JUDGMENT : P.Krishna Kumar, J. The suit for recovery of money based on a demand promissory note was decreed in part by the trial court by the judgment impugned in this appeal. The appeal is preferred by the plaintiff challenging the judgment to the extent the plaint claim was declined. 2. For the sake of convenience, the parties are hereinafter referred to as they were arrayed in the suit. The plaintiff contended that, in June 2016, the defendant, who was a close acquaintance, requested a loan of Rs.50,00,000/- for procuring gold for commercial purposes. The plaintiff allegedly lent him Rs.48,00,000/- by withdrawing Rs.13,00,000/- on 27.06.2016, Rs.18,00,000/- on 02.08.2016 and another Rs.17,00,000/- on 19.08.2016. On 23.08.2016, the defendant allegedly executed a promissory note in favour of the plaintiff for Rs.48,00,000/- carrying interest at the rate of 12% per annum. Since the defendant failed to repay the amount as agreed, the plaintiff issued a notice dated 14.08.2017 and thereafter instituted the suit on 16.08.2017. 3. The defendant resisted the suit by vehemently denying the above allegations. According to him, he was not a close acquaintance of the plaintiff, but was only an employee of a gold merchant who was a close friend of the plaintiff. The plaintiff, according to the defendant, was a money lender from whom he had borrowed Rs.5,00,000/- on 09.03.2012 carrying monthly interest at the rate of 5%, and he had been paying Rs.25,000/- per month towards interest till January 2017. According to him, the payments already made by him are sufficient to discharge the principal amount together with reasonable interest. At the time of availing the loan, the plaintiff obtained from him a blank signed paper affixed with a revenue stamp, apart from certain other blank signed documents. The defendant further contended that the alleged promissory note was fabricated using the said blank stamp paper. 4. The evidence in this case consists of the oral testimony of PW1 to PW3 and DW1 and documentary evidence marked as Exts.A1 to A6 and B1 to B11. Upon an evaluation of the oral and documentary evidence, the trial court concluded that the plaintiff failed to prove the execution of Ext.A1 promissory note and, therefore, was not entitled to recover Rs.48,00,000/- from the defendant.
Upon an evaluation of the oral and documentary evidence, the trial court concluded that the plaintiff failed to prove the execution of Ext.A1 promissory note and, therefore, was not entitled to recover Rs.48,00,000/- from the defendant. However, observing that the defendant failed to prove discharge of the loan transaction admitted by him, the trial court directed the defendant to pay Rs.5,00,000/- with interest to the plaintiff. 5. We have heard Sri.Sreekumar Chelur, the learned counsel appearing for the appellant/plaintiff and Sri.Santhosh P.Poduval, the learned counsel appearing for the respondent/defendant. 6. In view of the rival contentions, the point that arises for consideration is whether the defendant executed Ext.A1 promissory note and whether he is liable to pay the plaint amount. 7. The plaintiff was examined before the court as PW1. In his proof affidavit, the plaintiff reiterated the case pleaded in the plaint. PW2 and PW3 were also examined by the plaintiff in support of his contention regarding the execution of Ext.A1. Both of them deposed that they had witnessed the execution of the promissory note by the defendant. PW3 went further and stated that he had witnessed the defendant receiving Rs.13,00,000/- on 27.06.2016, Rs.18,00,000/- on 02.08.2016 and Rs.17,00,000/- on 19.08.2016 at the office of the plaintiff. 8. Sri. Sreekumar Chelur, the learned counsel appearing for the plaintiff, persuasively argued that, since the defendant admitted his signature in Ext.A1 and PW1 to PW3 consistently deposed before the court that the defendant had affixed his signature and thumb impression on Ext.A1 on 23.08.2016 in their presence, the trial court was bound to draw the presumption under Section 118 of the Negotiable Instruments Act, 1881 that Ext.A1 was supported by consideration and, therefore, there was no justification for negativing the claim made by the plaintiff. It is pointed out that there were corresponding bank withdrawals from the account of the plaintiff as evidenced by Exts.A5 and A6. The learned counsel further emphasized the lacunae in the defence case and the improbabilities therein. Sri. Santhosh P. Poduval, the learned counsel appearing for the defendant, on the other hand, contended that the case set up by the plaintiff totally lacked bona fides and was self-contradictory on several material aspects. 9. On a careful evaluation of the evidence, we find it difficult to accept the contentions raised by the plaintiff.
Sri. Santhosh P. Poduval, the learned counsel appearing for the defendant, on the other hand, contended that the case set up by the plaintiff totally lacked bona fides and was self-contradictory on several material aspects. 9. On a careful evaluation of the evidence, we find it difficult to accept the contentions raised by the plaintiff. First of all, the plaint is absolutely silent regarding the date on which the plaintiff allegedly lent money to the defendant. What is stated therein is only that the plaintiff had withdrawn Rs.48,00,000/- on three different occasions and lent the same to the defendant. It is not stated when the plaintiff lent money to the defendant. The relevant part of paragraph 3 of the plaint reads as follows: The proof affidavit of the plaintiff, being substantially a reproduction of the averments in the plaint, does not explain the matter any further. However, for the first time in cross- examination, he stated that the respective amounts were handed over to the defendant on the corresponding dates at the office of the plaintiff. Significantly, when the chief affidavit of PW3 was filed subsequently, a statement consistent with the above improved version of the plaintiff was introduced therein. According to PW3, he was present at the office of the plaintiff on those days and had witnessed the defendant receiving the respective amounts. 10. The plaintiff made a material contradiction while introducing the dates on which the amounts were allegedly paid to the defendant, with respect to the place where the amounts were allegedly handed over. He deposed that all the transactions took place at his office. Contrary to the specific pleading in the plaint that the amount was handed over to the defendant at the residence of the plaintiff, he specifically stated that no amount was given at his residence. Though the plaintiff attempted to amend the plaint by filing I.A. No.3186/2019 so as to delete the contradictory averment, the trial court declined the said attempt holding that the proposed amendment was intended to efface the effect of a material contradiction in the plaintiff’s case, which could not be permitted after the commencement of the trial, particularly when the defence case was one of total denial of such transactions. 11.
