T. Ramaprasada Rao, J.
1. These two appeals arise out of two original suits, O.S. Nos. 290 and 299 of 1970, on the file of the Court of the Subordinate Judge of Madurai, They are connected in the sense that the plaintiff in one suit (O.S. No. 290 of 1970) is the husband of the plaintiff in the other (O.S. No. 299 of 1970) and the defendants are common. For the purpose of convenience, we snail take up Appeal No. 260 of 1971 which is against the judgment and decree in O.S. No. 290 of 1970. The plaintiff's case that defendant's 2 and 3, partners of the first defendant, Sri Devi Talkies, borrowed a sum of Rs. 55,000 on 26th February, 1970 gave a bearer cheque on the Thanjavur Permanent Bank limited fax the said amount, undertook to repay the amount within a few days thereafter and gave an assurance to the plaintiff that the cheque (Exhibit A-1) given by them could be presented for encashment after seventeen days. In furtherance of the assurance, as also in evidence of the borrowing, the defendants executed a letter Exhibit A-3, which also bears the same date as the bearer cheque. Under Exhibit A-3 the defendants unconditionally acknowledged that they had discounted the cheque for Rs. 55,000 for cash received, less discounting commission of Rs. 421.50. They also requested the plaintiff to present the cheque for payment on 15th March, 1970. The defendants undertook that, if the cheque was dishonoured for any reason, they would pay the said amount of Rs. 55,000 on demand together with interest at eighteen per cent, per annum till the date of payment. According to the plaintiff, though the thavanai period expired on 15th March, 1970 at the request of the defendants, the plaintiff did not present the cheque for payment until 4th May, 1970. When ultimately the cheque was sent to his bankers (Indian Bank, Town-hall Road Branch) for collection on 4th May, 1970, the same was dishonoured, and was returned with the endorsement 'Refer to the drawer. '
2. Thereafter the plaintiff sent the suit notice (Exhibit A-5) dated 8th May, 1970 claiming the amount, together with interest. The reply (Exhibit A-6) given by the defendants is couched in dubious language. No doubt, the defendants deny the borrowing, but would say that the purpose for which the cheque had been issued had been suppressed by the plaintiff. They did not, however, disclose the so called purpose for which the cheque was issued by them. They would further maintain that due to some misunderstanding the notice was sent by the plaintiff and they reseived their right to file a 'detailed statement', disclosing all the particulars in respect of all the transactions they had with the plaintiff and also the purpose of which the cheque was issued. At the end, however, they would conclude by saying that they were making arrangements to settle the plaintiff's account. As the reply did not apparently satisfy the plaintiff, he instituted the present suit for the recovery of a sum of Rs. 58,025 with subsequent interest on the principal amount and the costs of the action.
3. Defendants 1 to 3 in their common written statement denied the suit claim and denied that the bearer cheque was given by them in consideration of the borrowing of cash made on 26th February, 1970. They would attribute motive to the plaintiff in the matter of the presentation of the cheque and the resultant endorsement obtained by him from his bankers, and would categorically allege that the plaintiff cheated them, on account of some ill-feeling and misunderstanding. According to them, the plaintiff was not possessed of sufficient funds on 26th February, 1970 to lend the sum of Rs. 55,000 on that day. They would refer to the other suit filed by the plaintiff's wife, which is the subject-matter of Appeal No. 533 of 1971, which in turn arises from the judgment and decree in O.S. No. 299 of 1970 on the file of the same Court and would say that it was in connection with their dealings with the plaintiff's wife that they gave the bearer cheque. They would incidentally state that the claim of the plaintiff's wife in O.S. No. 299 of 1970 is also to some extent false, and that the present suit has been filed only to harass the defendants and to support the claim of the plaintiff's wife. They have invented in their written statement a defence which was not disclosed in their earlier reply notice, but which they would whisper in a telegram given (Exhibit B-7) at or about the time when the suit was about to be filed, and would reiterate it in their written statement. According to the defendants, in February, 1970 the plaintiff was in need of money for the marriage of his daughter, that he demanded repayment of the moneys due by the defendants to his wife, that though they had liquid cash with them, they could not accommodate the plaintiff and that it was at the suggestion of the plaintiff that they issued the cheque for Rs. 55,000, so that he would discount the same with third parties, realise whatever amount he could and give credit for the same towards the debt due by the defendants to the plaintiff's wife. These were the circumstances, according to the defendants, which led to the drawing of the bearer cheque and therefore they would urge that no consideration passed under the cheque and that the suit based on such a negotiable instrument was not sustainable.
