N.RAMAMOORTHY Vs. M.MAHADEVAN (DIED)

JUDGEMENT

(1.) This second appeal arises out of a money suit. According to the plaintiff, the defendant availed cash loan from him by executing a promissory note and that he failed to repay the same even after receiving the suit notice. The suit was filed to recover the amount with interest. The trial court decreed the suit. The first appellate court reversed the decision of the trial court and dismissed the suit after holding that presumption under Sec. 118 of the Negotiable Instruments Act, 1881 could not be invoked when the transaction did not conform to the mandate set out in Sec. 269SS of the Income Tax Act, 1961.

(2.) The second appeal was admitted on the following substantial questions of law :

(3.) The case of the plaintiff was that the defendant borrowed a sum of Rs.1,50,000.00 from him on 20/7/2004 by executing Ex.A.1 promissory note undertaking to repay the same with interest @ 18% p.a. Since the defendant did not make any payment either towards principal or interest in spite of repeated demands, the plaintiff issued notice dtd. 26/9/2006 (Ex.A.2) which elicited Ex.A3 reply notice dtd. 8/10/2006. In the reply, the defendant not only denied the notice averments but also projected a different version. Since his demand was not complied with, the plaintiff filed the aforesaid suit for recovering a sum of Rs.2,00,000.00 from the defendant with interest. The defendant filed written statement controverting the plaint averments. Based on the divergent pleadings, the trial Court framed the necessary issues. The plaintiff examined himself as P.W.1 and the attestor of the promissory note, namely, Paramasivam as P.W.2. Ex.A1 to Ex.A3 were marked. The defendant examined himself as D.W.1 and one Ganesan as D.W.2. One Senthilkumar who was shown as the scribe in Ex.A1 was examined as D.W.3. Ex.B.1 and Ex.B.2 were marked. After considering the evidence on record, the trial Court by judgment and decree dtd. 7/1/2008 decreed the suit as prayed for. Aggrieved by the same, the defendant filed A.S.No.5 of 2008 before the Principal District Judge, Thanjavur. By the impugned judgment and decree dtd. 19/12/2008, the first appellate Court set aside the decision of the trial Court and allowed the appeal and dismissed the suit. Challenging the same, this second appeal came to be filed.