1. The unsuccessful defendant in the suit in OS.No.2501/2012 on the file of the learned I Assistant Judge, City Civil Court, Chennai, is the appellant in this Second Appeal.

2. The respondent herein, as plaintiff, filed the suit in OS.No.2501/2012 for recovery of a sum of Rs.7,60,000/- with interest @ 24% per annum on the basis of a demand Pronote stated to have been executed by the defendant in favour of the plaintiff on 02.02.2010.

3. The case of the plaintiff in the plaint is that she got ex-gratia amount and several amounts of money on various occasions by way of compensation for the untimely death of her husband who was working as an Office Assistant in the Coast Guard, Ministry of Defence, Chennai. The plaintiff is working as Assistant in the Electronics Corporation of Tamil Nadu, [ELCOT], Anna Salai, Chennai. It is her further case that the defendant/appellant is a colleague of the plaintiff and was working as the Branch Manager at ELCOT.

4. It is the specific case of the plaintiff that on several occasions, the defendant/appellant sought financial assistance from plaintiff and borrowed money from her as hand loan to clear his debts borrowed from various creditors. It is further stated that the plaintiff had given a sum of Rs.5,00,000/- in all and the defendant executed a demand Promissory Note on 02.02.2010 in favour of the plaintiff acknowledging the debt and promised to repay the said amount with interest @ 24% p.a., on demand. Stating that the appellant/defendant failed and neglected to repay the money borrowed from the plaintiff, the plaintiff came forward with the suit for recovery of a sum of Rs.7,60,000/-, being a sum of Rs.5,00,000/- towards principal and Rs.2,60,000/- towards interest.

5. The suit was resisted by the appellant by filing a written statement, denying every averments made in the plaint. The execution of the suit pronote was also denied by the appellant. Stating that the plaintiff has not given the exact dates on while the appellant borrowed money from the plaintiff, it is also contended that the suit is hopelessly barred by limitation. Since the pronote contains a clause that the entire amount should be repaid on or before 01.02.2012, it is also contended by the appellant that the pronote produced by the plaintiff is not a pronote in the strict sense and hence, the suit is not maintainable on the basis of such pronote. Since it is admitted by the plaintiff herself that amounts were advanced on different occasions and that no amount was paid on the date of pronote, the appellant further contended that there is no consideration passed on the date of execution of the alleged pronote and the suit is liable to be dismissed.

6. Before the Trial Court, the plaintiff examined herself as PW1 and examined one Stanis Laus, the attestor of pronote as PW2. The plaintiff also produced Exs.A1 to A7 to support her case. However, the defendant examined himself as DW1 and filed Exs.B1 and B2 which are only the letter issued by the defendant's counsel to the plaintiff's counsel with acknowledgment. The Trial Court, after framing issues, found that the plaintiff has proved that the suit pronote was executed by the defendant for consideration. Since the Trial Court found that the suit pronote was supported by consideration a decree was granted as prayed for. Aggrieved by the same, the defendant preferred an appeal in AS.No.187/2015 on the file of the learned XVII Additional Judge, [Full Additional Charge of XVI Additional Court], City Civil Court, Chennai.

7. The Lower Appellate Court also confirmed the findings of the Trial Court and dismissed the appeal. Aggrieved by the concurrent judgments and decrees of the Courts below, the above Second Appeal has been preferred by the defendant in the suit.

8. In the Memorandum of Grounds of Second Appeal, the appellant has raised the following substantial questions of law:-

1. Whether not the Courts below grossly erred in applying the presumption under Section 118 of the NI Act, when execution of the so called pronote [Ex.A6] is not admitted

2. Whether not the Courts below erred in bypassing the law laid down by the Supreme Court in S.Narayana Menon Vs. State of Kerala [AIR 2006 SC 3366 [LQ/SC/2006/547] ] that the defendant has the right to ask the Court to consider the non existence of the consideration so probable that a prudent man ought, under the facts and circumstances of the case, to act upon the supposition that consideration did not exist

3. Whether not the Courts below erred in treating Ex.A6 as a pronote When Ex.A6 is not a negotiable instrument, the presumptions under Section 118 of the NI Act do not apply to the case.

