1. The defendant is the appellant. The respondent in the appeal has filed O.S.No.1 of 2011 before the II Additional District Court, Tuticorin for recovery of a sum of Rs.48,40,000/- with 12% interest from the date of the suit, on the basis of a pronote dated 20.03.2009 alleged to have been executed by the defendant.

2. The defendant had filed a written statement disputing the claim along with a counter claim to declare the pronote dated 20.03.2009 as a fraudulent and forged document and for a permanent injunction to restrain the plaintiff from utilizing the said pronote.

3. The trial Court after considering the oral and documentary evidence filed on either side, decreed the suit and dismissed the counter claim. Challenging the same, the present appeal has been filed by the defendant.

4. The plaint averments are as follows:

(i)The defendant is the friend of the plaintiff and on request of the defendant, for his family expenses and business development, the defendant requested a loan of Rs.40,00,000/-.

(ii)On execution of a pronote dated 20.03.2009, the defendant received a sum of Rs.40,00,000/- agreeing to pay interest at 12% per annum. The said amount was received by the defendant at the house of the plaintiff.

(iii)Despite several requests, the defendant did not return either the principal or interest. Hence, the plaintiff issued a notice on 17.11.2010 for which a reply was issued by the defendant on 19.11.2010 with false allegations.

(iv)The defendant has no intention to repay the amount and he is attempting to alienate the properties. Hence, the present suit.

5. Summary of the written statement is as follows:

(i)The defendant has not executed any pronote on 20.03.2009 or on any other date in favour of the plaintiff. In the said pronote, the signature of the defendant has been forged.

(ii)The plaintiff is a Councilor in Tuticorin Municipal Corporation and he had submitted his assets and liabilities list at the time of the election. From the said document, it could be seen that the plaintiff does not have any means to lend a sum of Rs.40,00,000/-.

(iii)The defendant and one Balasivaji, Concern head quarters at Virudhunagar were having business transaction from the year 1998 onwards. From the year 2010 onwards, the partners of the said concern were threatening the defendant. On 24.10.2010 and 25.10.2010, the defendant received threatening calls from a mobile phone. Hence, he lodged a police complaint on the partners of the said concern on 29.10.2010.

(iv) The defendant had also sent a telegram to the police department on 09.11.2010. Infuriated by the said police complaint, the Balasivaji Concern had set up the present plaintiff and filed this fraudulent suit for recovery of money.

(v)The defendant has not received any consideration under the alleged pronote and the same has been created by the plaintiff. It is not a legally valid document and therefore, a declaration that it is a forged document and consequential injunction restraining the defendant from utilizing the said document is sought for as counter claim.

6. Reply statement filed by the plaintiff:

(i)The plaintiff is ready to produce appropriate oral and documentary evidence to prove his capacity to lend money.

(ii)The defendant has not denied execution of pronote in his reply notice and for the first time, such a defence of forgery is raised in the written statement.

(iii)In view of the allegation of forgery, the burden of proof is upon the defendant to send the document for expert opinion.

(iv)When the defendant has filed a counter claim, the burden shifts to the defendant to prove that the signature in the suit pronote is forged.

7. On the side of the plaintiff, Exhibits A1 to A4 were marked. The plaintiff was examined as PW1. One of the attestors of the suit pronote was examined as PW2. On the side of the defendant, Exhibits B1 to B10 were marked. The defendant examined himself as DW1.

8. Findings of the trial Court.

(i) The defendant has not produced any documentary or oral evidence to establish that Exhibit A1 is a forged document.

(ii) When the defendant has taken a plea that the plaintiff had forged Exhibit A1, then the burden of proof is heavily on the defendant as per Sections 101 to 103 of the Indian Evidence Act.

(iii) Since the defendant has not proved the forgery of the suit pronote, the burden is not shifted to the plaintiff and it remains on the shoulders of the defendant.

(iv) The defendant in his reply notice or in his written statement has not explained how the plaintiff came to be aware of the signature of the defendant.

(v) When PW1 has categorically stated that he is the friend of the defendant, the non sending of reply notice by the plaintiff in respect of the relationship is not fatal.

(vi) The defendant has not filed any document containing his admitted signature to compare with his disputed signature found in the pronote.