan amount. The said Manoharan had repaid the amount. However there was some interest due. Ramasamy demanded huge interest towards the principle amount and therefore, Manoharan lodged a complaint before the Superintendent of Police, Virudhunagar under the Tamil Nadu Prohibition of Charging Exorbitant Interest Act and during the enquiry Ramasamy settled the issue amicably in order to avoid the criminal prosecution. Ramasamy also issued a receipt to Manoharan on 23.03.2004 as full and final settlement. In that receipt the defendant is the witness to the document. The said Ramasamy, who was aggrieved on the steps taken by Manoharan by lodging a complaint, set up this plaintiff for filing this suit as against the defendant under the impression that the defendant was backing Manoharan. With this averment the reply notice was also issued on 05.11.2004. The defendant examined himself as DW1 and the said Manoharan as DW2. However no document was marked on the side of the defendants. The defendant also attempted to mark certain documents, however, it was not accepted by the trial court that those document were Xerox copies.

3.Considering the evidence adduced, the trial Court dismissed the suit that (i) the contents of Ex.A1 are written in black ink and the signature of this defendant is in blue ink; (ii) the Court by comparing the signature of the defendant in Ex.A1 with the deposition of the defendant found that the defendant could not have written the contents of Ex.A1 ; (iii) though specific stand was taken by the defendant by rebutting the execution of the document Ex.A1 for any consideration, the plaintiff failed to examine the attestor to the promissory note by name Palanivel; (iv) the defendant has taken a specific plea that the plaintiff is a Cooliee and he is not having sufficient means to lend this much of Rs.1,60,000/- to the defendant; (v) this promissory note was also executed on 07.11.2002 for a period of one month with a condition that the defendant should repay the borrowed money. However the plaintiff had not demanded this amount for two years and had issued a notice Ex.A2 only on 16.10.2004; (vi) The plaintiff, who is not having any source of income is said to have lent money of Rs.1,60,000/-,