TMI Blog2021 (8) TMI 376X X X X Extracts X X X X X X X X Extracts X X X X ..... ase on hand also, the signature in the suit pro-note has been admitted - there has been a gap of almost 16 years between the date of execution of the suit pro-note and the examination of the witnesses in the Court. In view of the efflux of time, the memories are likely to fail. The contradictions noted in the deposition of the witnesses by the First Appellate Court are not really material. The only way the defendant could have rebutted the presumption is to show that the plaintiff was running the chit business and that, when he had bid for the prize money, the suit pronote was taken. The plaintiff had categorically stated that the defendant was none other than his nephew. The plaintiff had originally stated that the defendant was the son of his elder brother. Later, the plaintiff clarified that the defendant was his cousin's son. But the fact remains that the defendant and the plaintiff are close relatives. Hence, there is no merit in the contention that the witnesses examined on the side of the plaintiff are relatives. In view of the relationship between the parties namely the plaintiff and the defendant, the fact that the attestor is also a relative pales into insignifican ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt till the date of realization. Aggrieved by the same, the defendant filed A.S.No.92 of 2012 before the Additional Sub Court, Karur. The Appellate Court, by Judgment and Decree dated 18.03.2012, set aside the Judgment and decree passed by the trial Court and allowed the first appeal. Challenging the same, this second appeal came to be filed. The second appeal was admitted on the following substantial questions of law:- (a) Whether the lower Appellate Court is justified in coming to the conclusion that the defendant rebutted the presumption regarding the execution of Exhibit A1 in terms of Section 118 of Negotiable Instruments Act? (b) Whether the lower Appellate Court committed an error in not considering the version of P.W.1 which categorically proves the case of the plaintiff and that the lower Appellate Court failed to consider that the plaintiff has proved his case without any iota of doubt and hence the burden of proof will shift to the defendant and the defendant has the onus to prove his case as per Sections 101 and 102 of the Indian Evidence Act? (c) Whether the lower Appellate Court is right in allowing the appeal when the defendant had categorically admit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e than 15 years, he does not know the residential address of the plaintiff or that of the attestor. The scribe also stated that the promissory note was brought only by the plaintiff. P.W.3 also did not know the date on which the loan was advanced. There is inconsistency between the witnesses as to who brought the pro-note and the revenue stamp. P.W.3 also stated that it was Nallusamy who signed first in the promissory note and thereafter, P.W.2 signed in the pro-note. P.W.3 also did not know the purpose for which the loan was taken. The first Appellate Court held that the evidence of P.W.1 to P.W.3 are contrary to each other and they do not inspire the confidence of the Court. The Appellate Court felt that there was considerable suspicion regarding execution and attestation and passing of consideration under Ex.A.1- pro-note. The first Appellate Court came to the conclusion that presumption under Section 118 of the Negotiable Instruments Act could not have been drawn in the facts and circumstances of the case. The learned counsel for the respondent therefore pressed for dismissal of the second appeal and for sustaining the Judgment and decree passed by the First Appellate Court. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the presumption is one of law and thereunder a court shall presume, inter alia, that the negotiable instrument or the endorsement was made or endorsed for consideration and in effect it throws the burden of proof of failure of consideration on the makers of the note or the endorser, as the case may be. 9.In the case on hand also, the signature in the suit pro-note has been admitted. Therefore, the approach laid down in the aforesaid decision will have to be adopted. The trial Court was justified in drawing presumption under Section 118 of the Negotiable Instruments Act in favour of the plaintiff/appellant herein. The question that next arises is whether the presumption had been successfully rebutted by the defendant. The first Appellate Court had referred to a host of discrepancies found in the testimony of the witnesses for the plaintiff to come to the conclusion that the presumption had been rebutted and Ex.A1-pro-note was not established. It is true that there are contradictions in the answers given by the witnesses. In my view, they do not really go to the root of the matter. As rightly argued by the learned counsel for the appellant, the pro-note has been executed w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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