RADHEYSHYAM Vs. KASHINATH

JUDGEMENT

(1.) THE plaintiff -non -applicant has filed a suit in the Court of Civil Judge First Class for the recovery of Rs. 1020/ - from the applicant on the basis of a Promissory note said to have been executed by him in favour of the plaintiff on 23rd September 1954, The defendant, while admitting that the Promissory note was signed by him, has pleaded that there was no consideration in support of the note. After the filing of the written statement, the plaintiff in answer to one of the interrogatories served upon him stated that the amount stated in the promissory note was not actually given to the defendant but that the amount was at the instance of the defendant debited to the account and credited to the account of Nandram Naraindas. The trial Judges framed an issue whether the promissory note was not supported by consideration and placed on the defendant the burden of proving want of consideration. The defendant then applied for placing the burden of proof of this issue on the plaintiff on the ground that according to the plaintiff's reply the consideration for the promissory note was different from that recited in the negotiable instrument. The learned trial Judge rejected this prayer of the defendant. Hence this revision petition.

(2.) I have heard learned counsel for the parties. In my opinion this revision petition must be granted. Under section 118 Negotiable Instruments Act, the court has to presume that every negotiable instrument was made or drawn for consideration. This presumption throws the burden of proving of failure of consideration on the maker of the note. But where the plaintiff himself states facts which militate against the presumption, then the presumption is destroyed and the onus is shifted on to the plaintiff to prove that the promissory note was executed by the defendant for consideration. Here the promissory note recites the payment of Rs. 1000/ - in cash to the defendant. It says - -

(3.) COSTS of this revision petition shall follow the result of the suit in the lower court.