TMI Blog2013 (9) TMI 1279X X X X Extracts X X X X X X X X Extracts X X X X ..... ant/defendant failed to repay the amount due and payable, on the promissory note, the respondent/plaintiff filed the suit before the trial Court. After the trial, the suit was decreed as prayed for with costs. Aggrieved by which, the appellant/defendant preferred appeal in A.S. No. 46 of 2006 on the file of the Principal Subordinate Judge, Krishnagiri. The Principal Subordinate Judge, confirmed the Judgment and Decree passed by the trial Court and dismissed the appeal. Aggrieved by which, the second appeal has been preferred by the appellant/defendant. 3. This Second Appeal has been admitted, based on the following Substantial Questions of Law: (a) Whether the defendant has not rebutted the presumption and placed evidence to show that the suit promissory note was not supported by consideration and whether the Courts below are correct in granting the relief in favour of the plaintiff, on the ground that he is the holder in due course of the suit promissory note? (b) When the burden is on the plaintiff to prove that the signature found in the assignment of the promissory note is that of Sundarambal and that it was supported by consideration, whether the Courts below are corr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court erred in comparing the signatures in Exhibit A-2 and Exhibit A-5 with the signatures found in the vakalath and written statement of the defendant. 7. In Somasundaram v. Palani LNIND 1999 MAD 411 : (1999) 3 MLJ 710 : 1999 (3) CTC 156, this Court has held as follows: Even though the Court may have the power to compare the signatures, there must be some admitted signature of the defendant, on the basis of which a comparison will have to be made. In this case, a comparison has been made on the basis of signatures affixed by defendant in the vakalath and written statement, which are documents that have come into existence after the dispute arose, and after the promissory note in question was filed into Court along with plaint. If that be so, it has to be held that the comparison was not made in accordance with law, even though the Court is empowered to make a comparison. 8. It is seen that in the written statement, the appellant/defendant has categorically denied that she had never borrowed the alleged sum of ₹ 50,000/- from late Sundarambal on 26.1.2001 and executed any promissory note in her favour on the said date. However, she has stated that the appellant/defen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the promissory note, Exhibit A-1 in favour of Sundarambal but she has disputed the passing of consideration of ₹ 50,000/- towards in the promissory note. As the appellant/defendant has admitted the execution of the promissory note, as held by the Courts below, the burden is shifted on the appellant/defendant that there was no passing of consideration on the pro-note to the appellant. If the defence raised by the appellant/defendant is true that she had executed the promissory note, as demanded by Sundarambal, there could be no need for her to hand over the same without receiving consideration and keeping quite without taking steps to get back the promissory note, even after the demand made by the respondent/plaintiff. 11. It is not in dispute that late Sundarambal was a teacher and the appellant/defendant is also an educated person and she was also working as Teacher in the school, therefore, there is no possibility for the appellant to simply hand over a signed promissory note, without receiving the consideration from Sundarambal. Even if it is true, the normal conduct of a person, who executed a pro-note and handed over without receiving consideration would be sending n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant/defendant having received a sum of ₹ 50,000/- from late Sundarambal, executed promissory note, Exhibit A-1, that was written by another Teacher Anandan. He along with P.W. 2, Sagaya Arockiyaraj signed the promissory note as attestors. He has further stated that he knew the fact that the appellant/defendant had not repaid the money obtained from late Sundarambal, hence, after getting the consideration, the pro-note was made over by late Sundarambal in favour of the plaintiff, who is the respondent herein. It is not in dispute that in Exhibit A-3, endorsement, P.W. 3 has not signed as a witness. However, the evidence of P.Ws. 2 and 3 is reliable and trustworthy and there is no motive was attributed against them by the appellant/defendant. 14. As per criminal jurisprudence, for conviction, the guilt alleged against an accused must be proved beyond reasonable doubt, whereas in a civil proceeding, preponderance of probability is sufficient to decide the civil dispute. There is concurrent findings of the Court below to decree money suit, based on evidence. 15. In the instant case, it has been established that the appellant/defendant had executed the suit promiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the plaint, the respondent/plaintiff has categorically stated that the suit was filed well within the time limit. In the written statement, the appellant/defendant has admitted that the respondent/plaintiff had demanded money towards discharging the pro-note on 23.1.2004 and subsequently, he filed the suit, since the appellant/defendant had failed to repay the amount. 20. The appellant/defendant has not raised any plea that the suit claim is barred by limitation. In this second appeal also, the said plea has not been raised as substantial question of law, based on evidence available on record. In the aforesaid circumstances, I am of the view that the decision cited by the learned counsel appearing for the appellant is not relevant to decide the second appeal, as no such substantial question of law was raised by the appellant/defendant. 21. Learned counsel appearing for the appellant relying on the decision, Chotey v. Girraj Kishore, (supra) submitted that an unstamped document, unless it is admissible under some special provisions of law, is mere waste paper for the purpose of judicial proceedings. 22. Learned counsel appearing for the appellant submitted that Exhibit A- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rded by the High Court appears to be based on surmise. Therefore, the judgment is clearly unsustainable. 25. It has been made clear as ruled by the Hon'ble Apex Court in the decision referred to above, that this Court has to consider the second appeal, based on the questions, especially substantial questions raised by the appellant herein. 26. This Court (C. NAGAPPAN, J.) in Janardhanam v. Kalaiselvan (supra), has held as follows: 16...The very essence of a negotiable instrument is its negotiability and as is well known there may be one or more assignments of the rights under an instrument. Absence of consideration, or failure of consideration could avoid the liability only as between the parties to the particular transaction for which there was no initial consideration or there was a subsequent failure of consideration. That the legislature never intended to extend such avoidance of obligation to other transactions pertaining to the same instrument is clear from the second part of the provision. The second part lays down that as far as a holder for consideration or a subsequent assignee for consideration are concerned, any one of them can recover the amount due under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ... In a Second Appeal, anew defence cannot be raised, without raising the same before the Court below, based on mixed question of law and facts, when there is concurrent finding on the factual aspect, based on evidence. Similarly, if there is any amendment made as per order passed in an Interlocutory Application, without challenging the order at the appropriate stage, the same cannot be challenged in the Second Appeal. This Court is of the considered view that the appellants/defendants are not entitled to challenge the amendment made in the plaint, pursuant to the orders passed by the Trial Court in the Second Appeal, without challenging the amendment at the appropriate and stage, in accordance with law. 32. It has been proved by oral and documentary evidence that the appellant/defendant had executed the suit promissory note in favour of late Sundarambal for valuable consideration, as concurrently found by the Courts below. The appellant/defendant had strangely raised a plea that the pro-note was executed in favour of Sundarambal by her and also handed over the same to her, without getting any consideration. Having admitted the execution of the promissory note and also handing ..... 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