TaxTMI 
TaxTMI 
2022 (4) TMI 418
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....ant 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 ....
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....eration 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 N.I. 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 cross-examination 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 ca....
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....blishing 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 t....
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....e 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 District Manager, Coimbatore and Another reported in 2000 [1] CTC 654, 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 ar....