9911796707
TMI Blog2008 (5) TMI 630X X X X Extracts X X X X X X X X Extracts X X X X ..... t nos. 2 to 4 whose managing partner is respondent No.2. The appellant introduced one Pynda Ramakumar to the respondents who agreed to advance monies to the respondents on the understanding that the respondents would repay the amount while the appellant would execute pronotes as surety. The appellant accordingly executed certain pronotes whose consideration was received by the respondents. As regards repayment, the respondents were sending monies by drafts or otherwise in the name of one Narayan Murthy, who was the clerk of the appellant, by depositing the same in his account. The appellant would withdraw such amount deposited in the clerk's account by encashing the TTs or Drafts which was then paid to Pynda Ramakumar who then got the endorsements signed by the appellant. This continued for some time but when the respondents failed to repay the balance amount due to Pynda Ramakumar, he pressurized the appellant for payment of the balance amount due to him. The appellant made several demands to the respondents for payment of the amounts due to Pynda Ramakumar but when the respondents could not pay the amounts, the respondent no. 2 as manager of the joint family and also on behalf of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stion was the clerk of the appellant and the Attester was his brother-in-law. They also contended that they were not aware of the alleged borrowing by the respondent no.2 for the respondent no. 1 firm from the said Pynda Ramakumar or the appellant and in fact, the pronotes in question did not show that the amounts so borrowed were for the business of the respondent no.1 firm. It was further alleged in the written statement filed by the respondent Nos. 3 and 4 that the pronotes were fabricated on account of family disputes between the appellant and the respondent No. 2 and that they had no necessity to borrow any amount from some other person. Infact, Pynda Ramakumar was a friend and an associate of the appellant. Even otherwise, the pronotes were not binding on them as no amounts were borrowed for the benefit of the firm and they were not signatories to the said pronotes. It was further the case of the respondent Nos. 3 and 4 that there was no joint family because the properties of the respondents were partitioned in the year 1980 and, therefore, the respondent no. 2 had no right or authority to borrow debts for the firm on their behalf. Accordingly, all the respondents prayed for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with such presumption, no decree could be passed on the basis of such presumption. 8. The learned counsel for the appellant contended before us that the trial court had found that the existence of both the pronotes was proved by evidence and the materials on record. The learned counsel for the appellant accordingly contended that although it was never the defence of the respondents that the pronotes were not supported by consideration, nevertheless, the trial court had held that since the appellant had failed to prove that he had borrowed those amounts from Pynda Ramakumar and lent the same to the respondent firm, the pronote Ex.A-21 could not be believed. The learned counsel for the appellant, therefore, vehemently argued that the conclusion reached by the trial court and the High Court to the effect that since the evidence adduced by the appellant was inconsistent with the presumption, in the absence of any evidence by the respondent to rebut the presumption about the pronote, such conclusion was contrary to law. The learned counsel for the appellant, while elaborating her argument further also contended before us that once the execution of the pronote Ex.A-21 was proved, the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve the non-existence of the consideration either by direct evidence or by preponderance of probabilities showing that the existence of consideration was improbable, doubtful or illegal. In this connection, reference may be made to a decision of this Court in the case of Bharat Barrel & Drum Manufacturing Company Vs. Amin Chand Payrelal [supra]. In paragraph 12 of the said decision, this court observed as under: - "Upon consideration of various judgments as noted hereinabove, the position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that it is supported by a consideration. Such a presumption is rebuttable. The defendant can prove the non-existence of a consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondents had neither taken the plea that there was no consideration for the pronote Ex.A-21, either in the reply notice or in the written statement, nor had they adduced any evidence to prove the non-existence of the consideration. The learned counsel for the respondents, however, contended that the respondents had denied the very execution of the pronotes and referred the same as forged both in the reply notice as also in the written statement. We are unable to accept the contentions of the learned counsel for the respondents. In the written statements, the plea of the respondents was that on the face of the pronotes, no cash was paid by the appellant and therefore, the respondents were not liable to pay the amount because the pronotes were forged. It was a finding of the trial court, which was affirmed by the High Court in the impugned judgment that the pronotes were indeed executed by the respondents. It was also a finding of the High Court that except in the reply notice issued by the respondents, nowhere had they stated that the consideration had not passed. It is also an admitted position that the findings of the two courts below was that the execution of the pronotes ..... 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