ORDER
A. Raman, J.
1. This appeal by the plaintiff is directed against the judgment and decree of the Prl. District Judge, Erode made in A.S.No. 188 of 1982 on 30.4.1983.
2. The plaintiff filed a suit on a promissory note contending as follows:-
The defendants borrowed a sum of Rs. 5,000 from Chennimalai Gounder and executed a promissory note in his favour on 23.8.1975 promising to repay the said sum with interest to him or his order on demand Chennimalai Gounder died on 16.5.1979. His wife and parents predeceased him. His daughters died issueless, Ponnuswamy Gounder is the brother of Chennimalai Gounder and Meenakshi Ammal is the sister of Chennimalai Gounder. Ponnuswamy Gounder died in 1977. Therefore Meenakshi Ammal is the only sole surviving heir of Chennimalai Gounder. She as the sole surviving heir inherited all the properties of Chennimalai Gounder inclusive of the suit mentioned debts. On 9.6.1976 Meenakshi Ammal assigned the suit promissory note for valuable consideration in favour of the plaintiff. Therefore the plaintiff has become entitled to the suit claim. Since the defendants did not pay the amount due, the plaintiff issued a notice calling upon the defendants to repay the amount. The defendants has sent a reply contending untrue averments. The defendants arc entitled to the benefits of Acts 4 of 1938. 10 of 1975 and 16 of 1976. As the defendants are agriculturists interest is claimed only at 9 per cent. Hence the suit.
3. The defendants pleaded as follows:-
The suit has been filed vexatiously. The suit is not maintainable. It is not true to say that the defendant actuated a promissory note, for Rs. 5,000 in favour of Chennimalai Gounder. They received only Rs. 2,500. But as per practice the defendants were compelled by Chennimalai Gounder to execute the promissory note for Rs. 5,000. Therefore the defendants accordingly executed the promissory note for Rs. 5,000. When Chennimalai Gounder was bed-ridden the defendants repaid the said sum of Rs. 2,500 with interest at 36% in the presence of witnesses present. When they demanded for the return of the promissory note they were informed that it is in the house of one Meenakshi Ammal and assured to return to them. But it was not returned. Meenakshi Ammal is not a relation or heir of Chennimalai Gounder. It is not admitted that the plaintiff obtained assignment of the suit promissory note for valuable consideration. Further the defendants are entitled to the benefits of Act 31/76 being small farmers. The defendants therefore pray that the suit be dismissed with costs.
4. Before the II Additional District Munsiff, Erode, who conducted the trial of the suit on behalf of the plaintiff, the plaintiff took the stand as P.W-1 and exhibits A-l to A-7 were marked. The second defendant examined himself as D.W-1 and another witness by name Kandasamy as D.W-2. No document was marked on the side of the defendants. The trial court found the plaintiffs case as having been made out and decreed the suit with costs as prayed for. The defendants aggrieved by the said decision took out the matter in appeal to the District Court, Erode and the prl. District Judge, Erode by his judgment dated 30.4.1983 in A.S.No. 188 of 1982 allowed the appeal in part holding that the promissory note is supported by consideration only to an extent of Rs. 2,500 and decreed accordingly. Hence the second appeal.
5. At the time when the appeal was admitted the following questions of law were formulated for consideration. They are as follows:-
(1) Whether the lower appellate court has acted correctly in decreeing the suit only for a portion of the suit amount and not the full amount, in spite of the fact that the plaintiff is an endorsee of the suit promissory note and as such, he is entitled under law to realise the full amount as a holder in due course?
(2) Whether the lower appellate Court is right in presuming that that the suit promissory note is supported by consideration only partially and not fully, when evidence to that effect has not been adduced by the defendants and when there is no rebuttal evidence for the presumption to be drawn under Section 118(a) and (g) of the Negotiable Instruments Act?