4. Whether not the suit is barred by limitation if no dates specified/pleaded for borrowing money in a money suit

5. Whether the court can place reliance upon the suggestion put to a witness during crossexamination amount to an admission of the execution of the pronote

6. Whether the Court can shift the burden of proof upon the appellant and apply statutory presumption under Section 118 [2] of the Negotiable Instruments Act when execution is denied

7. Whether not the burden of proving the passing of consideration is upon whom in a money suit; whether it is upon the plaintiff

9. In the present case, the Courts below have specifically held that the plaintiff has proved the execution of the pronote. Though the appellant disputed his signature in the pronote, he did not take any steps to send the document for expert's opinion. There is a presumption under Section 118 of the Negotiable Instruments Act if execution of the pronote is proved. In the instant case, the specific case of the plaintiff is that the appellant borrowed hand loans on several occasions and executed a pronote subsequently and agreed to repay the amount with interest @ 24% p.a. The appellant has not pleaded any motive against the plaintiff for filing the suit for recovery of a huge sum when no money is due. Existence of consideration though disputed by the defendant, after proper appreciation of evidence, the Courts below have found that the pronote is supported by consideration.

10. The contention of the learned counsel for the appellant that the suit pronote under Ex.A6 is not a negotiable instrument, cannot be countenanced. The learned counsel submitted that the plaintiff having admitted that money was advanced to the defendant on several occasions, did not come forward to state the dates and particulars of every borrowal to prove the actual consideration. It is further stated that the plaintiff has come forward with the specific case that no money was paid at the time when the pronote was executed and she is supposed to prove the passing of consideration. It was also submitted that in the absence of any plea or proof regarding the passing of consideration as contended by the plaintiff in the plaint as well as in the course of trial, the burden of proof shifts on the plaintiff/respondent and the Courts below have erroneously applied the statutory presumption u/s.118 of the Negotiable Instruments Act.

11. Learned counsel for the appellant also relied on the judgment of the Hon'ble Supreme Court in the case of Kundan Lal Rallaram Vs. The Custodian Vs. Evacuee Property, Bombay reported in AIR 1961 SC 1316 [LQ/SC/1961/125] , wherein the Hon'ble Supreme Court has held as follows:-

5. This section lays down a special rule of evidence applicable to negotiable instruments. The presumption is one of law and thereunder a court shall presume, inter alia, that the negotiable instrument or the endorsement was made or endorsed for consideration. In effect it throws the burden of proof of failure of consideration on the maker of the note or the endorser, as the case may be. The question is, how the burden can be discharged The rules of evidence pertaining to burden of proof are embodied in Chapter 7 of the Evidence Act. The phrase “burden of proof” has two meanings — one the burden of proof as a matter of law and pleading and the other the burden of establishing a case; the former is fixed as a question of law on the basis of the pleadings and is unchanged during the entire trial, whereas the latter is not constant but shifts as soon as a party adduces sufficient evidence to raise a presumption in his favour. The evidence required to shift the burden need not necessarily be direct evidence i.e., oral or documentary evidence or admissions made by opposite party; it may comprise circumstantial evidence or presumptions of law or fact. To illustrate how this doctrine works in practice, we may take a suit on a promissory note. Under Section 101 of the Evidence Act, “Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist”. Therefore, the burden initially rests on the plaintiff who has to prove that the promissory note was executed by the defendant. As soon as the execution of the promissory note is proved, the rule of presumption laid down in Section 118 of the Negotiable Instruments Act helps him to shift the burden to the other side. The burden of proof as a question of law rests, therefore, on the plaintiff; but as soon as the execution is proved, Section 118 of the Negotiable Instruments Act imposes a duty on the court to raise a presumption in his favour that the said instrument was made for consideration. This presumption shifts the burden of proof in the second sense, that is, the burden of establishing a case shifts to the defendant. The defendant may adduce direct evidence to prove that the promissory note was not supported by consideration, and, if he adduced acceptable evidence, the burden again shifts to the plaintiff, and so on. The defendant may also rely upon circumstantial evidence and, if the circumstances so relied upon are compelling, the burden may likewise shift again to the plaintiff. He may also rely upon presumptions of fact, for instance those mentioned in Section 114 and other sections of the Evidence Act. Under Section 114 of the Evidence Act, “The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case”. Illustration (g) to that section shows that the court may presume that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. A plaintiff, who says that he had sold certain goods to the defendant and that a promissory note was executed as consideration for the goods and that he is in possession of the relevant account books to show that he was in possession of the goods sold and that the sale was effected for a particular consideration, should produce the said account books, for he is in possession of the same and the defendant certainly cannot be expected to produce his documents. In those circumstances, if such a relevant evidence is withheld by the plaintiff, Section 114 enables the court to draw a presumption to the effect that, if produced, the said accounts would be unfavourable to the plaintiff. This presumption, if raised by a court, can under certain circumstances rebut the presumption of law raised under Section 118 of the Negotiable Instruments Act. Briefly stated, the burden of proof may be shifted by presumptions of law or fact, and presumptions of law or presumptions of fact may be rebutted not only by direct or circumstantial evidence but also by presumptions of law or fact. We are not concerned here with irrebuttable presumptions of law.