4. In the reply statement filed by the plaintiff, he reiterated that the cheque Exhibit A-1 was supported by consideration and that the dealings which the defendants had with the plaintiff's wife were totally independent and distinct from the suit cheque on which the present action was based. The plaintiff further denied every one of the allegations made by the defendants in their written statement.
The following issues were framed in that action by the trial Court.
1. Whether the cheque for Rs. 55,000 on 26th February, 1970 and the discount letter were given by the defendants to the plaintiff for the reasons stated in the written statement?
2. To what relief, if any, is the plaintiff entitled?
5. The learned Subordinate Judge, after hearing the parties, and particularly basing his inference on conjecture, was of the view that the cheque of Rs 55,000 was not supported by consideration and that therefore no action could be laid on it. While dealing with it, the learned Subordinate Judge admitted that the onus of proof lay heavily on the defendants under the provisions of the Negotiable Instruments Act to dislodge the presumption which would usually arise on a negotiable instrument which ex facie did not suffer from any material defect, which ought to be taken judicial notice of. He would also find that the defendants had similar dealings with the plaintiff on prior occasions, but he would not countenance the plaintiff's theory that the suit cheque was one which was also given by the defendants in the usual course of such discounting transactions. According to the learned Judge, the onus was on the plaintiff to establish that he had sufficient funds on that day to lend the money, and, in order to fortify his finding that the plaintiff was not possessed of such funds, the learned Subordinate Judge inspects the account books produced by the plaintiff, Exhibit A-16, et seq and found that there was a shortage of Rs. 934.45 on the date of the alleged borrowing and that this circumstances by itself was sufficient to come to the conclusion that the plaintiff did not have the entirety of the sum of Rs. 55,000 on the date of Exhibit A-1. Incidentally it became necessary for him to examine the accounts produced by the defendants so as to find out whether the burden which lay heavily on them had been discharged, to avoid the suit claim. On more than one occasion in the course of his judgment the learned Subordinate Judge found that the account books produced by the defendants (set out in paragraph 24 of his judgment) were defective and contained many serious defects. It is unnecessary for us to repeat the opinion expressed by the learned Subordinate Judge about the accounts produced by the defendants and the inherent defects which were prima facie demonstrated therein. But, for reasons not very clearly given, he would say that, though there were defects, and serious defects, in the account books, they did not necessarily show that, the entire accounts should be disbelieved. He therefore accepted the contention of the defendants that, in the absence of any entry regarding the borrowing of the sum of Rs. 55,000 on or about the date when Exhibit A-1 was issued the conclusion, according to the learned Subordinate Judge, was irresistible that the suit claim was false. He therefore dismissed the suit. Hence the appeal (Appeal No. 260 of 1971).
6. In- the other suit (O. S. No. 299 of 19(sic)0 the pleadings are simple and the defence also is equally simple. The suit was laid by the plaintiff's wife for the recovery of a sum of Rs. 1,20,000 representing the principal on a promissory note dated 18th August, 1968 (Exhibit A-4) together with interest thereon, which amounted to Rs. 32,600. The total claim was far the recovery of Rs. 1,52,600 prior to the institution of the suit, the plaintiff's wife gave a counsel's notice (Exhibit A-7) which was also duly replied by the defendant's counsel, under Exhibit A-8. In the reply notice the defendants admitted the execution of the promissory note, but would add, without any particulars, and without any explanation thereto, that, 'it is not correct to say that the interest has been paid up to 16th September, 1968'. After referring to the various prior transactions had by them with the plaintiff, they would say that they were making arrangements to pay the entire amount within three months from the date of the reply notice. As we said, the defendants did not set out in the reply notice any payment or plead partial discharge of the amount payable on the suit promissory note. Whilst this was the position in their written statement, they would plead partial discharge. They would refer to a payment of a sum of Rs. 29,690 said to have been paid by them from 21st August, 1958 till 15th March, 1970 (bath days inclusive) as per the statement of accounts produced by them along with their written statement. Here again, the manner in which the amounts were paid or the persons through whom the amounts were seat are not set out. either in the body of the written statement or in the accounts produced by them. They would baldly claim credit for a sum of Rs, 29,690 paid by them towards the principal and interest and prayed that the necessary decree might be passed with proportionate costs.
7. We have already referred to the fact that the learned Subordinate Judge tried both the suits together and rendered a common judgment. He framed the following issues on the pleadings as above:
1. Whether the suit promissory note dated 18th August, 1968 is in renewal of the prior promissory notes?
2. Whether the interest has been paid only up to 18th September, 1968;
3. Whether the payment of Rs. 29,690 on various occasions pleaded by the defendants is true?
4. What is the amount due to the plaintiff?
5. To what relief, if any, is the plaintiff entitled?
The learned Subordinate Judge found that the suit promissory note was executed by the defendants and that it was supported by consideration. He accepted the story developed by the defendants in the witness box through their witnesses that the sum of Rs. 29,690 had to be given credit for to the defendants by the plaintiff. Here against he not only relied upon the testimony of the witnesses examined on the side of the defendants but also once again placed reliance upon the accounts which were characterised by him as containing defects, and serious defects, and decreed the suit claim less Rs. 29,690 with proportionate costs on concessional scale. It is as against this, Appeal No. 533 of 1971 has been tiled.
8. We shall first take up the account boobs produced by the respective parties so that it would not be necessary for us to refer to them once again in the course of our judgment. The defendants have produced their accounts. Exhibits P-63 to B-98 are entire in their ledger filed by the defendants. The learned Subordinate Judge himself admits that a perusal of the entries in Exhibit B-63 along with those in Exhibit B-84 clearly showed that not only was the ink different, but also was the handwriting different. He was not prepared to accept the theory of the defendants spoken to in the witness box by D.W.3 that they had been written by one and the same person. He would also condemn D.W. 1, who was anxious to support the defendants and was prepared to swear that it was the same persons who wrote all the entries. On a further examination of all the relevant entries and the pages in the account books the learned Subordinate Judge was constrained to find that certain papers in the ledger were moving up and dawn and Were not closely stitched. He would however, explain it away by saying that, on account of frequent user, the paper might have become loose. It is difficult to believe that the crucial paper alone, which is relevant to the instant case, was moving up and down, whilst the other papers were intact, in the account book. There is therefore something very strange about this paper. We have already referred to the fact that this was written by some one and not by Sundararajulu Naidu as claimed by D.W. 1 and supported by D.W. 3 Against in the so called regularly kept account book, there is no continuity in the membering of pages. Pages 610 to 631 have been corrected to 510 to 531. Thereafter from pages 532 to 541 the figure '5' has been written in pencil at the top of the figure '6'. This curious account book is explained a way by the defendants by the gullible explanation that there was defect in the numbering of the pages of the original ledger itself. This apart, the learned Subordinate Judge himself discovered a serious defect, in that the entries in Exhibits B-63 and B-75 appeared to be in different handwritings, and that the entries subsequent thereto were written by the same person, but his manner of writing the word (sic) was different. A stale explanation was given by the defendants which went home to the learned Subordinate Judge, But .We agree with him that this is one of the many serious defects Which he discovered, but which of tolerated and ultimately excused.
