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TMI Blog2025 (3) TMI 253X X X X Extracts X X X X X X X X Extracts X X X X ..... an on-demand promissory note committing to repay the debt with interest at 24% per annum. (ii) Despite the plaintiff's repeated demands, the defendant did not pay interest or repay the principal. Following repeated demands, the defendant issued a cheque bearing No.493307 dated 15.10.2016 in favour of the plaintiff for Rs.12,50,000/- drawn on ICICI Bank Limited, Coimbatore to satisfy the principal and interest payable to the plaintiff. (iii) When the aforementioned cheque was presented for collection on 16.10.2016 through the plaintiff's banker, Tamil Nadu Mercantile Bank, Somanur Branch, Coimbatore, it was returned on 17.10.2016 due to the account being closed. (iv) Knowing that there were insufficient funds in his account to honour the cheque, the defendant fraudulently issued the suit cheque and had it returned in order to avoid paying the principal and interest. Thus, on 22.10.2016, the plaintiff sent a legal notice through his lawyer requiring the defendant to repay the loan amount due within 15 days after the notice, however the notice was returned on 25.10.2016 as intimation delivered. Despite repeated demands, the defendant failed to repay the loan amount and a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of plaint till the date of decree and thereafter at 6% per annum till the date of repayment in full and the cost of Rs. 67,764.50 paise. Challenging the above-mentioned money decree, the defendant is before this court with the present appeal suit. 9. Heard Mr.N.Manokaran, the learned counsel for the appellant and Mr.S.Arjun, the learned counsel for the respondent. 10. The learned counsel for the appellant would submit that the defendant was only an Electrical Contractor for the defendant's mill - M/s.Sree Lakshmi Spinnerss and that he was responsible for resolving electrical issues in the mill whenever they arose and he worked as such until 2013 and the mill was sold. The plaintiff and one of his close associates, P.K.Rajendran (P.W.2) knew very well that the defendant's mill was sold in 2013 itself. Therefore, the plaintiff advancing the loan of huge sum to the tune of Rs.12.50 lakhs to the defendant for running his business is highly improbable. 11. The learned counsel for the defendant would further submit that when the defendant had already sold his spinning mill in the year 2013 itself and he had sufficient funds in his bank account as evident from Ex.D.5 to Ex. D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assing of consideration. Whereas the plaintiff has produced Ex.A.10 and Ex.A.11 to show that he had sufficient means to advance such huge amount as loan. The trial court has after thorough analysis of the available oral and documentary evidence decreed the suit which does not require any interference at the hands of this court. 16. In the light of the above submissions, the points that arise for consideration in this appeal suit are:- (1) Whether the suit promissory note (Ex.A.1) was supported by consideration? And if so, did the defendant issue the suit cheque to discharge a lawfully owed debt payable under the suit promissory note? (2) Whether the plaintiff has proved the execution of Ex.A.1 - Promissory Note and issuance of Ex.A.2- Cheque? (3) Whether the defendant has discharged the legal presumption attached to Ex.A.1 and Ex.A.2? Point Nos.1 to 3: 17. The suit was filed for recovery of money due under the promissory note. 18. It is the case of the plaintiff that the defendant had borrowed a sum of Rs.9,00,000/- from him and executed Ex.A.1 Promissory Note on 09.09.2014 agreeing to repay same with interest @ 24% per annum. However, the defendant had not repaid the lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 7 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 Section 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 118 of the Negotiable Instruments Act. Briefly stated, the burden of proof may be shifted by presumptions of law or fact, and presumptions of law or presumptions of fact may be rebutted not only by direct or circumstantial evidence but also by presumptions of law or fact. We are not concerned here with irrebuttable presumptions of law." [Emphasis supplied] 24. In the light of the above legal position, now, it has to be seen whether the execution of Ex.A.1-Promissory Note and Ex.A.2-Cheque have been proved to attract the legal presumption? And whether the defendant has brought out circumstances to discharge such legal presumption? 25. The fact that the plaintiff was working as an Electrical Contractor in the defendant mill is not disputed by the plaintiff. Though it was stated by the plaintiff that Ex.A.1 Promissory Note was executed by the defendant on 09.09.2014 and Ex.A.2 Cheque dated 15.10.2016 was issued by the defendant in discharge of the legally owned debt under the promissory note, during cross examination, it was clearly admitted by the plaintiff that he was an Electrical Contractor for the defendant mill. P.W.2-P.K.Rajendran in his crossexamination stated that he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the instance of P.W.2. This probability is sufficient to discharge the legal presumption available to Ex.A.1 Promissory Note and Ex.A.2 Cheque. 28. Now, the burden shifts to the plaintiff to establish the fact that consideration was passed on to the defendant under Ex.A.1 promissory note. The plaintiff has placed much reliance on Ex.A.10-Statement of Account from Axis Bank for the period between 01.08.2024 and 31.08.2024 and Ex.A.11- Statement of Account from Canara Bank for the period between 01.09.2014 to 26.09.2015 relating to Roja Textiles. According to him, from 01.08.2014 to 30.08.2014, he has sufficient funds in the account. 29. It is relevant to note that the plaintiff as P.W.1 has categorically admitted in his cross-examination that the amount advanced to the defendant did not reflect in his income tax statement. On the contrary, Ex.A.10 and Ex.A.11 Statement of Accounts have been brought into evidence only after the cross-examination of the plaintiff (P.W.1) was over. When Ex.A.10 and Ex.A.11 are perused, this court found that they relate to Roja Textiles. Of course, the accounts indicate that some amounts were available in the account maintained by Roja Textiles. To s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atsoever made by the plaintiff to recover the money, and the suit was filed only in 2019. This conduct of the plaintiff in keeping quiet and not choosing to send any legal notice to enforce the alleged legal liability in respect of the promissory note dated 09.09.2014 also cannot be ignored altogether. The trial court has completely lost sight of all these aspects of the matter and erred in decreeing the suit of the plaintiff by granting the relief of recovery of money against the defendant.
31. In the light of the above discussion, the point Nos.1 to 3 are answered in favour of the defendant and against the plaintiff. Thus, the decree and judgement of the trial court are liable to be set aside and the suit deserves to be dismissed.
In the result, the appeal suit is allowed. The Judgement and decree dated 01.12.2021 passed by the learned Principal District Judge, Tiruppur, Tiruppur District in O.S.No.34 of 2019 are set aside and the suit in O.S.No.34 of 2019 on the file of the learned Principal District Judge, Tiruppur, is dismissed. However, considering the facts and circumstances of the case, there shall be no order as to the costs. Consequently, connected CMP is closed. X X X X Extracts X X X X X X X X Extracts X X X X
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