S. PERUMAL CHETTIAR Vs. T. SANTHANAM

JUDGEMENT

(1.) THE plaintiff who had lost in the Courts below is the appellant in this Second Appeal. The suit was laid by him for the recovery of a sum of Rs. 3,200 on the basis of a promissory note, Exhibit A -1, dated 23rd July, 1970 for a sum of Rs. 2,860. Since the respondent did not make any payment towards the promissory note, the appellant sent a registered notice Exhibit A -2 on 30th June, 1972, demanding the amounts due under the promissory note. The respondent herein sent a reply under Exhibit A -3, dated 3rd July, 1972, admitting the execution of the promissory note and at the same time setting out the circumstances under which the promissory note came to be executed. Since the amount was not paid in spite of the demand by the appellant, the appellant instituted the suit O.S. No. 714 of 1972 on the file of the District Munsif's Court, Periyakulam, for the recovery of the amounts due under the pro -note.

(2.) THE respondent, in his written statement, admitted the execution of the promissory note sued upon, but contended that though he had usufructuary mortgaged the properties for Rs. 3,500 in favour of the appellant, it was agreed that the respondent should continue to cultivate the properties, and in lieu of that interest at the rate of 24 per cent per annum should be paid and a lease deed to this effect was also executed by the respondent and as the interest was not paid by the respondent the promissory note was executed by him towards interest.

(3.) AGAINST this the appellant preferred an appeal A.S. No. 224 of 1972, before the Subordinate Judge, Dindigul. Before the Subordinate Judge, Dindigul, the judgment of the trial Court was challenged mainly on two grounds. Firstly, it was urged that having regard to the admission of the execution of the promissory note, the respondent had not satisfactorily established that the promissory note is not supported by consideration especially in the face of the finding of the trial Court that the promissory note represents interest due on the mortgages executed by the respondent in favour of the appellant. Secondly, it was contended before the lower appellate Court that since the promissory note represented interest on the mortgages the appellant was entitled to recover the same, though the promissory note had recited the passing of cash consideration. The learned Subordinate Judge, Dindigul, took into account the circumstances that on an earlier occasion, a similar promissory note under Exhibit B -l, dated 29th February, 1968 was executed by the respondent in favour of the appellant towards interest due, and held that the suit promissory note is not supported by cash consideration. Though the lower appellate Court did not differ from the conclusion of the trial Court that the promissory note represented interest due on the mortgages executed by the respondent in favour of the appellant, on this aspect of the case, the learned Subordinate Judge, while meeting the contention of the appellant that the appellant is entitled to recover the suit claim as interest for the mortgages, negatives the same on the ground that the mortgages have not been produced in this case and that they have also not been marked and that there is therefore, no satisfactory evidence to show that interest had not been paid for the mortgages. Ultimately, he agreed with the? trial Court and dismissed the appeal.