TMI Blog2005 (12) TMI 599X X X X Extracts X X X X X X X X Extracts X X X X ..... otice dated May 26, 1985 was issued ; but the defendants failed to repay the amount hence the suit. 4. The suit was contested by the defendants. The second defendant filed a written statement, inter alia, contending that he is not a partner of the firm, that he issued a blank signed letter for the purpose of forwarding the post dated cheque with a specific instruction to use the same for the purpose of the joint tender at Madras Fertilizers Limited but the plaintiff has forged the same for his own purpose. He further contended that he had not received any consideration from the plaintiff and he had not written the contents of the letter dated June 23, 1982 and on these pleadings, he prayed for the dismissal of the suit. 5. The third defendant contested the suit by filing a separate written statement which was adopted by the first defendant by filing a memo. In the written statement, the third defendant took the following defence, viz., the defendant is residing at Madras and the cause of action arose at Madras and the court at Mayiladuthurai has no jurisdiction to entertain the suit. The mere issue of post dated cheque and the dishonour of cheque cannot constitute any legal o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... defendants had not obtained the loan from the plaintiff ? (iii) Whether the defendants as pleaded by them are not liable to repay the loan amount to the plaintiff ? (iv) Whether the court has got jurisdiction to try the suit ? (v) To what relief the plaintiff is entitled to ? 7. During trial, the plaintiff was not examined as a witness, but his manager one Pannerselvam was examined as P.W.I and exhibits A1 to A7 have been marked. On the side of the defendants, the second defendant was examined as D.W.I and one Saranaiya has been examined as D.W. 2 and exhibits Bl to B9 have been marked. On a consideration of the oral and documentary evidence adduced in the suit, the trial court has dismissed the suit. Aggrieved by that the plaintiff has filed the above appeal. 8. Mr. Muthukumaran learned counsel appeared for the appellant/plaintiff but no one appeared for the respondents/defendants. The trial court on a consideration of exhibits B3, B7 and B8 came to the conclusion that the first defendant, Thirusool Traders is the proprietary concern, but not a partnership concern as claimed by the plaintiff. The trial court has also held that the proprietary concern, Thirusool Trad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plaintiff. The main thrust of the submission made by learned counsel is that exhibit Al, being a negotiable instrument, the plaintiff is entitled to the benefit of the legal presumption available under Section 118 of the Negotiable Instruments Act. Though the legal presumption is that exhibit A1 cheque is supported by consideration and the burden is on the defendants to prove that exhibit A1 cheque was not supported by consideration the trial court had wrongly thrown the burden on the plaintiff and thereby has committed an error of law. Further, he submitted that the defendants have not discharged the burden of proof that exhibit A1 cheque is not supported by consideration. Learned Counsel further submitted that the evidence adduced by the defendants is contrary to their pleadings in the written statement. Learned Counsel for the appellant by relying upon a judgment reported in Kundan Lal Rallaram v. Custodian, Evacuee Property AIR 1961 SC 1316, submits that Section 118 of the Negotiable Instruments Act laid down a special rule of evidence applicable to negotiable instruments and the presumption is one of law and thereunder a court shall presume, inter alia, that the negotiable ins ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmer is fixed as a question of law on the basis of the pleadings and is unchanged during the entire trial, whereas the latter is not constant but shifts as soon as a party adduces sufficient evidence to raise a presumption in his favour. The evidence required to shift the burden need not necessarily be direct evidence, i.e., oral or documentary evidence or admissions made by opposite party; it may comprise circumstantial evidence or presumptions of law or fact. To illustrate how this doctrine works in practice, we may take a suit on a promissory note. Under Section 101 of the Evidence Act, 'Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exists'. Therefore, the burden initially rests on the plaintiff who has to prove that the promissory note was executed by the defendant. As soon as the execution of the promissory note is proved, the rule of presumption laid down in Section 118 of the Negotiable Instruments Act helps him to shift the burden to the other side. The burden of proof as a question of law rests, therefore, on the plaintiff but as soon as the execution i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learly shows that the burden of proof as