6. The points:- The execution of the promissory note is admitted. But the defendants would plead that the suit promissory note was executed for Rs. 5,000 under compulsion though actually a sum of Rs. 2,500 alone was received by them under the same. Once the execution of the promissory note is admitted, then under law the presumption relating to Negotiable Instruments Act as enshrined in Section 118 of the Negotiable Instruments Act would come into play. Therefore when such a presumption arises, naturally it has to be rebutted satisfactorily and evidence has to be adduced by the defendants to dislodge the presumption arising under law by producing before court materials both documentary and oral which would unerringly point out that in such circumstances the presumption would no longer be effective or available. The trial court has accepted the case of the plaintiff and decreed the suit while the appellate Court has chosen to hold otherwise and conclude that the presumption has been satisfactorily dislodged by the defendants. The appellate Court has chosen to hold so merely on the basis of the statement alleged to have been made by the plaintiff in the course of cross- examination. A passage in the evidence of P.W-1 has been taken out of context not only to hold that a lesser sum was paid but also to conclude on that basis that the plaintiff was also aware that only a lessor amount was paid under the promissory note. The very basis of the Appellate Court’s judgment thus is anchored on a misconceived and a hasty reading of the evidence of P.W.1. In this connection it is necessary to set out that portion of the evidence of P.W-1. What all P.W-1 has stated is as follows:-
This is the evidence of P.W-1. I do not know from where the lower appellate Court got the inspiration to read that P.W-1 has stated that she paid only a small amount. Nor it is inexplicable as to how from this an inference would follow that she was also aware that only an amount less than what was specified in the instrument was advanced by Chennimalai Gounder. It is also not known how any knowledge can be inferred or imputed to P.W-1 in that regard. Therefore, I have to say that a passage wrenched away from the context has been put to use merely to non suit a party to the suit, when such reading of the evidence is neither warranted nor justified. Even if such a thing has to be resorted to a reasonable and probable inference of the statement of the witness can alone be drawn. But what the lower appellate court has drawn is more from his imagination than from the testimony of P.W-1. It is in this connection to be pointed out that nowhere it is suggested to P.W-1 that P.W-1 was quite aware of the fact that the promissory note was only partially supported by consideration. Such a suggestion was not made to P.W-1, nor when D.W-1 was examined a case on these lines was spoken to by him.
7. Even ignoring or even after taking into account the above statement which has been the fulcrum of the finding of the lower court, we have to see whether the burden has been satisfactorily discharged by him, in relation to presumption arising under Section 118 of the Negotiable Instruments Act. It cannot be stated that the sole testimony of one of the executants of the pronote would tantamount to discharge of such burden. Now it would rebut the presumption. If that be so, the section will become meaningless. The object of the rule will be rendered nugatory. Therefore what the court expects of a party placed in such a situation to produce before court materials that would convince the court that all attempt has been justifiably made by the party to discharge the onus placed on him by the statue. Therefore the mere examination of the defendant cannot be held to amount to proper or effective discharge of the burden placed upon the defendant. For there is the evidence of P.W-1 on the side of the plaintiff while we have the evidence of the second defendant on the defendant’s side.
8. The burden cannot be discharged by superficial evidence. Cogent and satisfactory evidence-will alone help to shift the burden. The defendant cannot claim to have discharged the burden with his role interested testimony. By stepping into the witness stand he cannot contend that it amounts to effective discharge of the burden. From that a case of successful rebuttal of the presumption cannot be spelled out. To prove effective discharge of the burden and rebuttal of the presumption the defendant has to place before Court direct evidence in the shape of documents and testimonies of independent witnesses. He can do it by proving the relevant circumstances. The defendant cannot solely by pointing out the flaws in plaintiff’s case can contend to have discharged the burden.
