KUNHIKALANDAR Vs. ABDUL KHADER

JUDGEMENT

(1.) Plaintiff sues on a promissory note for Rs. 5000/- executed by the defendant on 19-9-1958. The only plea of the defendant that is relevant for the purpose of this second appeal is one that the promissory note is not supported by consideration to the extent of Rs. 1900/-. This plea was accepted by the Trial Court and in appeal by the plaintiff this has been confirmed. Though plaintiff called into aid the presumption under S.118(a) of the Negotiable Instruments Act, 1881, the courts below have held that the benefit of that presumption would not be available to the plaintiff since, even the plaint allegations would show that the payment of consideration was not in the manner mentioned in the promissory note.

(2.) Ext. A1, the promissory note, mentions the consideration of Rs. 5000/-as paid in cash. But in the plaint it is averred by the plaintiff that Rs. 1600/- was paid by way of cheque, Rs.1900/- was paid in cash and later the sum of Rs. 1500/- was paid by cheques. The payment of consideration in cash on 19-9-1958, the date of execution of the promissory note, is denied by the defendant. If the presumption under S.118(a) could be called into aid and such presumption would also extend to presuming that consideration as recited in the document was paid, then plaintiff will succeed even without proving the payments. On the evidence the courts below have come to the conclusion against the plaintiff. But what the appellate court has stated is this: "The result is that the evidence "adduced by both parties is found to be unreliable and unsatisfactory. When the court is unable to arrive at a determinate conclusion on the evidence adduced by both parties, the burden of proof on the pleading must turn the scale. The plaintiff having failed to prove that the promissory note is supported by consideration to the extent of Rs. 1,900/-the conclusion of the learned Munsiff cannot be said to be incorrect." On the evidence I am not prepared to hold that I should come to different conclusion in the second appeal. If plaintiff does not succeed on the basis of the presumption he calls into aid it must follow that the decision of the courts below must stand.

(3.) The question really turns on the construction of S.118(a) of the Negotiable Instruments Act of 1881. This section reads as follows: