DEEPA NARAYAN FAL DESSAI Vs. MANUEL S. MARTINS

JUDGEMENT

(1.) HEARD Mr. Coutinho, learned Counsel for the appellant. By this appeal, the appellant takes exception to the judgment and decree dated 26th August, 2010 passed by the District Court -4, South Goa, Margao in Regular Civil Appeal No. 106/2010 by which the appeal preferred against the judgment and decree dated 31st August, 2007 passed by the Civil Judge, Senior Division, Margao in Special Civil Suit No. 3/1998/A, was dismissed.

(2.) THE appellant herein is the plaintiff in the above suit filed against the respondent for recovery of an amount of Rs.3,80,000/ - along with interest thereon at the rate of 10 % p.a. on principal amount of Rs.3 Lacs. The suit was filed on the basis of promissory note dated 3rd April, 1995 in terms of which, according to the plaintiff, the defendant promised to pay an amount of Rs.3 Lacs with interest at the rate of 10 % p.a. The suit was contested by the defendant on the ground that the promissory note was without any consideration. In the course of the trial, the plaintiff did not step in the box, but her husband stepped in the box as power of attorney and in cross -examination deposed that the amount due was in connection with the land which the defendant had purchased from them. The sale deed dated 3rd April, 1995 was produced by the defendant which clearly shows that the property was purchased by the defendant from the father -in -law of the plaintiff for consideration of Rs.50,000/ -. The trial Court, upon appreciation of evidence, held that the plaintiff had failed to prove that the amount due in terms of the promissory note was in respect of the transaction which was relating to the sale of the land. The trial Court held that the plaintiff had failed to prove that she had given Rs.3 Lacs to the defendant on 3rd April, 1995. The lower appellate Court concurred with the finding of the trial Court and held that initial burden placed on the defendant stood rebutted and the plaintiff had failed to prove that the consideration has passed to the defendant.

(3.) HAVING heard the learned Counsel for the relied upon, I am of the considered opinion that no case has been made out for interference with the concurrent finding recorded by both the Courts below that the plaintiff had failed to prove that the promissory note was executed for consideration. It is pertinent to note that the plaintiff herself did not enter in the box and both the Courts have rightly held that the version of the plaintiff as deposed by her husband, who was duly constituted attorney of the plaintiff that the same was in relation to sale of plot was belied by the fact that the plot was sold for consideration of Rs.50,000/ - and as such, the case of the plaintiff that the amount due in terms of the said promissory note was in relation to sale of plot, was improbable. Even the judgment in the case of Bharat Barrel and Drum Manufacturing Company (supra) does not advance the case of the appellant. In the said case, the Apex Court has held that once execution of promissory note was admitted, the presumption under Section 118(a) of the Negotiable Instruments Act, 1881 would arise that it is supported by consideration. Such a presumption is rebuttable. The defendant can prove the non -existence of consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff, who would be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of negotiable instrument. In the present case, both the Courts have concurrently held that the defendant has been able to prove that no consideration has passed and as such, the promissory note was without any consideration. Testing this finding on the touchstone of probability, the same cannot be said to be perverse and as such, the finding recorded by both the Courts is not liable to be interfered with in Second Appeal. In my considered opinion, no substantial question of law is involved in the present matter. Hence, the appeal is summarily rejected.