9. On the other hand, the account books produced by the plaintiffs have no such defects. But the reason why the learned Subordinate Judge did not place any reliance on the account books of the plaintiff, Exhibit A-16 et seq., was that on totalling up the amount available with the plaintiff on the date when the suit transaction took place their cash fell short of a sum of Rs. 94:3.45. He would not accept the explanation of P.W. 3 that they had to borrow a sum of Rs. 1,000 from a third party to make up this amount which was given in cash to the defendants. We are referring to this aspect at this stage only to reiterate that in our view, the account books of the plaintiff's case that, on the date when the cheque was issued by the defendants, a sum of Rs. 55,000 was lent by the plaintiff to the defendants as evidenced by the entries in the account books.
10. Having thus touched up on the account books of the respective parties, and having found that we are unable to place any reliance upon the accounts produced by the defendants' we shall now consider the various points, that the plaintiff did not have sufficient cash to perform the marriage of his daughter in February, 1970. The defendants themselves had to admit, both in their written statement and when one of them was in the witness box, that the plaintiff was a moneylender and a well-to-do person. The suggestion therefore that the plaintiff had to borrow money for the performance of the marriage of his daughter appears to be rather strange. If this evidence of the defendants is really true, one would expect that the defendants-borrowers should have jumped at it and incorporated it in their reply notice when they gave, through counsel a reply to the notice of demand. But, on the other hand, nothing of the kind happened. The reply notice is camouflaged and deliberately misleading. The defendants as borrowers, and as is usual with borrowers, denied the loan, but reserved their right to file a 'detailed statement' disclosing the particulars in respect of that transaction and also the purpose for which the cheques was issued. What prevented them from stating the purpose for which the cheque was issued, which they later thought of in the telegram (Exhibit B-7) and in their written statement, is not at all clear. They would refer to some misunderstandings between themselves and the plaintiff. Probably this was the reason why they were not prepared to say anything at that time, but reserved their right to develop their defence according to circumstances and their convenience. We are unable to follow the unequivocal statement made in Exhibit A-6 by the defendants in reply to the plaintiff's notice, when they stated, that they Were making arrangements to settle 'your client's account'. We have already touched upon the defence of the defendants. They would say that the cheque was given in relation to an admitted debt due and owing by them to the plaintiff's wife. Thereby they would make it appear that they had nothing to do with the plaintiff and that there was no account of the plaintiff for being settled. Yet they would say in their reply notice that they were making arrangements to settle the plaintiff's account. If there was no account the question of settling a non-existing account would not arise. This by itself is a positive indication that even at the outset the defendants wanted to wriggle out of the transactions and, if possible, evade payment by raising defences at convenient times as and when occasion arose.
11. One such circumstances which prompts us to bold that the story of the defendants that the plaintiffs wanted to borrow money and requested the defendants for accommodation by giving a bearer cheque to enable him to discount the same, is not true is borne out by the attitude of the defendants themselves in the course of the trial of this litigation. When the plaintiff was in the box, no suggestion was put to him that he had no. funds on that day and . that that was why he had to make a circuitous arrangement for raising finance to perform the marriage of his daughter. Mr. D. Ramaswami Iyengar, learned Counsel for the respondents (defendants) is unable to point out, from the evidence of the plaintiff as P.W. 1, that any such suggestion was put to him when he was in the box. The defendants were therefore not sure of their own stand they were not courageous enough to face the plaintiff and bring home to him the so-called story which they weaved out rather late and which they would not set out in their reply notice.
12. The next question is whether the account books of the defendants, so far as this case is concerned, could be relied upon. The learned Subordinate Judge referred to those accounts and found that there was no entry of receipt of this sum of Rs. 55,000 therein. Having, expressed that view, he went into the other question. Whether the plaintiff had the necessary funds with him on that day, to lend the sum of Rs. 55,000. The defendants and the plaintiff are businessmen and both are shrewd enough, and well acquainted with men and matters. It was impossible for the defendants to have acted in the manner they did. Exhibits A-3 may be referred to in the first instance. There is a categorical admission in this letter that they have received cash less discounting commission of Rs. 421-50. They would also request the plaintiff to present the cheque for payment on 15th March, 1970. One Would expect the defendants to repudiate this letter, when they had the opportunity to do so. In their reply notice, Exhibit A 6 there is no reference to this letter at all, which prima facie is clear and clinching, in that the defendants themselves have acknowledged the receipt of cash of Rs. 55,000 in Exhibit A-3. Persons in the position of the defendants, who are (sic)sinessimen, should have at least stated (sic) reply notice the circumstances under which they wrote Exhibit A-3. Even th(sic) absent. There is no suggestion in that letter that the plaintiff did not have the necessary funds with him to lend.
