J U D G M E N T

This Second Appeal is filed challenging the concurrent judgment and decree of the Courts below in decreeing the suit filed on the basis of promissory note. The respondent/plaintiff filed the suit on the basis of promissory note for recovery of Rs.77,157/- with 24% interest on the principal amount. The case of the respondent is that one G.Ashokan, who is the son of Rajammal, husband of the first appellant Thilagam and father of the other appellants, borrowed a sum of Rs.45,000/- from the respondent on 15.12.1998. He executed a promissory note on the same date, after receiving the amount and promised to pay the principal amount with interest at 24% per annum on demand. Ashokan died on 26.04.2000 leaving his mother, wife and children as his legal heirs to succeed to his estate. Inspite of repeated demands, the appellants did not repay the amount. Therefore, notice was issued on 17.10.2000. Even thereafter, the appellants have not paid the amount. Therefore the suit.

2. The case of the appellants as seen from the written statement is that the suit is hopelessly barred by limitation. It is denied that Ashokan borrowed Rs.45,000/- on 15.12.1998 and executed the promissory note. The promissory note is a rank forgery. The suit is filed by the respondent taking advantage of the demise of Ashokan to grab money from the appellants. The alleged execution of promissory note and the date of execution of the promissory note is contradictory. Respondent fabricated the date of the promissory note for the purpose of litigation. Otherwise, the suit is hopelessly barred by limitation. Ashokan had denied the alleged money transaction even during his lifetime. The respondent failed to file a suit during the life time of Ashokan. The suit is liable to be dismissed.

3. On the basis of these pleadings, the Trial Court framed the following issues:

i. Whether the suit is barred by limitation?

ii. Whether the plaintiff is entitled for the relief claimed in the plaint?

iii. To what relief, if any, the plaintiff is entitled?

Additional issue:

i. Whether the suit promissory note is altered?

ii. Whether Ashokan borrowed only Rs.5,000/- and discharged this amount?

4. During trial, P.W.1 was examined and Exs.A1 to A8 were marked on the side of the respondent/plaintiff. No witness was examined and Exs.B1 and B2 were marked on the side of the appellants.

5. On considering the oral and documentary evidence, the trial court found that the respondent/plaintiff proved the borrowal of Rs.45,000/- and the execution of the suit promissory note and therefore decreed the suit. In Appeal filed by the appellants, the first appellate court agreeing with the trial court, confirmed the judgment and decree of the trial court and dismissed the appeal. Therefore, the appellants filed this Second Appeal.

6. Learned counsel for the appellants mainly submitted that though there was some loan transaction between Ashokan and the respondent, he has not borrowed Rs.45,000/- on 15.12.1998 as claimed by the respondent. Using the blank promissory note given by him to the respondent during the previous loan transaction, the suit is filed. It is evident from Ex.A2 notice, wherein it is claimed that the suit promissory note was executed on 15.02.1998. However, it is seen from the plaint pleadings and in Ex.A1 promissory note, the respondent claimed that the amount was borrowed on 15.12.1998 and the suit promissory note was executed on the same date. Forgetting that notice Ex.A2 was issued, the suit promissory notice was filled before filing of the suit with the date of execution as 15.12.1998. When the respondent prosecuted Ashokan under section 138 of the Negotiable Instruments Act for not paying Rs.5,000/- there is no reason, why the suit was not filed during the life time of Ashokan. Ex.A2 clearly proved that the suit promissory note has not been executed on 15.12.1998.

Therefore, the suit is clearly barred by limitation. Without considering this suspect, both the Courts below have