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TMI Blog2022 (4) TMI 1029X X X X Extracts X X X X X X X X Extracts X X X X ..... tated that after one year from the date of promissory notes, demand for repayment was made and it was during the life time of Tiruppathi. The role of scribe has come to an end after drafting the promissory notes. He could not have any interest in getting the loan repaid. The above evidence of PW 3 would show that he has some interest in pursuing the repayments also. This conduct of PW 3 would show that he is an interested witness of the plaintiff. Unless the scribe is neutral, his evidence could not be reliable - Even if it is presumed in favour of the respondent/plaintiff that the appellants' father had affixed his signature in the promissory notes and executed the same by agreeing to the amount found therein, it is obligatory on the part of the plaintiff to prove that the promissory notes were supported by consideration, especially when the defendants deny the passing of the consideration. No doubt, by proving the execution of the promissory notes, the appellants/defendants have got the initial presumption in their favour. However, the said presumption is rebuttable one. It is needless to state once again that the rebuttal proof need not always be positive evidence from th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he movable and immovable properties of the deceased and hence, they are liable to settle the debts of their father deceased Tiruppathi; legal notice was issued to the defendants on 01.04.2016, calling upon them to settle the debt; but notices were returned; hence, the plaintiff has filed the suit for recovery of money from the estate of the deceased Tiruppathi, in the hands of the defendants. 4. The defendants contested the suit by filing a written statement, wherein, it has been stated that the defendants' father had executed two promissory notes as alleged by the plaintiff for the loan availed by him; the defendants' father had purchased Tractor even before the alleged date of the promissory notes and hence he had no purpose to avail loan from the plaintiff; the plaintiff has filed the suit, just with an intention to grab the properties of the deceased father; promissory notes are concocted ones; since the loans were huge, if really their father had obtained the same, he would have informed about the same to the defendants; since the defendants refused to sell away the property in favour of the plaintiff, he has filed the suit on the basis of promissory notes; hence, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... income tax returns to show his income, in order to prove his means to lend such a huge sum as loan; the learned trial judge failed to see that the appellants filed a suit in O.S. No. 316 of 2016, for permanent injunction, restraining the respondents not to disturb their possession and enjoyment of their property; even though, the plaintiff contested the said suit, he has not stated anything about the alleged money transaction between himself and the appellants' father; the learned trial judge placed reliance on evidence about which, there was no pleadings; it was wrongly observed by the learned trial judge that the defendants had not disputed the genuineness of the document and its contents; the learned trial judge had erroneously observed that the first appellant had not specifically denied the conduct of his father and his alleged illicit intimacy with two women; hence, the appeal suit should be allowed. 9. The learned counsel for the respondent submitted that the appellants did not specifically deny the signature in the promissory notes; the execution of the promissory notes has been proved through the evidence of PW 1 and PW 2 to 4, who are the scribe and the attesting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ants/defendants, the respondent/plaintiff had attempted to grab the properties from them, by falsely alleging that the father had availed huge loan from him on promissory notes. The scribe of both the promissory notes were examined as PW 2 and PW 3 and they stood as witnesses for Ex. A1 and Ex. A.2 Promissory notes. 12. The appellants/defendants have stated specifically that the suit promissory notes are not supported by consideration. The learned counsel for the respondent submitted that the evidence of scribe along with the evidence of the plaintiff/PW 1, would prove the execution of the promissory notes. It is to be noted that two loans have been given within a short interval of three months. The loans were said to have been given on 17.02.2014 and 01.05.2014 respectively. During the cross examination, the plaintiff, who was examined as PW 1 has stated that during the interval of three months between the first and second loan, the father of the appellants did not pay any interest for the first loan amount of ₹ 10,00,000/-. While so, it is unbelievable and unrealistic that the respondent/plaintiff proceeded to lend another big loan of ₹ 7,00,000/- to a person, who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dence could not be reliable. 16. Even if it is presumed in favour of the respondent/plaintiff that the appellants' father had affixed his signature in the promissory notes and executed the same by agreeing to the amount found therein, it is obligatory on the part of the plaintiff to prove that the promissory notes were supported by consideration, especially when the defendants deny the passing of the consideration. 17. No doubt, by proving the execution of the promissory notes, the appellants/defendants have got the initial presumption in their favour. However, the said presumption is rebuttable one. It is needless to state once again that the rebuttal proof need not always be positive evidence from the appellants/defendants. Even the weakness and improbabilities exposed from the case of the plaintiff can also be considered as rebuttal proof. In the judgment of the learned trial judge, a reference is made about the judgment held in R. Pandyan and another Vs. M. Palgani, reported in 2015 (2) MWN (Civil) 264, and it is observed that the rebuttal presumption can either be direct evidence or by circumstances of the case or through improbabilities of the case. 18. It has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at have been shown from the evidence on record, it can be safely concluded that the appellants have rebutted the initial presumption under Section 118 of Negotiable Instrument Act. 22. The learned counsel for the respondent/plaintiff has cited the judgment reported in 2017 1 LW 957, R. Senbagadevi and others Vs. C. Sundaramani, in support of his contention that the burden of rebuttal initial presumption lies on the defendants. There is no disagreement about the above legal position. However, it has been already observed that a burden can be successfully discharged by the appellants by exploring and exhibiting the improbabilities of the plaintiff's case. 23. The evidence of DW 2 would show that at the time when the loan amount was given to the father of the appellants/defendants, the first appellant was at his College. The Principal Incharge of TELC Industrial Training Centre, Dindigul has spoken in his evidence about the said fact. During his examination, Admission Register and the Attendance Register were produced as Ex. X1 and Ex. X2 and they would show that at the relevant date, the first appellant/first defendant was attending the College from 9.00 a.m. to 5.30 p.m. W ..... X X X X Extracts X X X X X X X X Extracts X X X X
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