Plaintiff proved promissory note execution and consideration; defendant failed to rebut Section 118 NI Act presumption; income tax omission irrelevant.

JUDGMENT :

P.B. BALAJI, J.

1. The defendant in a suit for recovery of money, aggrieved by the judgment and decree in favour of the plaintiff has come up by way of this Appeal.

II. PLEADINGS:

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(1) Plaint in brief:

The defendant is the maternal uncle of the husband of the plaintiff. The defendant borrowed a sum of Rs.10,00,000/- to meet family expenses on 07.10.2018 and agreed to repay the same with 12% interest per annum. The defendant executed a promissory note on the very same date. Despite repeated requests, the defendant failed to discharge the loan. The plaintiff caused a lawyers notice on 13.11.2020, to which the defendant sent a reply with false allegation on 01.12.2020. Hence, the suit.

(2) Written Statement filed by the defendant in brief:

The defendant never borrowed any amount from the plaintiff. The defendant did not execute any promissory note and defendant has already suitably replied to the pre-suit notice. The defendant has no necessity to borrow money, as he is an affluent person. The plaintiff's husband, only with an intention to grab money, has forged the promissory note and filed the suit in O.S. No.80 of 2020 before the District Munsif Court, Sirkazhi against the defendant.

(3) Issues:

Based on the pleadings, the Trial Court has framed the following issues:-

(4) Trial:

On the side of the plaintiff, three witnesses were examined as P.W.1 to P.W.3 and Ex.A1 to Ex.A4 were marked and on the side of the defendant, two witnesses were examined as D.W.1 & D.W.2 and Ex.B1 and Ex.B2 were marked.

(5) Decision of the Trial Court:-

The Trial Court found that the plaintiff had proved due execution of the promissory note and decreed the suit as prayed for.

3. The present APPEAL:-

I have heard Mr.S.S.Swaminathan, learned counsel for the appellant and Mr.A.Muthukumar, learned counsel for the respondent.

4. Arguments of the learned counsel for the appellant:-

The learned counsel for the appellant Mr.S.S.Swaminathan, would firstly invite my attention to the suit in O.S. No.80 of 2020, which has been filed by the plaintiff's husband against the defendant. He would therefore state that there is already enmity between the parties and only in order to slap further claims and arm-twist the defendant, the suit promissory note has been forged, as if the defendant borrowed money from the plaintiff. The learned counsel for the appellant would also state that even in the written statement, the defendant has specifically taken a plea that he was an affluent person and there was no necessity to borrow any money. It is therefore the submission of the learned counsel for the appellant Mr.S.S.Swaminathan, that when the defendant had denied due execution of the promissory note and also passing consideration, the burden was only on the plaintiff and according to the learned counsel for the appellant, Mr.S.S.Swaminathan, the said burden has not been discharged for it to shift on the defendant to thereafter, dislodge the presumption that would arise under Section 118 of the Negotiable Instruments Act, 1881 that the pro-note was for consideration.

5. The learned counsel for the appellant, Mr.S.S.Swaminathan, would state that though two persons had witnessed the execution of promissory note, the plaintiff chose to examine only his tenant as P.W.2 and the sister of the plaintiff's husband who was the other witness to the suit promissory note has not been examined. He would also state that the amount of Rs.10,00,000/- is not a small sum and the plaintiff ought to have established that he has sufficient source to enable lending in the first place. He would also invite my attention to the deposition where the plaintiff admits that the loan transaction