a question of law rests on the plaintiff, but since the execution is proved, Section 118 of the Negotiable Instruments Act imposes a duty on the court to raise a presumption in his favour that the said instrument was made for consideration and this presumption shifts the burden of proof in the second sense, that is, the burden of establishing a case shifts to the defendants. If we consider the present case in the light of the abovesaid principles, we have to hold that the trial court has wrongly thrown the burden of proof on the plaintiff without drawing the legal presumption in favour of the plaintiff when the defendants have admitted the execution of exhibit Al. Unless and until the defendant either by direct evidence or by circumstantial evidence acceptable to the court proves that the negotiable instrument was not supported by consideration, the burden on the defendants is not shifted. We have to see whether the defendants have adduced acceptable evidence and discharged their burden and shifted the burden to the plaintiff to prove his case. 16. The second defendant in paragraph No. 3 of his written statement has stated as follows: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the cost of materials if their joint tender happen to be accepted, offering the sale of scrap by the tender, a cheque was issued by the third defendant to be utilized for payment to the company. This defence has not been spoken to by D.W.I in his evidence. As noticed above, what D.W.I has stated is that if the plaintiff helps D.W.I to get the tender in the name of D.W.I, a particular percentage of money will be paid to the plaintiff and that was the arrangement between them. This evidence of D.W.I is contrary to the pleadings in the written statement, which speaks about the joint tender. Nowhere in the written statement it is stated that any commission is to be paid to the plaintiff, if he helps the third defendant to get the tender confirmed in his name. Hence, we feel that D.W.I's evidence is not credible and reliable. It is the specific case of the third defendant in his evidence that the auction was held on June 23,1982 and exhibit A1 cheque was given by him to the plaintiff on June 23, 1982 at the premises of Madras Fertilizers Limited at Chennai and the tender was not confirmed in favour of the third defendant and hence he requested the plaintiff to return exhibit A1 ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e third defendant to be utilized for payment to the company. The said pleading has been given a go-bye and a new plea has been introduced in his evidence by D.W.I. For this reason also, we are unable to believe D.W.I. 21. While the second defendant in his written statement has categorically 21 admitted that the signature in exhibit A2 letter is his signature, D.W.I in his evidence though admitted at the first instance that exhibit A2 contains the second defendant's signature (Radhashyam), immediately he retracted the same and said that the signature in exhibit A2 is not that of the second defendant, Radhashyam but his name alone is there. This evidence of D.W.I, shows that he will go to any extent to lie. If really the arrangement spoken to by D.W.I between him and the plaintiff was true and ultimately the bid was not confirmed in favour of the plaintiff, when the plaintiff was admittedly present with him at Madras Fertilizers Limited at Chennai on June 23,1982 he would have immediately got back exhibits A1 and A2. Further, the third defendant would not have kept quiet without issuing a legal notice demanding the return of exhibits A1 and A2 from the plaintiff. All these fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... believe the case of the plaintiff. The trial court has not at all considered the oral and documentary evidence adduced by the defendants in the light of the pleadings in the written statement. The trial court has heavily relied upon the non-examination of the plaintiff to disbelieve his case. The inability of P.W.I to mention the car number in which the second and third defendants came to Mayavaram has been relied upon by the trial court to disbelieve P.W.I. When the burden has not been discharged by the defendants, non-examination of the plaintiff will not have any effect. The trial court has stated that if really the second and third defendants has handed over exhibits A1 and A2 to the plaintiff at 8.00 a.m. on June 23,1982 at Mayiladuthurai, they could not have gone to Madras Fertilizers at Chennai at 2.00 p.m. The trial court has relied upon exhibit B2 and has stated that the third defendant was present at Madras Fertilizers Limited at 2.42 p.m. on June 23, 1982. It could not be said with absolute certainty that one cannot reach Madras from Mayavaram within 63A hours. On these minor aspects, the trial court has wrongly disbelieved the case of the plaintiff. 25. The trial cou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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