TMI Blog1999 (7) TMI 699X X X X Extracts X X X X X X X X Extracts X X X X ..... vance monies on the understanding that the defendants will repay the amount and that the plaintiff executed pro-notes as sureties. The plaintiff is the son-in-law of the 2nd defendant. He executed certain pronotes, the consideration of which was received by the defendants. The defendants were sending monies by drafts or otherwise in the name of Narayana Murthy by opening the account in the Banks. After encashing the TTs. or Drafts Narayama Murthy was paying the amount to Pynda Ramkumar and at his convenience he is taking endorsements made and got signed by the plaintiff. The defendants failed to pay the balance amount due to Pynda Ramkumar. Therefore, he pressurised the plaintiff for the payment of the amounts due to him. Inspite of several demands they could not pay the amounts, therefore, they executed a pronote on 29-8-1986 after calculating the amounts due and payable by them. Accordingly the 2nd defendant executed pronote for a sum of ₹ 4,72,000/-and for ₹ 2,15,000/- on behalf of the 1st defendant-firm and on his behalf as the manager of the joint family agreeing to repay the amount with interest at ₹ 2.50 ps. and ₹ 1.50 ps., respectively per annum. Ins ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he trial Court is that the defendants executed Ex.A21 for a sum of ₹ 4,72,000/-. When once the execution of the pronote is found under Section 118 of the Negotiable Instruments Act (for short the 'Act') a presumption arises that consideration passed under the pronote. The defendants have not denied passing of consideration either in the legal notice or in the written statement. The only pleading in the written statement is that no cash consideration was paid. However the recitals in the pronote categorically say that the amount was paid to the defendants. Therefore the trial Court ought to have decreed the suit. 7. It is true that the trial Court found that the defendants have executed the pronotes. This finding is not challenged by the defendants by filing an appeal. Therefore this finding has become final. When once the execution of pronote is found a presumption arises as contended by the learned Counsel for the appellant that it is supported by consideration unless the executant of pronote denied consideration. Except in the reply notice Ex.A24 issued by the defendants, they have not stated that no consideration is passed. Therefore by virtue of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aint or in the notice about giving ₹ 2 lakhs to defendants 3 and 4 and Prasad and the clerk of D1's firm. The accounts do not indicate any entry about the sending of ₹ 1,20,000/- by TT through the Corporation Bank. From the evidence of PW1, plaintiff it is clear that there is no consistency, that he paid an amount of ₹ 3,20,000/- to the defendant. It is no doubt true the recitals in the pronote, Ex.A21 show that on your behalf you took loans of a total amount of ₹ 3,20,000/-(three lakhs twenty thousand rupees) from outsiders in Kakinada and sent the same to us subject o the condition that we should discharge the same and that you should not have anything to do with the same . However, as pointed out in the earlier paragraphs on the basis of the recitals in the pronote a presumption arises. This presumption is subject to proof. If the plaintiff gives evidence inconsistent with the presumption no decree can be passed on the basis of the presumption arising under Section 118 of the Act. We have extracted the evidence of PW1 in extenso, which indicates that no amount was paid to the defendants under Ex.A2l. In view of the above the trial Court is right in d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ex.A20 it appears that the plaintiff borrowed the amount from the third parties by executing pronotes and he directed those third parties to credit the same to D2's account. In other words the plaintiff borrowed the amount from the third parties and directed those third parties to pay the same to the defendants instead of paying it to him. 11. The recitals of the pronote do not create any doubt as to the passing of consideration. Even if the recitals in the pronote do not throw any doubt as to the passing of the consideration still if the defendants deny consideration the burden shifts to the plaintiff to establish that the pronote is supported by consideration under Ex.A20. 12. Let us refer to the pleadings. In the written statement the plea of the defendants is that on the face of the promissory note no cash was paid by the plaintiff and these defendants are not liable to pay the amounts. In other words the defendants case is that no cash was paid and not that no amount was credited through TTs., to the SB A/c. It is not their case that the plaintiff did not borrow the amount from the third parties by executing pronotes and that the said amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence of DW1, his evidence is inconsistent, at one stage he says that he has not executed pronote and at another stage he admits having executed Ex.A20. Nowhere in the evidence he says that Ex.A20 is not supported by consideration. In his reply to the notice under Ex.A25, dated 16-12-1986 he says that the allegations made in the notice are evasive and vague and it is only in Ex.A24 he says that no consideration is paid, but it was given a go-bye in the written statement and in the written statement he says that no cash consideration was paid. 14. Coming to the judgment and decree of the trial Court, the learned trial Judge while granting decree for ₹ 2,15,000/-under Ex.A20 relied upon Ex.B12 under which the defendants submitted his liability to pay an amount of ₹ 1,83,800/-. To this amount they added ₹ 25,000/- under Ex.A26 admittedly received by the defendants. On the basis of these two entries he had granted a decree for ₹ 2,15,000/-. It is pointed out that ₹ 1,83,000/- plus ₹ 25,000/- comes to ₹ 2,08,000/- and not ₹ 2,15,000/-. Further the plaintiff has not filed the suit on the basis of the accounts and there is no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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