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K.SETHURATHINAM versus SUBRAMANIAN

High Court of Madras

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K.Sethurathinam v. Subramanian - S.A.No.1800 of 1989 [2002] RD-TN 349 (10 June 2002)



IN THE HIGH COURT OF JUDICATURE AT MADRAS



DATED: 10/06/2002

CORAM

THE HONOURABLE MR.JUSTICE P.D.DINAKARAN

S.A.No.1800 of 1989

K.Sethurathinam .. Appellant versus

Subramanian .. Respondent Second Appeal against the judgment and decree dated 19.1.1989 made in A.S.No.169 of 1988 on the file of the learned Subordinate Judge, Tiruchirapalli, confirming the judgment and decree dated 24.6.1988 made in O.S.No.344 of 1987 on the file of the learned District Munsif, Musiri. For appellant : No appearance For respondent : Mr.K.V.Sundarrajan for Mr.M.Rajasekaran :JUDGMENT



The unsuccessful plaintiff in O.S.No.344 of 1987 is the appellant in this second appeal.

2. The appellant/plaintiff laid a money suit in O.S.No.344 of 1987 on the file of the learned District Munsif, Musiri, for a decree to recover the money based on a promissory note dated 9.2.1985. But the suit was resisted by the respondent/defendant, denying the very execution of the promissory note.

3. Appreciating the evidences on record, the learned District Munsif, Musiri, by judgment and decree dated 24.6.1988 made in O.S. No.344 of 1987, dismissed the suit, finding that the signature in the promissory note is not that of the respondent/defendant, as he did not know to sign his name in English, except to put his initial in English; that the thumb impression of the respondent/defendant was also not bona fide; and that the depositions of P.Ws.1 to 4 do not corroborate with each other, and therefore, held that the promissory note dated 9 .2.1985 is not valid, which was, on appeal in A.S.No.169 of 1988, confirmed by the learned Subordinate Judge, Tiruchirapalli, by order dated 19.1.1989. Hence, the plaintiff in O.S.No.344 of 1987 has filed the above second appeal, and the same was admitted by this Court on 1 8.1 1.1989, on the following substantial questions of law: i. Whether the lower appellate Court is correct in law in throwing the burden on the plaintiff?

ii. Whether the lower appellate Court overlooked the presumption under Section 118 of the Negotiable Instruments Act?

4. Of course, there is no representation on behalf of the appellant/plaintiff.

5. The Substantial questions of law, referred to above, relate to the burden of proving the execution of the promissory note dated 9.2.19 85 and the consequential statutory presumptions under Section 118 of the Negotiable Instruments Act, which reads as follows:

“ Section 118: Presumptions as to negotiable instruments of consideration.-- Until the contrary is proved, the following presumptions shall be made:-- (a) of consideration –- that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration.

(b) as to date –- that every negotiable instrument bearing a date was made or drawn on such date;

(c) as to time of acceptance –- that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity; (d) as to time of transfer -– that every transfer of a negotiable instrument was made before its maturity;

(e) as to order of endorsements –- that the endorsements appearing upon a negotiable instrument were made in the order in which they appear thereon; (f) as to stamps –- that a lost promissory note, bill of exchange or cheque was duly stamped;

(g) that holder is a holder in due course – that the holder of a negotiable instrument is a holder in due course; provided that, where the instrument has been contained from its lawful owner, or form any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving the holder is a holder in due course lies upon him. ”

6. The presumptions under Section 118 of the Negotiable Instruments Act would be a binding rule of evidence in favour of the respondent/ defendant, only if the revision petitioner/plaintiff proves the execution of the promissory note, as held by the Apex Court in KUNDAN LAL V. CUSTODIAN, EVACUEE PROPERTY reported in AIR 1961 SC 1316, wherein, it is held as follows: “5. This section lays down a special rule of evidence applicable to negotiable instruments. 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. In effect it throws the burden of proof of failure of consideration on the maker of the note or the endorser, as the case may be. The question is, how the burden can be discharged? The rules of evidence pertaining to burden of proof are embodied in Chapter VII of the Evidence Act. The phrase “burden of proof” has two meanings-—one the burden of proof as a matter of law and pleading and the other the burden of establishing a case; the former 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 S.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 exist”. 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 S.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 is proved, S.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. This presumption shifts the burden of proof in the second sense, that is, the burden of establishing a case shifts to the defendant. The defendant may adduce direct evidence to prove that the promissory note was not supported by consideration, and, if he adduced acceptable evidence, the burden again shifts to the plaintiff, and so on. The defendant may also rely upon circumstantial evidence and, if the circumstances so relied upon are compelling, the burden may likewise shift again to the plaintiff. ”

7. Therefore, it is well settled that the burden initially rests on the plaintiff to prove that the promissory note was executed by the defendant. Then only the plaintiff is entitled for presumption as against the defendant, as provided under Section 118(a) of the Negotiable Instruments Act.

8. In the instant case, since both the Courts below have categorically rejected the very execution of the promissory note, holding that the depositions of P.Ws.1 to 4 do not corroborate with each other, which is purely a question of fact, in my considered opinion, I do not find any ground to interfere with the judgment and decree of the Courts below. Hence, this second appeal is dismissed. No costs.

Index: Yes

Internet: Yes 10.06.2002 ksv

To:

1. The Subordinate Judge, Tiruchirapalli. (with records) 2. The District Munsif, Musiri. (with records) Copy to:

The Section Officer, V.R. Section, High Court, Madras. Sd/- Assistant Registrar

/True Copy/

Sub Assistant Registrar

Ksv

P.D.DINAKARAN,J.

S.A.No.1800 of 1989


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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