JANAKIRAMAN CHETTIAR Vs. NARASIMHAN

JUDGEMENT

(1.) THIS appeal suit is directed against the judgment and decree dated 3. 7. 1987 made in O. S. No. 130 of 1985 by the court of subordinate judge, Din digul thereby decreeing the suit, as prayed for, which had been filed by he respondent praying to pass a decree for a sum of Rs. 31,706. 25 with interest and costs.

(2.) TO trace the history of the case, the respondent herein-filed the suit on averments that the defendant borrowing a sum of rs. 25,000 from the plaintiff on 29. 7. 1982 for his business, executed the suit pronote at Palani agreeing to repay the same with interest at 18% p. a. and since the defendant did not repay the said sum in spite of repeated demands, the plaintiff issued a notice dated 27. 5. 1985, for which the defendant issued a reply dated 4. 7. 1985 with false and untenable allegations, admitting the execution of the pronote but denying the circumstances under which it had been executed and further denying the passing of the consideration under the pronote and hence the plaintiff has come forward to file the suit for recovery of the sum of Rs. 31,706. 25 ps. with interest and costs.

(3.) IN reply, the learned counsel appearing on behalf of the respondent/plaintiff would submit that the defendant admits execution of the pronote but comes forward to say that no consideration was passed under the pronote. Pointing out Section 118 of the Negotiable INstruments Act, the learned counsel would exhort that it is a rebuttal presumption, which goes against the defendant wherein the Court could presume the execution of the pronot e for consideration in the manner alleged, but, on the other hand, the defendant would say that an amount Rs. 25 ,000 was returned from out of the sale consideration of the house belonging to the insane person in favour of the wife of. the defendant for the plaintiff to contest the suit filed by some of the co-sharers; that the defendant also comes forward to say that he had discharged the amount borne by the pronote and once the plea of discharge is taken, the execution of the pronote , to the version of the plaintiff, is to be presumed by the court. Citing from the evidence of the d. W. 2 and from Ex. B. 2, the letter written by the plaintiff to D. W. 2, the learned counsel would point out that the plea of discharge is not available for the appellant/defendant since he admitted the execution of the pronote.