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2022 (4) TMI 418 - HC - Indian LawsDishonor of Cheque - application of presumption, when execution of the so called pro-note is not admitted - defendant has the right to ask the Court to consider the non existence of the consideration so probable that a prudent man ought, under the facts and circumstances of the case, to act upon the supposition that consideration did not exist, or not - suit is barred by limitation or not, if no dates specified/pleaded for borrowing money in a money suit - suggestion put to a witness during cross-examination amount to an admission of the execution of the pronote, or not - shifting of burden of proof upon the appellant - application of statutory presumption under Section 118[2] of the Negotiable Instruments Act when execution is denied - burden of proving the passing of consideration is upon whom in a money suit or not - HELD THAT:- The shifting the burden of proof depends upon the facts and circumstances of each case. In a case of pronote, there is an initial burden on the plaintiff which shifts on the defendant when the defendant admits execution of pronote. In the instant case, the defendant did not admit the execution of pronote. However, based on evidence, the Courts below have held that the execution of pronote is proved. As per the pronote, the amount was borrowed on the date of pronote. However, the pleading of the plaintiff is specific that the consideration for the pronote was the money borrowed by the defendant on various occasions. Therefore, the case of the plaintiff is that the suit pronote is supported by consideration. Merely because the plaintiff advanced loan to the defendant on various dates and the defendant executed the pronote subsequently in recognition of his liability, it cannot be said that the pronote is not supported by consideration. There is no difficulty in accepting the legal position that a statutory presumption is always rebuttable - However, in the present case, the plaintiff has taken meticulous efforts to prove the transaction. This Court justifies the findings of the Courts below that the pronote executed by the defendant is supported by consideration. In the instant case, no motive was specifically pleaded by the appellant against the plaintiff/respondent for filing the suit on the basis of pronote. In a suit based on pronote, the question regarding consideration cannot be decided merely on the basis of pleadings of parties. After considering the entire evidence on record, the Courts below have come to the conclusion that the suit pronote is supported by consideration. From the facts narrated, this Court is unable to agree with the appellant that the respondent/plaintiff has withheld any evidence to give room for drawing any adverse inference - this Court comes to the definite conclusion that the suit pronote was executed by the appellant/defendant in favour of the respondent/plaintiff and it was supported by consideration. In view of the concurrent findings of facts, this Court is unable to find a valid reason to interfere with the judgments and decrees of the Courts below. This Court is also unable to find substance in any of the substantial questions of law framed by the appellant, in view of the nature of the findings of the Courts below and the scope of Section 100 of CPC - the Second Appeal is liable to be dismissed for want of merits.
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