9911796707
TMI Blog2022 (6) TMI 853X X X X Extracts X X X X X X X X Extracts X X X X ..... Defendant, it is possible to compare such admitted signatures with the disputed signature. Upon undertaking such comparison, the disputed signature on Ex.P13 tallies with the admitted signatures on visual examination with the naked eye. The Defendant denies the signature largely on the basis that the name of the signatory/Defendant is not written in capital letters beneath the disputed signature on Ex.P13. Merely because the name of the executant has not been written beneath the signature, the genuineness of the signature cannot be questioned. Thus, it cannot be concluded that the existence of consideration for the Suit Promissory Note is improbable. In effect, the Defendant has failed to disprove the existence of consideration in the manner required by reading Section 3 of the Evidence Act and Section 118 of the NI Act along with the interpretations thereof by the Hon'ble Supreme Court. Once it is concluded that the existence of consideration is not improbable, it should be concluded that the Defendant has failed to effectively rebut the presumption. For such reason, the Plaintiff is entitled to succeed. Interest - HELD THAT:- The Plaintiff has claimed a sum of Rs.1,7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Plaintiff states that the Defendant borrowed further sums. In the aggregate, it is stated that a total sum of Rs.29,62,000/- was borrowed as on 30.10.2003. In relation thereto, it is stated that the Defendant executed four promissory notes. The Plaintiff refers to promissory notes dated 19.09.2002, 20.10.2002 and 20.12.2002, respectively, for sums of Rs.32,000/-, Rs.20,000/- and Rs.20,000/-, respectively. Eventually, it is stated that a promissory note dated 30.11.2015 was executed by the Defendant acknowledging receipt of a sum of Rs.1,45,12,735/-, and promising to repay the said sum with interest at 24% per annum from the date of execution of the promissory note. Based on such promissory note, the present suit was filed by limiting the interest claim to 6% per annum from 30.11.2015 to 28.11.2018. Thus, the Plaintiff seeks a decree for a sum of Rs.1,71,20,256/-. 4. Upon service of summons, the Defendant entered appearance through counsel. However, the Defendant did not file the written statement within time. Instead, the Defendant filed an application to reject the plaint. The said application was rejected by order dated 19.08.2021. Subsequently, by order dated 10.11.2021, this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vant property (Ex.P4) and earlier promissory notes such as the promissory notes dated 19.09.2002 (Ex.P5) and 20.10.2002 (Ex.P7), the letter of undertaking dated 31.10.2002(Ex.P8), the promissory note dated 20.12.2012 (Ex.P9) and the letter dated 30.11.2015 (Ex.P12) to the Plaintiff from the Defendant. With reference to Ex.P12, the Plaintiff stated that the Defendant requested for title documents which had been handed over to the Plaintiff in relation to a loan applied for by the Defendant from Reliance Capital Limited. The promissory note was executed on the same date. This communication records that the property documents pertaining to Plot No.8, Bhavani Nagar, Lakshmipuram, Kolathur, Chennai 600 099 would be returned after verification. 8. According to the Plaintiff, if the loan had been discharged as contended by the Defendant, the Defendant would not have agreed to return the title documents after verification by Reliance Capital Limited. For all these reasons, the Plaintiff contended that the execution of the promissory note was proved and the consideration specified therein flows from amounts borrowed by the Defendant and reflected in the documents referred to above. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he other presumptions of law or fact that the promissory note was not supported by consideration. (ii) Reverend Mother Marykutty v. Reni C.Kottaram and another (2013) 1 SCC 327, wherein, at paragraph 13, the Hon'ble Supreme Court referred to the judgment in Bharat Barrel and concluded that the presumption under Section 118 of the NI Act had been duly rebutted by the defendant therein. (iii) M.S.Narayana Menon Alias Mani v. State of Kerala and Another (2006) 6 SCC 39, wherein, at paragraphs 27 to 30, the Hon'ble Supreme Court considered the implications of Sections 118 and 139 of the NI Act, including the purport of the expressions 'proved' and 'disproved' as per Section 3 of the Indian Evidence Act, 1872 (the Evidence Act). 11. By way of rejoinder, the Plaintiff pointed out that several admitted signatures of the Defendant are on record. For instance, the signatures on Ex.P12, Ex.P9 and Ex.P8 are admitted. Therefore, by applying Section 73 of the Evidence Act, the Court may compare the signature of the Defendant on Ex.P13 by testing the said disputed signature against the admitted signature on the other exhibits referred to above. On this is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... signatures with the disputed signature. Upon undertaking such comparison, the disputed signature on Ex.P13 tallies with the admitted signatures on visual examination with the naked eye. The Defendant denies the signature largely on the basis that the name of the signatory/Defendant is not written in capital letters beneath the disputed signature on Ex.P13. Merely because the name of the executant has not been written beneath the signature, the genuineness of the signature cannot be questioned. In any event, the law and the remaining evidence should be considered before drawing a definitive conclusion. 14. Section 118 of the NI Act is as follows: ''118. Presumptions as to negotiable instruments. - 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, indorsed, negotiated or transferred, was accepted, indorsed, 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 -th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;s knowledge. The third principle is that once both parties have led evidence, the onus of proof loses all importance. Based on these principles, the Full Bench concluded that it is sufficient if the Defendant shows that the preponderance of probabilities is in favour of drawing the conclusion that the negotiable instrument is not supported by consideration. After considering the judgment of the Full Bench and other relevant judgments, the Hon'ble Supreme Court held as under in paragraph 14: ''14.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 consideration. Such a presumption is rebuttable. The defendant can prove the non-existence of 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 dis-entitle him to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the Defendant borrowed an aggregate sum of Rs.4,15,000/- on various dates between 18.01.1997 and 08.02.2002. It also records that the Defendant borrowed a sum of Rs.50,000/- on 28.01.1997 by mortgaging an immovable property. Thus, the document clearly evidences the receipt of the sum of Rs.4,65,000/- by the Defendant. The document also bears endorsements with regard to payments made by the Defendant. Such endorsements indicate repayments between 24.05.2008 and 12.05.2014 of an aggregate sum of Rs.3,65,000/-. On the basis of this document, the only inference that can be drawn is that the sum of Rs.4,65,000/- was not repaid in full even as of 19.06.2015, which is the date specified beneath the endorsements on the document. The letter of undertaking dated 31.10.2002, which is also an admitted document, should be examined next. This letter evidences that the Defendant borrowed a sum of Rs.95,000/- from the Plaintiff's father and issued two cheques in relation thereto. The next admitted document is the promissory note dated 20.12.2002 (Ex.P9), which reflects that the Defendant borrowed a sum of Rs.50,000/-. The last document to be considered is the letter dated 30.11.2015 from ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
