IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 24.11.2023 CORAM THE HONOURABLE MR.JUSTICE S.SOUNTHAR S.A.No.419 of 2017 and C.M.P.No.10273 of 2017 Venkatachalam ... Appellant vs.

1.R.Rajaram

2.R.Ponne ... Respondents PRAYER: Second Appeal is filed under Section 100 of the Civil Procedure Code, to set aside the Judgment and Decree dated 08.12.2016 passed in A.S.No.114 of 2015 by the learned II Additional District Judge at Salem reversing the Judgment and Decree dated 22.06.2015 passed in O.S.No.49 of 2011 by the learned I Additional Subordinate Judge, Salem.

For Appellant : Mr.S.Santhosh Kumar For Respondents : Ms.P.Abirani for M/s.V.Srimathi Senior Advocate

J U D G E M E N T

The plaintiff in a suit for recovery of money is the appellant. The appellant herein filed a suit for recovery of money and the suit was decreed by the Trial Court and findings of the Trial Court were reversed by the First Appellate Court and aggrieved by the same, the appellant/plaintiff is before this Court.

2. According to the appellant/plaintiff, the defendants borrowed a sum of Rs.5,00,000/- from the appellant on 23.03.2008 and executed a suit promissory note agreeing to repay the amount with interest at the rate of 12% per annum. Inspite of several demands, the respondents failed to repay the said amount. Hence, the appellant issued a legal notice on 10.01.2011 calling upon the defendants to repay the amount due under the promissory note. The notice sent to the 1^st defendant was returned and the notice was received by the 2^nd respondent. Thereafter, the respondents issued a reply denying the execution of the promissory note. Therefore, the appellant was constrained to file a suit for recovery of money.

3. The respondents herein filed a written statement and denied very execution of suit promissory note and passing of consideration. It was also stated by the respondents that the appellant herein was only a money lender and he had been set up by one A.Arunachalam and A.Vijaya to file the present suit. It was further stated that signed blank promissory note were stolen from respondents by said A.Arunachalam and A.Vijaya and being close associates of said persons, at the instance of A.Arunachalam and A.Vijaya, the appellant has filed the present suit.

4. Before the Trial Court, the appellant was examined as PW.1 and Attestor to the suit promissory note was examined as PW.2 and 5 documents were marked on behalf of appellant as Exs.A1 to A5. The 1^st respondent was examined as DW.1 and one Gomathi Nayagam, Manager of the Canara Bank, Chennai was examined as DW.2. On behalf of respondents, 28 documents were marked as Exs.B1 to B28.

5. The Trial Court on appreciation of oral and documentary evidences available on record, came to the conclusion that appellant proved his suit claim and granted a decree for recovery of money. Aggrieved by the same, the respondents preferred an appeal in A.S.No.114 of 2015 on the file of the II Additional District Court, Salem. The First Appellate Court reversed the findings of the Trial Court and allowed the appeal. Aggrieved by the same, the unsuccessful plaintiff has come by way of this second appeal.

6. At the time of admission, this Court formulated the following substantial questions of law:-

“(i) Whether the applicability of Legal Position with regard to the word “Execution” and “Presumption” under Section 118 (a) of the Negotiable Instruments Act in the case of money suit Demand Promissory Note is correct or not?

(ii) Whether the First Appellate Court was correct in ignoring the evidence of DW1 especially his admissions during the cross examination which are all very vital in deciding the issues involved in the case?

(iii) Whether Lower Appellate Court was correct in rejecting Ex.A1 Demand Promissory Note executed in favour of the Appellant herein?

(iv) Whether the Demand Promissory Note is legally tenable when the Defendants have subscribed their signatures and Thump impression to the promissory note and that they are not illitera