TMI Blog1999 (2) TMI 716X X X X Extracts X X X X X X X X Extracts X X X X ..... d given a letter of acknowledgment duly stamped and signed by him dated 6.3.1973 whereby he has acknowledged his liability under the promissory note dated 13.4.1970. Without paying the amount demanded, the defendant had sent a letter dated 30.11.1974 contending that he had sent an application through one P.A. Manickam for the loan and that he did not receive any pumpset, and that, all of a sudden, on 6.9.1973 the officers of the bank came to, the village along with the village munsif and a police constable and had obtained certain papers signed by him by force. According to the plaintiff, the allegations in that letter were false and that there was no threat or coercion on the part of the plaintiff. Inspite of registered notice, the defendant was dodging payment of the amount and hence, the suit. 3. In the written statement filed by the defendant, he contended that one P.A. Manickam was dealing and supplying pumpsets under the name and style of Jagadeesh Electricals . Even though the said P.A. Manickam was said to have his place of business at Vazhapady, he did not do his business at Vazhapady and he took some signatures of the defendant for the loan from the plaintiff for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e amount had been squandered by some intermediaries. The defendant further contended that the alleged sum of ₹ 2,245 due on the promissory note must have been appropriated by the said P.A. Manickam with the connivance of the agent of the plaintiff's bank. The description of the motor does not even disclose any number and if really, any amount advanced towards the purchase, there had been receipt and if the electric motor had been supplied, the number of the electric motor would have been noted. These facts will show that right from the beginning, no goods were supplied to the defendant. 4. Three additional written statements were also filed by the defendant raising the same contentions. In the third written statement dated 27.6.1978, the defendant also submitted that one Parvathammal was one more victim with reference to the alleged purchase of electric motor. 5. It is also by the learned counsel for the appellant stated that the defendant took steps by invoking the procedure under Order 8(A) of the Civil Procedure Code for impleading the said P.A. Manickam as a third party to the suit in I.A. No. 243 of 1977 and that pursuant to the said steps taken by the defendan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sanctioned amount was given to the supplier. No evidence is placed before the court or copy of the Pay Order or even reference to Pay order is marked in evidence. There is no evidence to show when exactly the pumpset was supplied to the loanee. P.W.2, the Agricultural Officer of the bank who claims to have visited the loanee's place in 1971 for inspection, says that the inspection report would disclose the date of his inspection, the details of the number and make of the pumpset etc., but does not file the inspection notes inspite of the specific stand taken by the defendant in the written statement. In the written statement, the defendant has positively stated that no inspection was carried on and that the inspection notes maintained by the bank would disclose that they had not made any visit for the reason that they were aware of the fact that no pumpset had been supplied. 9. The supplier who is impleaded as a third party by the first defendant by invoking the procedure under Order 8(A) of the Civil Procedure Code (it is not disputed by the learned counsel for the first respondent), though he appears to have engaged a counsel-before the trial court, does not file a written ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ier, the inspection notes alleged to have been maintained by the Agricultural Officer (P.W.2) in which it is claimed that the details of the pumpset had been noted, has not been filed in court. In this background what would be the weight of the statutory presumption in favour of a promissory note is best expressed in the following decisions. 12. In the case reported in Palaniappa Chettiar v. Rajagopala Pandarathar and others, A.I.R. 1928 Mad. 772 a Division Bench of this court held that where the recital of the consideration in the promissory note was admittedly incorrect, the burden of proving the consideration is shifted to the holder of the promissory note as against the maker of the promissory note. In the present case under appeal, admitted facts, no amount was paid to the defendant and therefore, the burden of proving the consideration is shifted to the plaintiff. 13. Another Division Bench of this court in the judgment reported in Narasamma v. Veerraju AIR1935Mad769 has held that any presumption as to the quantum of consideration, as distinguished from the mere existence of consideration has to be drawn, not by virtue of Section 118, Negotiable Instruments Act, or even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... truments Act either by producing definite evidence, showing that consideration had not passed, or by relying upon facts and circumstances of the case and also by referring to the flaws in the evidence of the plaintiff and then may contend that the presumption had been rebutted. If the plaintiff goes into the witness-box and the result of his evidence is that he fails to establish the passing of consideration, the defendant can certainly avail himself of the contrariety. It was further held that the question of burden of proof acquires importance, only where, by reason of not discharging the burden which was put upon a party, it must eventually fail. Where not only parties have joined issues, but have led evidence, the two versions can be gone into, with a view to determine which way the weight of the evidence pointed out. In such a case, the abstract question of burden of proof loses its significance and the court has to determine the controversy on the weight of the evidence led by both sides on the contested 'issue and not upon the abstract question of burden of proof. 18. In the present case, we have also seen that no evidence was let in on the side of the plaintiff to pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of law or fact and not necessarily by direct evidence. In that case, the plaintiff being a professional money lender, non production of the account books was held to entitle the court to draw adverse inference and to disbelieve the case of the plaintiff that he had advanced any money to the defendant. 20. Therefore, on the very case of the plaintiff that no amount was paid to the defendant on the execution of the promissory note and that the amount was paid only to the supplier of the pumpset and that there being no positive evidence to show that the pumpset was in fact supplied to the defendant, it has to be held that it is not only a case where the statutory presumption has to be held as effectively rebutted, but also that the plaintiff/Indian Bank have not established their case. 21. On the issue as to whether this court would set aside the findings rendered by the courts below under Section 100 of the Civil Procedure Code, it is sufficient only to point out that the courts below have wrongly cast the burden of proof and had mechanically applied the statutory presumption under Section 118 of the Negotiable Instruments Act. The appellate court inspite of holding that no p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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