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2022 (1) TMI 1002 - HC - Indian LawsSuit for recovery of amount - suit promissory note supported by consideration or not - suit is bad for non-joinder of necessary parties and mis-joinder of the parties? - entitlement for suit amount or not - rebuttal of presumption or not - execution of the promissory note - HELD THAT:- The nature of defence of the appellant and second respondent coupled with the evidence adduced on behalf of the first respondent established the execution of Ex.A1 suit promissory note on 01.02.2004 with such recitals therein. D.W. 1 and D.W. 3 gave out their version at the trialin consonance with the contents of Ex.A1. Further, the testimony of P.W. 1, P.W. 2 and intrinsic worth of Ex.A1 are that the appellant and second respondent had received ₹ 2.00 lakhs in cash from the first respondent on 01.02.2004 and executed the same. Admittedly, the wife of the appellant and the second respondent are partners in M/s. Uma Shankar Syndicate. This firm of which the second respondent is the managing partner and all the concerns, referred to above, which are either belonged to the first respondent or his family members and alleged associates are in the business purchasing cotton kappas from the farmers, ginning activity of the same, separating lint and seed and selling away the product to others - The material on record is also establishing that the appellant has been attending to all the trade transactions of his wife. It is also undisputed that there were several trade transactions between the appellant and the business concerns of the first respondent and that are associated with him. Exchange of money in such course of activities cannot be deemed unusual. The very defence of the appellant and the second respondent vouches this fact. Observations of both the Courts below are also to the effect that this alleged settlement is not evidenced by any document and that it was not reduced to writing. It is a right approach. If at all there were such transactions leading to the settlement, arriving at the liability of M/s. Uma Shankar Syndicate, it would have been reduced into writing, by all the parties concerned. Therefore, the question of securing different promissory notes either by P.W. 1 or in the name of others cannot arise in such circumstances - the effect of Section 118 of Negotiable Instruments Act that raises a presumption that a negotiable instrument is made or drawn for consideration is not diluted nor vanished. The transactions relied on by the appellant and the second respondent in this context are distinct and separate among the trading concerns of these parties. They do not in any manner indicate that Ex.A1 promissory note and the promissory notes concerned to other suits admittedly executed by the appellant and the second respondent had the genesis from such mediation on 01.02.2004. The identify of these transactions is distinct, different and quite discernable. The conclusion to draw is that the presumption under Section 118 of Negotiable Instruments Act is all pervasive in its effect, in this case. The testimony of P.W. 1 is thus supported by this presumption. Thus, sufficient proof is offered at the trial that under Ex.A1 the appellant and the second respondent have borrowed from the first respondent agreeing to such terms stated therein and made themselves liable - both the Courts below rightly rejected such defence and are justified in decreeing the suit. This Court is satisfied that this is not an instance where application of Section 100 CPC is invited. There are no such questions, much less substantial questions of law sought to be raised by the appellant in this second appeal to consider and determine - Appeal dismissed.
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