13. With this background, we shall now look into the accounts of the plaintiff. The day-book produced by the plaintiff did show that he had sufficient funds to lend the sum of Rs. 55,000. No doubt, on a microscopic examination of the credits with the plaintiff, the learned Subordinate Judge was at pains to discover that there was a shortage of Rs. 934-45. Even this was explained by P.W. 3 when he was in the witness box, when he stated that they provided themselves with another sum of Rs. 1,000 from the son-in-law of the plaintiff. There is nothing improbable in this. The entire transaction is a cash transaction. It is not for the borrower to drive into the manner in which the creditor obtained his cash. It is not pretended that this cash was paid only from the funds of the business carried on by the plaintiff. The question is whether the cash of Rs. 55,000 Was paid on that day or not. Fortunately for the plaintiff, the sum total of the cash available with him as per his accounts fell shortly a sum of Rs. 934-45. He tried to bridge the gulf by saying that another sum of Rs. 1,000 was borrowed from his son-in-law, to make up the cash advanced. There is nothing improbable in this, in the light of Exhibit A-3 which is not even attacked by the defendants as a letter which had been extracted or forced out of them by the plaintiff, at any material point of time. We are therefore unable to belive the defendants' case that the plaintiff did not have the requisite cash on 26th February, 1970, for him to lend to them the sum of Rs. 55,000.
14. The defence in the main of the defendants was that it was to raise funds to meet the expenseses of the plaintiff's daughter's marriage that this method was adorned by the plaintiff in co-ordination with the defendants. If this was the real truth, there was nothing to prevent the defendants from setting out such a state of affairs and instructing their counsel to set out the same in their reply notice. According to the plaintiff, when the thavanai period was over the defendants were repeatedly requesting him for time for payment and that it was in consequence of such approaches that the cheque was not presented to his bankers for collection. This is more probable, for, having known that the cheque was to be presented on 15th March, 1970, and having known that the cheque was likely to be presented which would result in prejudice to them, the defendants kept quiet and did not even give a mandate to the plaintiff not to present the cheque for payment and cause inconvenience to them, but on the other hand, they gave a telegram (Exhibit B-7) which ran as follows:
On behalf of the proprietors of Sri Devi Talkies : My clients having dealings in money with you from the time of their father. Yourself collecting excess interest in all transactions. Accounts never settled. But to oblige you my clients executing promissory notes the last of which was for Rs. 1,20,000 in the name Sevuga Achi. The said pro-note not fully supported by consideration. Accounts to be looked into for arriving at the correct amount due. On 26th February, 1970, yourself demanded money for your daughter's marriage. My clients could not accommodate you then. Cheque for rupees 55,000 issued to you on your representation that you would discount: the cheque and realise money for immediate expenses. No borrowing on that date from you. My clients paying you every day rupees 50 to 150 depending on collections from the theatre towards the amount due by them. Daily payments received by your accountant and signed in small note books. My clients mother's deposit with you stand as security for my clients borrowings. My clients ready to settle account. Kindly do not precipitate matters and arrange for settlement. Letter follows.
15. If such detailed information was available to them on the date when the telegram was giver., viz., 2nd July, 1970, what prevented them from subscribing to such a story in Exhibit A-6 dated 27th May, 1970 passes one's comprehension. Having regard to the conduct of the defendants and the manner in which they have led or misled the plaintiff, until he came to Court, we are unable to place any reliance on Exhibit B-7 or on the story later weaved out by the defendants in their written statement that the cheque was not supported by consideration, and that it was given by them in the circumstances set out by them in the telegram and reiterated by them in their written statement.
