JAYAKANDAMMAL Vs. KODIAN

JUDGEMENT

(1.) The plaintiff is the appellant. The plaintiff has filed a suit for recovery of Rs. 5,581/- from the defendant due under a promissory note. The case of the plaintiff was that on 1-5-1974 the defendant borrowed a sum of Rs. 4,000/- and in evidence of the same, he executed a promissory note agreeing to repay the same with interest at the rate of 12% per annum. The plaintiff has alleged that the defendant has not paid the money and the plaintiff issued a lawyer's notice on 17-11-75, since the defendant has not paid the money in spite of the demand the plaintiff filed a suit for recovery of Rs. 5,581/-. The defendant though raised a plea that he has not only not borrowed the money and executed the suit promissory note, but also raised a plea that he was entitled to the benefits of a 'small farmer' as defined under Tamil Nadu Debt Relief Act, 1976 (Act 31 of 1976). The trial Court dismissed the suit filed holding that the defendant has not executed the suit promissory note and the defendant was also entitled to the benefit of Act 31 of 1976. The plaintiff filed an appeal before the Subordinate Judge, Vridhachalam. The appellate Court found, on the basis of the evidence, that the defendant had received the sum of Rs. 4,000/- from the plaintiff at the rate of 12% per annum and the suit promissory note was executed for consideration in evidence of the loan. In so far as the other point namely, whether the defendant was entitled to the benefit of Act 31 of 1976 was concerned, the appellate Court agreed with the reasoning and conclusion of the learned trial Judge and held that the plaintiff was entitled to the benefit of Act 31 of 1976 and dismissed the appeal.

(2.) The plaintiff has filed the present appeal against the judgment and decree of the lower appellate Court dismissing the suit.

(3.) The only contention urged on behalf of the appellant is that the defendant was claiming the benefits assured under Act 31 of 1976 and the claim made by the defendant is a statutory benefit and the burden of proof is on the defendant to clearly establish before the Court that he was entitled to the benefit of Act 31 of 1976. The learned counsel for the appellant submitted that the defendant has produced only the mortgage deed but the defendant has admitted in the written statement that he and his brother were having 1.24 acres of wet land and in view of the admission the defendant is not entitled to the benefit of Act 31 of 1976. According to the learned counsel for the appellant the defendant has not produced revenue records nor the patta in support of his plea for claiming the benefit of Act 31 of 1976 and hence it was not open to him to rely upon the mortgage deed to prove the case that he was entitled to the benefit of Act 31 of 1976.