M SHANMUGHAM Vs. S RANGASAMY GOUNDER

JUDGEMENT

(1.) THE appellant is the defendant in O.S.No.206 of 1985 on the file of the Subordinate Judge's Court, Sankari. THE respondent herein is the plaintiff in the said suit for recovery of Rs.65,900.

(2.) THE plaint averments are that on 26.11.1981, the defendant borrowed a sum of Rs.50,000 as loan from the plaintiff for his family expenses, and executed a promissory note promising to pay the said sum with interest at 18% p.a. either to the plaintiff or to his order on demand. It is stated that the defendant has not paid any amount either towards the principal amount or towards the interest in spite of demands, and even after issue of notice and hence the suit was filed for recovery of the suit promissory note debit.

(3.) LEARNED counsel for the appellant relied on the judgment of this Court reported in Duraisami Chettiar Sons v. Rathnaswami Gounder (1991)2 MLJ. 183. This Court in the above case held that the plaintiff in that case was a professional money lender and has deliberately suppressed his account books and the rebuttal under Sec.118 of the Negotiable Instruments Act need not necessarily be by direct evidence. I am of the view that the said decision has no application. In that case, the defendant has called upon the plaintiff to produce the account books to prove the payment and the plaintiff has stated in the box that he will produce the account books within four hours to prove the fact of payment, but he never produced the account books inspite of adjournments and notice. The plaintiff then deposed that the account books were with the auditor and when he made efforts to get the said account books from the auditor, the auditor said that he would look up and give them to the plaintiff. Since the plaintiff has purposely suppressed the account books, the non. production of the account books would disprove his case. The trial Court in that case held that the non-production of the account books by the plaintiff would show that no money was advanced by the plaintiff to the defendant. It is in the circumstances of the case, this Court held that since there was a deliberate suppression in a production of account books, the defendant has discharged the burden under Sec.118 of the Negotiable Instruments Act. This Court also held that the rebuttal of presumption under Sec.118 of the Negotiable Instruments Act by the defendant need not always be direct evidence that will be adduced by the defendant, and the Court on the basis of the evidence as a whole can draw an adverse inference against a party who was in possession of account books who is expected to adduce better evidence, but deliberately abstained from doing so. I hold that the said decision is not applicable to the facts of the case.