16. We are unable to subscribe to the reasoning of the learned Subordinate Judge that the defendants have discharged their onus, that the plaintiff has failed to establish that there was a lending on 26th February, 1970 and that the cheque (Exhibit A-1) which was taken in return thereof was supported by consideration.
17. In Chapter XIII of the Negotiable Instruments Act special rules of evidence are laid down in the matter of presumptions which ought to arise on negotiable instruments. Until the contrary is proved, every negotiable instrument which is duly made or deemed to have been made should prima facie be held to be one supported by consideration.
In Narasamma v. Veeraraju : AIR1935Mad769 , Varadachariar J., observed:
Any presumption as to quantum of consideration as distinguished from the mere existence of consideration, has to be drawn, not by virtue of Section 118, Negotiable Instruments Act, or even under Section 114, Evidence Act, but only from the recitals if any, that the instrument may contain As to such recitals, it has long been established that being prima facie evidence against the parties to the instrument, they may operate to shift on to the party pleading the contrary, the burden of rebutting the inference raised by their. But the weight due to recitals may vary according to circumstances, and, in particular circumstances, the burden of rebutting them may become very light, especially when the Court is not satisfied that the transaction was honest and bona fide.
18. Even the Supreme Court in its later decisions has reiterated the same principle and observed that the presumption under Section 118 of the Negotiable Instruments Act shifts the burden of proof in the second sense, that is, the burden of establishing a case shifts to the defendant, that the defendant may adduce direct evidence to prove that the promissory note was not supported by consideration and that, if he adduced acceptable evidence, the burden again shifts to the plaintiff, and so on. It is therefore clear that the burden is ambulatory: at one time it is on the plaintiff, and according to the proof and circumstances, it shifts on to the shoulders of the defendant. But in the instant case we have referred to Exhibits A-1 and A-3 as also the subsequent conduct of the defendants till they sent the telegram, Exhibit B-7; the entire course of conduct of the defendants and the recitals in the documents do not give us the impression that the suit transaction was not honest and bona fide. On the other hand, the defence of the defendants does not appear to be so, and, in fact, it was developed from time to time. Again the plaintiff having proved the negotiable instrument and the defendants having admitted the execution thereof, the burden shifted on to the defendants to prove that the cheque (Exhibit A-1) was not supported by consideration. This they could establish only by acceptable evidence, which could also be circumstantial. But we are at a less to find any such acceptable material or circumstantial evidence in this case let in by or available to the defendants, so as again to shift the burden on to the plaintiff for him to prove that there was consideration for the suit cheque. Having regard to the fact that the defendants were shifting their attitude from time to time when they ought to have protested, they did not, and at the material point of time when they should have fully spoken, they kept delightfully silent, we are of the view that the suit claim is true and that the learned Subordinate Judge was not right in having dismissed the suit of the plaintiff.
19. We shall now deal with Appeal No. 533 of 1971. As we said the only plea of the defendants in the course of the trial, though not at a stage when they could have set it out either in their reply notice or in their written statement, was that they had paid a sum of Rs. 29,690 which could be compartmentlised thus: a sum of Rs. 22,615 said to have_ been paid by the defendants, but without vouchers, for which they rely upon the self-serving entries in their accounts, a sum of Rs. 4,325 vouched by P.W. 3 and one Shanmugam Pillai who has not been examined, and as evidenced by Exhibits B-23 to B-56; a sum of Rs. 2,350 as per entry made by Shanmugam Pillai, who has not been examined , and said to be contained in Exhibit B-57, a pocket notebook kept by Shanmugam Pillai; a cheque for Rs. 500 said to be given to P.W. 2 as seen from Exhibit B-99 who cashed it and gave it to the plaintiff. We shall now consider the first alleged payment of Rs. 22,615. While on this, it is necessary for us to remind ourselves about the manner in which the defendants maintained their accounts. We have already expressed our considered view that the accounts are not reliable and dependable. Apart from this, a borrower who claims that he has paid a sum of Rs. 22,615 to his lender, should not be content with merely depending upon the entries made in his (borrower's) account, without the same being contemporaneously vouched for or evidenced by any voucher given by the lender or some one on his behalf. Not only for the reason that we have grave doubts and suspicion about the account books produced by the defendants, but also on the well-known principle that a borrower cannot rely on his own self-serving entries in his accounts for the purpose of furthering his cause, we are unable to place any reliance upon the story of the defendants that a sum of Rs. 22,615 was paid to the plaintiff as pleaded by them.
