R ARUMUGHAM Vs. NATESAN

JUDGEMENT

(1.) The Second Appeal arises out of a reversing judgment on the suit for recovery on a Promissory Note. The plaintiff is the appellant in this appeal. According to him, for family and urgent expenses, the defendant borrowed a sum of Rs. 25,000/- on 21.09.2001 and promised to repay the same with interest at Rs. 1,000/- per month. Inspite of repeated demands and notice dated 06.11.2003, the principal with interest to the tune of Rs. 30,331/- remained unpaid and hence the suit. The defendant denied the execution of the Promissory Note and receipt of consideration. According to him, the defendant was engaged in chit transaction and that the plaintiff had taken a chit. He further submitted that a sum of Rs. 5,000/- was payable under the chit transaction which he was always ready and willing to pay. As he was unwell, he could not reply to the notice. Based on the above pleadings, the trial Court has framed three issues for consideration,

(2.) Per contra, though the defendant contended that Ex. A1 Suit Promissory Note was executed, for the amount due under the chit transaction, no oral or documentary evidence has been let in to prove his defence and therefore, the trial Court disbelieved the version of the defendant and granted a decree in favour of the plaintiff and directed payment of Rs. 30,332.25/- with interest @ 9% per annum, within a period of two months from the date of filing of the suit and thereafter, till the date of realisation at 6% per annum. Being aggrieved by the same, the defendant preferred an appeal in A.S. No. 63 of 2004, on the file of the learned Subordinate Judge, Dharmapuri, contending inter alia that the trial Court has failed to consider that the plaintiff has failed to prove that Ex. A1 Promissory Note was executed by the defendant and that the trial Court has also failed to consider that when the execution was denied, the defendant had not taken any steps for comparison of the signature in Ex. A1 Promissory Note with other admitted signatures and in such circumstances, ought to have held that the plaintiff has failed to prove his case and accordingly dismissed the suit. The defendant in his appeal has also submitted that when there was no comparison of the signature and therefore, the oral testimony of the plaintiff ought to have been given importance, particularly, when Ex. A1 Promissory Note did not contain the father's name and the addresses of the scribe and the attesting witness. According to the defendant, the lower Court has failed to consider the abovesaid major defects and erroneously decreed the suit, when no other witness except PW2 - attester was examined. On the above submissions, the appellate Court framed two issues for consideration;

(3.) Upon consideration of the material on record and rival submissions made by the parties, the lower appellate Court reversed the judgment and decree of the trial Court and accordingly, held that the plaintiff has failed to prove the suit Promissory Note and consequently dismissed the suit. Being aggrieved by the same, the plaintiff has filed the present second appeal and record of proceedings shows that the same has been admitted on the following substantial questions of law:-