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TMI Blog2014 (10) TMI 1053X X X X Extracts X X X X X X X X Extracts X X X X ..... us interest totally Rs. 2,17,000/- on the allegations that on 15.06.2013, he advanced Rs. 1,50,000/- under a promissory note to the defendants, who are spouses, for interest and as they have not paid the accrued interest and the amounts were calculated and it was arrived at Rs. 2,00,000/- and a fresh promissory note for the same was executed on 05.05.2006. However thereafter, inspite of notice neither they have paid the interest nor the principal. Thus, the institution of the suit. 3. The appellants/defendants have filed written statement resisting the suit, contending that they have not borrowed Rs. 1,50,000/- as pleaded in the plaint. They have not executed any promissory note. Plaintiff filled a blank promissory note and made it suit pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in a promissory note is not equivalent to admission of the entire promissory note itself. Therefore, it is incumbent upon the plaintiff to prove that Ex. A6 has been executed as a promissory note. However, the plaintiff did not do so. To drive home his point of view the learned counsel for the appellants would contend that actually no money/no consideration has been passed for the original promissory note. Referring to the year 1999, in the stamp paper in which Ex. A6 has been written would submit that the plea of the defendants that their signatures were obtained in blank stamp papers and subsequently they were filled up to suit the plaintiff's convenience has been brought out. In the circumstances, the learned counsel for the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would demonstrate the anguish of the plaintiff in having burnt his fingers in having money dealings with the defendants. He would also stress that Ex. B.1 will not/would not cut the presumption arising in favour of the plaintiff under Section 118 of the Negotiable Instruments Act. 11. The learned counsel for the respondent also contended that a plea has been taken that Ex. A.6 has been executed in 1999. But, it was taken only during the arguments. No plea to that effect is in the written statement. 12. I have given my thoughtful consideration to the wishful arguments of both sides, scanned the materials on record. 13. For the purpose of the Second Appeal, the following substantial questions of law have been framed: (a) Whether the lowe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the appellants on 15.06.2013. Admittedly, for the execution of Ex. A.6, actually no money was given on the date of execution of Ex. A.6. Admittedly, the case of the plaintiff is that Ex. A.6 has been given for past consideration. It is legally valid. 17. But the plea of the appellants is that the old promissory note stated to have been executed on 15.06.2013 is a 'nudum pactum', so also Ex. A.6. 18. Plaintiff/P.W.1 and P.W.2 an attesting witness to the promissory note have spoken about the advancing of loan with reference to the old promissory note. The old promissory note has been received by the appellants and in lieu of that Ex. A.6 has been given. In his cross-examination DW1/first defendant admitted that he has signed in E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthorizes the holder of the instrument to fill up the blanks with amount upto the value of the stamp. This position of law has been validly taken advantage of by the learned counsel for the respondent to thrash down the plea of the appellants that they have signed in blank promissory note. 23. Their signature in Ex. A.6 has been admitted by the defendants. With regard to the passing of the consideration, evidence has been let in by the plaintiff. In such circumstance, there is no independent evidence except the evidence of D.W.1, which is not sufficient enough to rebut the presumption arising under Section 118 of the Negotiable Instruments Act. 24. The main mortal attack on the plaintiff's case is based on Ex. B.1. According to the le ..... X X X X Extracts X X X X X X X X Extracts X X X X
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