12. The learned counsel also relied upon a few judgments of this Court rendered earlier and submitted that the burden of proof shifts to the shoulders of the plaintiff when the evidence of the plaintiff is contrary to the terms of the Negotiable Instruments Act.

13. The learned counsel for the appellant vehemently argued that the statutory presumption u/s.118 of the Negotiable Instruments Act has been rebutted in the present case and this Court should draw adverse inference against the plaintiff for not giving the particulars of several transactions which are the basis for filing of the suit. Lastly, the learned counsel relied upon the judgment of a learned Single Judge of this Court in the case of V.K.Siddha Padayachi Vs. Indian Bank Branch at Shevapet, Salem, rep.by its Distict Manager, Coimbatore and Another reported in 2000 [1] CTC 654 [LQ/MadHC/1999/120] , wherein it is held as follows:-

11. Notwithstanding the defects pointed out above, the learned counsel appearing for the plaintiff/respondent would stated that (1) when once the execution of the promissory note has been admitted, the defendant cannot escape liability, (2) that the presumption arising out of Section 114 of the Evidence Act and Section 118 of the Negotiable Instruments Act would be attracted and that (3) the issue being a question of fact may not be interfered with under Section 100 of Civil Procedure Code. It is true that it is a settled proposition of law that when once the execution of the promissory note is admitted, the burden shifts to the defendant to plead and to prove the absence of consideration or the quantum of consideration or the discharge of the due amounts etc. But, it is equally settled that the said burden of proof is a rebuttable one which could be discharged either when it is shown that no consideration was paid or that on the facts pleaded by the plaintiff himself, it is established that the recital in the promissory note does not reflect the correct facts. On the facts of the present case, admittedly no amount was paid to the loanee on the date of the promissory note much less is there any evidence to prove that a pumpset was delivered to him on that date or any subsequent date and that the amount was paid only to a third party. Apart from the fact that particulars of the Pay Order which is alleged to have been given to the supplier, has not been filed in court, no evidence has been adduced to prove the fact that the defendant was supplied with a pumpset. As stated earlier, the inspection notes alleged to have been maintained by the Agricultural Officer (P.W.2) in which it is claimed that the details of the pumpset had been noted, has not been filed in court. In this background what would be the weight of the statutory presumption in favour of a promissory note is best expressed in the following decisions.

14. From the judgments relied upon by the learned counsel for the appellant, it is seen that shifting the burden of proof depends upon the facts and circumstances of each case. In a case of pronote, there is an initial burden on the plaintiff which shifts on the defendant when the defendant admits execution of pronote. In the instant case, the defendant did not admit the execution of pronote. However, based on evidence, the Courts below have held that the execution of pronote is proved. As per the pronote, the amount was borrowed on the date of pronote. However, the pleading of the plaintiff is specific that the consideration for the pronote was the money borrowed by the defendant on various occasions. Therefore, the case of the plaintiff is that the suit pronote is supported by consideration. Merely because the plaintiff advanced loan to the defendant on various dates and the defendant executed the pronote subsequently in recognition of his liability, it cannot be said that the pronote is not supported by consideration. There is no difficulty in accepting the legal position that a statutory presumption is always rebuttable. However, in the present case, the plaintiff has taken meticulous efforts to prove the transaction. Having regard to the pleadings and the evidence adduced by the both sides before the Trial Court, this Court justifies the findings of the Courts below that the pronote executed by the defendant is supported by consideration.

15. In the instant case, no motive was specifically pleaded by the appellant against the plaintiff/respondent for filing the suit on the basis of pronote. In a suit based on pronote, the question regarding consideration cannot be decided merely on the basis of pleadings of parties. After considering the entire evidence on record, the Courts below have come to the conclusion that the suit pronote is supported by consideration. From the facts narrated, this Court is unable to agree with the appellant that the respondent/plaintiff has withheld any evidence to give room for drawing any adverse inference.

16. From the entire evidence as discussed by Courts below, this Court comes to the definite conclusion that the suit pronote was executed by the appellant/defendant in favour of the respondent/plaintiff and it was supported by consideration. In view of the concurrent findings of facts, this Court is unable to find a valid reason to interfere with the judgments and decrees of the Courts below.

17. This Court is also unable to find substance in any of the substantial questions of law framed by the appellant, in view of the nature of the findings of the Courts below and the scope of Section 100 of CPC.

18. In view of the foregoing discussions, this Court is of the view that the Second Appeal is liable to be dismissed for want of merits.

19. In fine, the Second Appeal is dismissed.