N K SUBBARAYAN Vs. CHIDAMBARA PADAYACHI

JUDGEMENT

(1.) THE defendant in the court below is the appellant in this First Appeal. The first respondent herein who died during the pendancy of the appeal and his legal representatives have been brought on record as respondents 2 to 4, has filed the suit in O. S. No. 338 of 1986 against the appellant herein for recovery of an amount of Rs. 31,750/- along with cost and interest at the rate of 9% per annum on the basis of a promissory note stated to have been executed by the defendant on 21. 07. 1983 having borrowed an amount of Rs. 25,000/- from the plaintiff, promising to repay the amount on demand with interest at one rupee per hundred per month. Since no amount has been paid either towards the principle or interest, he has issued a legal notice on 15. 07. 1986 and in spite of it the defendant has failed to pay and therefore, the suit was filed.

(2.) THE defense of the defendant as it is seen in the written statement is that the plaintiff and one Chidambara Padayachi, Natesa Padayachi and late Anantha Padayachi were the sons of Mukka Padayachi. Anantha Padayachi has left his son Mathavan and all of them have constituted a joint family carrying on money lending business. One of the brothers of the plaintiff, namely, Natesa Padayachi has filed a suit against the defendant and his sons in O. S. No. 414 of 1985, on the basis of a mortgage deed executed in his favour. According to the defendant, the suit promissory note was executed as a renewal of earlier one towards interest under the said mortgage, subject matter of suit in O. S. No. 415 of 1985 on the file of the Sub Court, Salem. Therefore, according to the defendant, the suit promissory note including other promissory notes were given to the plaintiff Chidambaram Padayachi and another. According to the defendant he has not received any amount as a consideration under the suit promissory note.

(3.) THAT apart it is also the defense that the interest claimed is usurious. The Trial Court has framed the issues as to whether the suit promissory note is supported by any consideration and also as to whether the interest claimed is usurious. The plaintiff was examined as P. W. 1 and on the defendant's side apart from the defendant who was examined as D. W. 1, there was another witness examined as D. W. 2 to support the defense of the defendant. The suit promissory note was marked as Ex. A. 1 apart from the legal notice issued and acknowledgement received by the defendant marked as Ex. A. 2 and A. 3. On the side of the defendant the mortgage deed executed by defendant and others in favour of Natesa Padayachi dated 16. 05. 1968 marked as Ex. B. 1 and the plaint and written statement filed in O. S. No. 414 of 1985 and 827 of 1986 were marked as Ex. B. 2 to B. 7 apart from another document Ex. B. 8 which a returned cover. The defendant's side has also filed another Ex. B. 9 dated 24. 06. 1985 which is a copy of the partition deed executed in the plaintiff's family. The learned Trial Judge on appreciation of evidence and considering the documents and having come to the conclusion that the defendant has not proved that Ex. A. 1 promissory note was not supported by consideration and also stating that the interest claimed at the rate of 9% is not usurious, has decreed the suit as prayed for. It was as against the judgement and decree of the Trial Court the defendant has filed the present appeal.