9. Therefore we would expect a person in the position of the defendant to place before court materials in the shape of circumstances or in the shape of documentary evidence or by examining independent witnesses to show that the promissory note could not have been executed for the amount stated in the document. I have already referred to the fact that the judgment of the lower appellate court proceeds only on the footing that P.W.1 has made certain admission from which such an effect would follow. But it has been already demonstrated that a reading of the evidence of P.W.1 does not in any manner subscribe to such a view, Therefore it has to be now seen whether the testimony of D.W.1 with regard to the partial failure of the consideration would suffice. The testimony of D.W.1 cannot be taken as the be all and end all of the matter. For, we find a stand was taken by the defendants stating that the promissory note was discharged. But the defendants pathetically failed to substantiate such a contention. This would only show that the defendants have not chosen to come to court with a true case and that they are guilty of pleading a false case. Not only that, there is yet another circumstance that is also available to hold that it is dangerous to come to any conclusion on this aspect merely on the basis of the evidence of D.W.1. The defendants have stated in the written statement that they were compelled to execute the document for Rs. 5,000 though they were paid only Rs. 2,500. Such a case was not put to P.W.1 while he was in the box nor D.W.1 has chosen to speak to any threat or coercion or compulsion in his evidence. These circumstances would only show that the defendants have chosen to come forward with as many pleas as possible knowing well that these pleas raised by them are not true. There is also no explanation given by the defendants as to why they are not in a position to examine the attestots or the scribe of the promissory note to speak to the same. It is also stated that they paid a sum of Rs. 2,500 to Chennimalai Gounder when he was in his death bed along with interest and demanded the return of the promissory note. The names of certain persons are mentioned as persons who were present at that time. If that is so, the best evidence by the defendants would be to examine them not only to prove the plea of discharge, but also to incidentally show that at the earliest point of time the defendants have stated that only a sum of Rs. 2,500 was paid and that it is that amount they offered to Chennimalai Gounder and demanded the return of the promissory note. The evidence of D.W.2 was rejected by the trial court.The appellate Court has not touched this binding. Therefore in such circumstances, the lower appellate court was not justified in coming to a conclusion much less to hold that the suit promissory note is not fully supported by consideration. Therefore the burden is very much upon the defendants to substantiate their case. Merely by plucking out an answer from the evidence of P.W.1, the defendants cannot hope to have established their case with reference to the question of presumption and the discharge of the burden. Therefore in such circumstances, I am firmly of the view that the lower court has failed to take into consideration these important aspects. It is also to be pointed out that the lower appellate Court has erred grievously in holding out that the presumption placed upon the defendants by virtue of operation of Section 118 has been effectively discharged by the defendants when the defendants have not made any attempt to do so except to tender oral evidence which also consisted of only the interested testimony of the executants. Therefore the approach of the lower appellate court to the matter is neither sound nor tenable in law. Without any basis and without any evidence the lower Court has chosen to accept the case of the defendants which is really unfortunate. Therefore on analysis I hold that the lower appellate court erred in presuming that the suit promissory note is supported by consideration only partially, when there is absolutely no evidence from the defendants by way of rebuttal to dislodge the presumption raised under Section 118(a) and (g) of the Negotiable Instruments Act.
10. It is also to be pointed out that the plaintiff has categorically stated that she paid the amount as recited in the endorsement of assignment to Meenakshi Ammal the sole surviving heir of Chennimalai Gounder and thus she is a holder in due course for value. I have already referred to the fact neither when P.W. 1 was examined nor when D.W.1 was in the Box it was suggested that the plaintiff was aware of the fact that the promissory note was only partially supported by consideration, at the time when the assignment of the same was obtained by him. The evidence of P.W. 1 that she paid the full amount and obtained the consideration is also not very seriously challenged in the course of cross examination of P.W.1. In fact the courts below have held that for proper and due consideration the assignment has been obtained by the plaintiff. Therefore in such circumstances even otherwise, the plaintiff being an assignee of the promissory note for value and as a holder in due course is entitled to the amount claimed. Therefore in any view of the matter it follows that the judgment and decree of the lower appellate court cannot be sustained and that the judgment and decree of the trial court has to be restored. Therefore this appeal has to be accepted.
11. In the result, this appeal is allowed with costs. The judgment and decree of the lower appellate court is set aside. The suit will stand decreed with costs as prayed for.