9911796707
TMI Blog2022 (5) TMI 1110X X X X Extracts X X X X X X X X Extracts X X X X ..... inst the respondent herein for recovery of money of Rs.1,00,000/- each, borrowed by him on 18.02.2004, 10.03.2004 and 05.04.2004 respectively, and executed Ex.A1 to Ex.A3, promissory notes in favour of the plaintiff for consideration. After issuing pre-suit notice, dated 15.11.2006, the plaintiff filed the suit for recovery of the suit claim of Rs.4,59,000/- along with subsequent interest. 4. Resisting the suit, the defendant filed written statement inter alia admitting the execution of the suit promissory notes. However, the defendant raised plea that the above mentioned promissory notes had been executed towards security for the loan borrowed, and that the loan due was settled by way of execution of a sale deed, dated 12.11.1999 in the n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed eye. Accordingly, lower Appellate Court reversed the judgment of the trial Court and dismissed the suit by the judgment and decree, dated 02.06.2011. Being aggrieved by the reversal findings of the first Appellate Court, the plaintiff filed this second appeal before this Court and the plaintiff had the benefit of an order of attachment before judgment in I.A.No.42 of 2007 in O.S.No.295 of 2008. 8. The above second appeal is admitted on the following Substantial Questions of Law: "1.Whether the first Appellate Court erred in law in not considering the scope of Section 118 of the Negotiable Instruments Act and the legal presumptions arising under it before dismissing the suit by reversing the well considered reasonings of the trial Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... W1, I find that the execution and issuance of the pro-notes, viz., Ex.A1 to Ex.A3 are not in dispute. In fact, the defendant has categorically admitted the same in the written statement as well as in his evidence. However, the first Appellate Court has committed an error in giving findings as to the execution. Once the signature found in the suit documents have been admitted, there is no need or necessity for the plaintiff to give explanation for not obtaining the thump impression in the suit promissory note. There is no such law to get the thump impression in the suit promissory note. There is no such law to get the thump impression also in the promissory note, particularly, when the execution and issuance of Ex.A1 to Ex.A3 were not in dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation offered by the defendant is reasonable. When there is a statutory presumption in favour of the plaintiff, it has to be rebutted by proof and not by a bare explanation. Unless the explanation is supported by proof, the presumption created by the provision cannot said to be rebutted. 14(b). Presumption under Section 118 of the Negotiable Instruments Act is one of law, and thereunder, the Court below shall presume inter alia that the promissory notes were made for consideration. Once statutory presumption is raised, onus of proving absence of consideration is on the executant and hence, I find that the lower Appellate Court has miserably failed to consider the pleading and evidence in the proper prospective and has wrongly thrown the bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able Instruments Act that both the signature and thump impression has to be obtained for a pro-note and the lower Appellate Judge has totally misguided and misused the provision of the Negotiable Instruments Act, regarding burden of proof and not even followed basic rudimentary of Section 20 of the Negotiable Instruments Act. 16(c). Pending suit, in IA, the plaintiff has obtained attachment before judgment. On erroneous application, the lower Appellate Court has allowed the suit and granted suspension of order for attachment before judgement. 17. Thus I find that the lower Appellate Court has erred in law in rejecting the plaintiff's right to fill up the suit promissory notes under Section 20 of the Negotiable Instruments Act, whereup ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