20. Next, a sum of Rs. 4,225 is said to have been paid through P.W. 3 and one Shanmugam Pillai under Exhibits B-23 to B-56. We have seen the vouchers. Here again there is something very curious about them. On the back of each of the vouchers we find a revenue stamp affixed and duly crossed, and the contents in front of the vouchers arc so meagre. This is invariably the case with each of the vouchers. This is pressed into service as a payment said to have been made by the defendants on account of the plaintiff, through P.W. 3. Fortunately for the plaintiff and unfortunately for the defendants, P.W. 3 who went into the box would swear that these transactions had nothing to do with the suit promissory note and that, if he had received any payment from the defendants, it was in his own individual capacity and did not have any impact upon the suit transaction. We believe P.W. 3 and disbelieve the defendants. One part of the above sum of Rs. 4,225 is said to have been paid through Shanmugam Pillai. Even so a sum of Rs. 2,350 is said to have been paid to the plaintiff as seen from Exhibit B-57. It is not claimed that Shanmugam Pillai was not available for examination. As to why he has been kept out of the box, there is no explanation. In the light of such disclosed facts and circumstances, and in the halo of suspicion created by the defendants' conduct and their manner and method of proof we are unable to accept the uncorroborated testimony of the defendants' witnesses that a part of Rs. 4,225 and a sum of Rs 2,350, as evidenced by Exhibit B-57 (pocket notebook said to have been kept by Shanmugam Pillai) were paid in discharge of the. suit debt.
21. As regards the last item of discharge, viz., a payment of Rs. 550, the defendants rely upon Exhibit B-99 which is a cash cheque drawn by the defendants, and signed by one of the partners at the back of the cheque and said to have been cashed by S. Palaniappan. Palaniappan was an ex-employee of the plaintiff and in order to set at nought the cloud over this particular transaction, the plaintiff examined Palaniappan as P.W. 2. He would swear that he no doubt cashed the cheque given by the defendants but it was not intended that he should pay the said. amount of Rs. 500 to the plaintiff and that after encashment of the cheque he paid back the amount of Rs. 500 to the defendants themselves. There is no reason why we should not believe this natural version given by P.W. 2.
22. We have already referred to Exhibits A-7 and A-8. which are the suit notice and the reply. In the reply, Exhibit A-8, the defendants say that it is not correct to say that interest has been paid up to 16th September, 1968. In their written statement they would say that towards the promissory note debt they had paid Rs. 29,690 between 21st August, 1968 and 15th March, 1970. Exhibit A-8 is dated 16th May, 1969. If, according to the defendants, they knew that they had paid considerable sums of money to the plaintiff between August, 1968 and March, 1970, when Exhibit A-8 and was issued in May, 1969, nothing prevented them from stating how they had paid the amounts and through whom. There is no whisper about it or about the persons through whom such amounts or parts of such amounts were sent. In particular, there is no reference, in the reply notice or in the written statement to the names of P.W. 3 Shanmugam Pillai or P.W. 2. The plea of discharge set up by the defendants is absolutely untrue, and it is surprising that the learned Subordinate Judge should have placed reliance upon such unreliable evidence adduced by the defendants before him for accepting the plea of discharge. We are therefore unable to believe, on the materials noticed by us, that the story that the defendants paid a sum of Rs. 29,690 to the plaintiff in the manner stated by them can ever be true. The plaintiff is therefore entitled to a total decree.
23. In the result both the appeals are allowed with costs.