JUDGMENT

The defendant in O.S.No.115 of 2010 is the appellant. The challenge is to the Judgment of the Appellate Court in A.S.No.18 of 2018 confirming the decree passed in a suit for recovery of money, based on a promissory note in O.S.No.115 of 2010.

2. The suit was laid by the respondent/plaintiff contending that the defendant borrowed a sum of Rs.1,50,000/- from him on 28.05.2008 and executed a promissory note, agreeing to pay interest at Rs.1/- p.m. for Rs.100/-. Since the defendant did not repay the money, despite legal notice dated 15.09.2010, the plaintiff had sued for recovery.

3. The suit was resisted by the defendant, contending that he does not know the plaintiff and he did not borrow any money from the plaintiff. It is claimed that the defendant had borrowed a sum of Rs.40,000/- from his co-worker Cheran and executed a promissory note for security for the said transaction without filling it up. Though he had repaid the money, the said Cheran did not return the promissory note and claimed that it has been lost. It is the case of the defendant that the said promissory note has been handed over by Cheran to the plaintiff in order to enable him to file a suit.

4. At trial, the plaintiff was examined as P.W.1 and one Jeyaprakash, who is the witness to Ex.A1 Promissory note was examined as P.W.2. Exs.A1 to A6 were marked. The defendant was examined as D.W.1. His identity card was marked as Ex.B1.

5. The trial Court, upon consideration of the evidence on record, concluded that the defence set up by the defendant is not acceptable. The learned trial Judge faulted the defendant for not sending a reply to the legal notice issued by the plaintiff. The learned trial Judge also concluded that having admitted the signature in the promissory note, it is for the defendant to dislodge the presumption under Section 118 of the Negotiable Instruments Act. Noting that there is no other independent evidence on the side of the defendant, except his oral evidence to justify his claim, the trial Court concluded that the plaintiff has made out his case. On the above findings, the learned trial Judge decreed the suit as prayed for. Aggrieved, the defendant preferred an appeal in A.S.No.18 of 2018. The learned Appellate Judge, upon reconsideration of the evidence, agreed with the findings of the trial Court and dismissed the appeal. Hence, the second appeal.

6. I have heard Mr.S.Kadarkarai, learned counsel appearing for the appellant.

7. Mr.S.Kadarkarai, learned counsel for the appellant would vehemently contend that though the plaintiff had admitted that he is an Income Tax Assessee, he has not produced an Income Tax Return to show his ability to lend a sum of Rs.1,50,000/- on the date of promissory note. He would also further contend that though there is admission of execution, once the defendant takes a stand that promissory note was handed over to some other person and the plaintiff has misused it, the presumption under Section 118 of the Act would not arise.

8. I am unable to countenance the submissions of the learned counsel for the appellant. The Courts below have taken note of the following circumstances in negativing the claim of the defendant:

a) Non issuance of reply to the legal notice issued by the plaintiff;

b) Absence of any compliant against Cheran for having misused the promissory note;

c) Absence of any motive attributed to Cheran for having made the plaintiff sue for recovery of Rs.1,50,000/- from the defendant.

d) Absence of any other evidence, apart from the interested testimony of the defendant to establish his claim.

9. When the defendant comes to the Court with a specific case that he borrowed from one of his colleague and that colleague, without returning the promissory note, handed over it to the third party to enable him to file a suit, it is for the defendant to plead some motive or attribute some cause for such behaviour on the part of his colleague. There is neither pleading nor evidence as to the notice for Cheran to have