JUDGMENT
AR. Ramalingam, J.
1. The second appeal has been filed by one Natarajan who is the plaintiff in O.S. No. 907 of 1989 on the file of the District Munsif Court, Namakkal against the judgment and decree of the Sub Court, Namakkal in A.S. No. 68 of 1992 in and by which the Sub Judge has reversed the judgment and decree of the District Munsif Court by dismissing the suit itself.
2. The said suit was filed by Natarajan for recovery of Rs. 10,000/= with interest as mentioned in the plaint from the defendants based upon a pro note executed by them on 24.10.1987 for Rs. 10,000/=.
3. The said suit was resisted by the defendants stating that they did not execute the suit pro note on 24.10.1987 for cash consideration of Rs. 10,000/= and that on the other hand, a signed blank pro note was obtained from them by the plaintiff in connection with the chit transaction of the first defendant with one Kalaimagal Finance at Senthamangalam and that the first defendant Palaniandi has discharged the entire chit amount and that however, the plaintiff did not return the signed unfilled pro note obtained from him and lastly, the plaintiff appears to have filed this suit by filling up the said pro note for his convenience and therefore, the suit is liable to be dismissed.
4. The District Munsif, after examining the plaintiff as PW1, the scribe of the pro note viz., Ponnuamy as PW2 and the attestor of the pro note viz., Chinna Goundar as PW3 and marking the suit pro note as Ex.A1 and also examining the first defendant Palaniandi as DW1 and marking of letters sent by the plaintiff to the first defendant and second defendant as Exs.B1 to B4, has found and come to the conclusion that the suit pro note marked as Ex.A1 is true, valid and supported by consideration as claimed in the plaint and thereby the defendants are liable to pay the suit amount and consequently, decreed the suit as prayed for.
5. On appeal in A.S. No. 68 of 1992, the Sub Judge, Namakkal, after going through the judgment of the District Munsif Court and the evidence available for either side, has found and come to the conclusion that the suit pro note is not true and supported by consideration as claimed by the plaintiff and instead it came into existence only in respect of the chit transaction as pleaded in the written statement and consequently, reversed the judgment and decree of the District Munsif and dismissed the suit.
6. I have gone through the entire oral and documentary evidence available for either side in the light of the judgments of both the courts below and the arguments of the counsel appearing for either side in detail. From this, the following important and salient features borne out from the pleadings and evidence have to be taken into consideration for proper appreciation and conclusion. It is needless to point out that there is presumption under section 118 of the Negotiable Instruments Act that a pro note signed by a person is presumed to be supported by consideration. It is also to be borne in mind that such presumption is a rebuttable presumption at the instance of the person who signed the pro note. Though the defendant has made allegation in the written statement initially that the suit pro note is a forged one, subsequently, in I.A. No. 250 of 1991 on the file the District Munsif, Namakkal, the defendant has made endorsement that the signatures available in the suit pro note are that of defendants 1 and 2 and thereby the question of forgery is given a go-by. Further, the defendant has further pleaded that the suit pro note is not supported by cash consideration of Rs.10,000/= and instead it came into existence as a signed blank pro note in connection with his chit transaction for Rs.5000/= with Kalaimagal Finance wherein the plaintiff was the Manager at that time. It is also the pleading of the defendants that in connection with the said chit transaction, there was some arrears due by the defendants to the extent of Rs.1500/= and on receipt of letters marked as Exs.B1 to B4 from the plaintiff on behalf of Kalaimagal Finance, the defendant paid that arrears also in full settlement and further, he failed to get back the said signed blank pro note from the plaintiff and thereby he is not liable to pay any amount and the suit is liable to be dismissed.
7. On the other hand, the plaintiff Natarajan himself has deposed as PW1 to the effect that he actually lent Rs.10,000/= to the defendants and for that amount, the defendants executed the suit pro note marked as Ex.A1 on 24.10.1987. PW2 the scribe of Ex.A1 viz., Ponnusamy also has given evidence that it is he who wrote Ex.A1 pro note and he was present when the defendants borrowed Rs.10,000/= from the plaintiff. PW3 viz., Chinna Goundar who is the attestor of Ex.A1 also has given evidence to the effect that he was also present at the time of payment of Rs.10,000/= to the defendants by the plaintiff and in that context only he signed the suit pro note. Therefore, the evidence of P.Ws.1 to 3 coupled with Ex.A1 pro note goes to indicate that the suit pro note is supported by cash consideration of Rs. 10,000/=.
8. The first defendant is not a layman and he is admittedly a Village Administrative Officer knowing about the consequence of a pro note and court proceedings, etc. The Village Administrative Officer like the first defendant is not expected normally to say as if he discharged the entire chit transaction amount, of course, belatedly after so many letters demanding the arrears by the plaintiff and has failed to get back the signed blank pro note. It is also artificial on his part to say that he did not insist to get back the pro note either by issue of notice through counsel or by himself or some other person or atleast by taking criminal action through police. On the other hand, the plaintiff has clearly explained that no doubt the first defendant Palaniandi was having chit transaction with Kalaimagal Finance and he failed to pay some instalments to the tune of Rs.1500/= and after continuous letters marked as Exs.B1 to B4 written by him on behalf of Kalaimagal Finance, the first defendant came and paid the entire dues and immediately got back the pro note and went away and at the same time, that transaction has no connection with the transaction under Ex.A1 between himself and the first defendant separately. In this context, it is pointed out that when there is amount due under chit transaction, it is highly improbable on the part of the plaintiff to lend Rs.10,000/= to the very same first defendant on the pro note and thereby the letters marked as Exs.B2 to B4 subsequent to the date of the suit pro note go to indicate that there cannot be a separate transaction between the plaintiff and the first defendant under the suit pro note and instead the suit pro note marked as Ex.A1 itself is nothing, but, one obtained by the plaintiff from the first defendant as a signed blank pro note and filled up later on for the purpose of the suit. However, the explanation of the plaintiff as PW1 and the evidence of P.Ws.2 and 3 and the failure of the first defendant in the status of the Village Administrative Officer, in my view, goes to show that the suit pro note cannot have any connection with chit transaction as pleaded by the first defendant and it should be a separate one between the plaintiff and the defendants for cash consideration of Rs. 10,000/=. It is more so when the profession of the plaintiff is not only milk vending but also money lending admittedly. Simply because the first defendant has failed to pay some instalments towards the chit transaction, it cannot be stated that the plaintiff has no occasion or necessity to lend Rs. 10,000/= on a pro note separately. More than all, the second defendant viz., Sabapathy has not even chosen to join with the first defendant Palaniandi in preferring A.S. No. 68 of 1992 on the file of the Sub Court, Namakkal. This conduct of the second defendant also is a factor to indicate that he was not prepared to dispute the finding that the suit pro note is a true one and supported by consideration or in other words, he has chosen to accept the finding inasmuch as he has not joined the first defendant in preferring the appeal before the Sub Court.
9. Therefore, all the above observed aspects, in my view, clearly go to show the suit pro note marked as Ex.A1 as a true one and supported by cash consideration of Rs. 10,000/= as claimed by the plaintiff and it can be, in no way, construed as one which came into existence as pleaded by the defendants in the written statement. Consequently, the judgment and decree of the Sub Court, Namakkal has to be set aside and the judgment and decree of the District Munsif Court, Namakkal has to be restored.
10. In the result, the second appeal is allowed with costs and the judgment and decree of the Sub Court, Namakkal is set aside and the judgment and decree of the District Munsif Court, Namakkal is restored.