11. We are not unmindful of the fact that parties may commit mistakes while making pleadings and that, in appropriate cases, it may become necessary to permit correction of such mistakes. However, while analysing the various circumstances appearing in this case, we do not find this to be one such mistake. 12. Even though PW2 and PW3 claimed that they had witnessed the execution of Ext.A1 promissory note, they were not shown as attesting witnesses in Ext.A1, which is styled as an undertaking , not as a promissory note. They claimed that they were present at the office of the plaintiff, when the defendant signed Ext.A1. The residence of the plaintiff is admittedly away from the town. More significantly, neither of them was able to depose as to who prepared the promissory note. Their explanation that the defendant himself brought the document already prepared appears highly improbable, considering the magnitude of the amount covered by the document, which is said to be the sole piece of evidence fixing liability on the defendant. It also came out in evidence that both the witnesses had worked under the plaintiff and were his close associates. 13. Even if the above contradiction is ignored, several other suspicious circumstances emerge from the plaintiff’s case. In cross-examination, he admitted that he is the Chairman of Adam Bazar Kuries and that the defendant had subscribed to three kuries therein on a monthly payment of Rs.4,000/- from March 2011 onwards, and had committed default in payment thereof. The plaintiff further stated that a case had also been instituted in that regard against the defendant. 14. Viewed in the above background, it appears highly improbable that the plaintiff would lend Rs.48,00,000/- to the defendant and that too without obtaining any document at the time of advancing the amounts. Going by the plaintiff’s own case that he had paid Rs.13,00,000/- on 27.06.2016, Rs.18,00,000/- on 02.08.2016 and Rs.17,00,000/- on 19.08.2016, admittedly all the amounts were advanced before obtaining Ext.A1, which was allegedly executed only on 23.08.2016. 15. Further, the plaintiff admitted in cross-examination that the amount allegedly lent to the defendant was raised through three loans availed by him. Apparently, the rate of interest payable on those loans was higher than the rate of interest claimed in the promissory note as well as in the plaint. 16.
15. Further, the plaintiff admitted in cross-examination that the amount allegedly lent to the defendant was raised through three loans availed by him. Apparently, the rate of interest payable on those loans was higher than the rate of interest claimed in the promissory note as well as in the plaint. 16. That apart, the plaintiff specifically pleaded in paragraph 4 of the plaint that, while borrowing Rs.48,00,000/-, the defendant had assured that the amount would be repaid within two months by selling the finished gold ornaments to jewellery shops. Significantly, Ext.A2 notice was issued only nearly one year thereafter, namely on 14.08.2017. No explanation whatsoever is forthcoming for such delay. Thus, we find some merit in the contention of the defendant that the above incongruity arose only because the plaintiff subsequently built up a case based on available bank transactions as reflected in Exts.A5 and A6. 17. Considering all the above circumstances, we have no hesitation in holding that the plaintiff failed to prove the due execution of Ext.A1. The question of drawing a presumption under Section 118 of the Negotiable Instruments Act, 1881 arises only when the plaintiff succeeds in discharging his initial burden of proof, when the execution of document is stoutly denied by the defendant. It is settled law that mere admission of signature in the promissory note will not amount to proof of execution of the document [ Santha v. Rajappan Pillai ( 1986 KHC 320 ) and Velayudhan v. Velayudhan ( 2001 KHC 113 )]. Unless the plaintiff succeeds in proving his case, no useful purpose would be served by pointing out the weaknesses in the defence case. 18. At any rate, on an analysis of the oral and documentary evidence adduced by both sides, we find the contention of the defendant that Ext.A1 was created using the blank signed stamp paper given by him while borrowing Rs.5,00,000/- from the plaintiff in 2012 to be more probable than the plaintiff’s version regarding the execution of Ext.A1. When both sides have adduced evidence, the court is required to evaluate the same on the touchstone of probabilities, in which event presumptions of law have only a limited role to play. 19. In the above circumstances, the trial Court is completely justified in rejecting the plaint claim and ordering recovery of Rs.5,00,000/- based on the admission of the defendant.
When both sides have adduced evidence, the court is required to evaluate the same on the touchstone of probabilities, in which event presumptions of law have only a limited role to play. 19. In the above circumstances, the trial Court is completely justified in rejecting the plaint claim and ordering recovery of Rs.5,00,000/- based on the admission of the defendant. Therefore, the appeal lacks merit and is liable to be dismissed. In the result, the appeal is dismissed and the impugned judgment is upheld. No costs.