SA.No.150/2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 01.03.2022
CORAM:
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
SA.No.150/2022 & CMP.No.3009/2022
[Physical Hearing]
R.Ashokkumar .. Appellant /
1st Defendant
Vs.
M.Baskaran .. Respondent /
Plaintiff
Prayer:- Second Appeal preferred under 100 of CPC to set aside the
judgment and decree passed in AS.No.22/2017 by the learned Additional
District and Sessions Judge, [Fast Track Court], Arani, on 18.02.2019
confirming the judgment and decree passed in OS.No.145/2010 by the
learned Subordinate Judge, Cheyyar on 06.08.2013.
For Appellants : M.S.Sridevi
https://www.mhc.tn.gov.in/judis 1
SA.No.150/2022
JUDGMENT
(1) As against the concurrent judgments and decrees of the Court below, the unsuccessful 1st defendant in the suit in OS.No.145/2010 on the file of the Sub Court, Cheyyar, is the appellant in this Second Appeal.
(2) The respondent herein as plaintiff, filed the suit in OS.No.145/2010 for recovery of a sum of Rs.3,08,000/- along with interest @ 18% per annum for the sum of Rs.2 lakhs.
(3) The case of the plaintiff/1st respondent herein is that the appellant/1st defendant borrowed a sum of Rs.2 lakhs on 15.09.2006 from the plaintiff by executing a Pronote and agreed to pay interest @ 18%. Stating that the 1st defendant did not pay the money nor responded to the notice sent by the plaintiff, the suit came to be filed.
(4) The appellant filed a written statement denying the execution of Pronote on 15.09.2006 by him in favour of the plaintiff. It is further alleged in the written statement that no amount was paid as alleged in the Pronote dated 15.09.2006. The 1st defendant also https://www.mhc.tn.gov.in/judis 2 SA.No.150/2022 contended that there was no necessity for the defendant to borrow any amount from the plaintiff. After denying the execution and receipt of money under the suit Pronote, it appears that the 1st defendant gave a different version in the course of evidence. He also examine another witness to show that the plaintiff's father had some financial transactions with the 1st defendant and that the suit Pronote was executed as a security for the loan advanced by the plaintiff's father to the 1st defendant.
(5) The Trial Court, after considering the entire evidence and pleadings of the respective parties, found that the suit Pronote was executed by the 1st defendant for consideration. The case of the 1st defendant that he had borrowed some money from plaintiff's father and discharged the entire loan and that the suit Pronote was executed as a security for the loan transaction, the 1 st defendant had with the plaintiff's father was disbelieved by the Trial Court. The 1st defendant admittedly did not produce any documents to show any other financial transaction between the plaintiff's father and the 1st defendant. During the course of cross examination, the 1st https://www.mhc.tn.gov.in/judis 3 SA.No.150/2022 defendant categorically admitted that he executed the suit Pronote. However, relying upon the evidence of the appellant and his brother DW2 before the Courts below it was contended that the plaintiff has not proved the suit transaction. The case of the 1 st defendant during the course of evidence and argument was properly considered by the Trial Court and ultimately decreed the suit after rendering the finding that the case of the 1st defendant in the course of the evidence that the suit Pronote was executed as a security for some other financial transaction is not proved by the 1st defendant. Aggrieved by the judgment and decree of the Trial Court decreeing the suit, the 1st defendant preferred an Appeal in AS.No.22/2017 before the learned Additional District and Sessions Judge [FTC], Arani.
(6) The Lower Appellate Court also was unable to agree with the case of the appellant/1st defendant and held that the suit Pronote was executed by the appellant/1st defendant for consideration and that the appellant / 1st defendant is liable to repay the amount as agreed by him under the suit Pronote. The collateral transactions pleaded https://www.mhc.tn.gov.in/judis 4 SA.No.150/2022 by the appellant/1st defendant was also held not proved by the Lower Appellate Court. As against the concurrent judgments of the Courts below, the present Second Appeal is preferred by the 1st defendant.
(7) The appellant/1st defendant has raised the following substantial question of law in the Memorandum of Grounds of Appeal:-
''Whether the Courts below followed the provisions of the Evidence Act in evaluating the documents relied on by the plaintiff in establishing this case?'' (8) The learned counsel for the appellant submitted that the Courts below have not gone into the validity of the documents filed by the appellant. The learned counsel then submitted that the evidence of defendants 1 and 2 was not properly considered. The deposition of defendants 1 and 2 was to the that the 1st defendant had not borrowed any money but the suit Pronote was executed in connection with different transaction. There is no specific pleading in the written statement. It is well settled that no amount of evidence is admissible without pleading. In the written statement, https://www.mhc.tn.gov.in/judis 5 SA.No.150/2022 the appellant has pleaded that there was no necessity to borrow any loan from the plaintiff.
(9) The 1st defendant along with his brother and father, was running a jewelry shop under the name and style of ''S.M.Jewelery''. In evidence, it is the case of the appellant/1st defendant that the 1st defendant borrowed money from the plaintiff/respondent and his father on several occasions. Though the appellant/1 st defendant specifically deposed that the suit Pronote was executed as a security for some other transaction, the appellant/1st defendant has not given any details about the other transactions between the plaintiff and the 1st defendant or between plaintiff's father and 1st defendant. When it is contended that the suit Pronote was executed as a blank Pronote, the burden lies on the 1st defendant to prove that there was no consideration for the suit Pronote. Though the presumption under Section 118 of the Negotiable Instruments Act is rebuttable, the appellant in this case has not let in any evidence to prove the details of any other transaction. Though it is contended that the appellant/1st defendant has discharged all the https://www.mhc.tn.gov.in/judis 6 SA.No.150/2022 Pronote loans, the appellant/1st defendant has not given any details nor produced any evidence. First of all, there is no pleading in the written statement.
(10) The burden lies on the appellant to prove discharge. However, there is no evidence to prove such claim. Both the Courts below have concurrently held that the plaintiff is entitled to recover money from the appellant/1st defendant which is due on the Pronote executed by the appellant/1st defendant for consideration. (11) This Court is unable to find any error or irregularity in the appreciation of evidence. No perversity is pleaded or brought to the notice of this Court by referring to any document or evidence. In such circumstances, this Court is not inclined to interfere with the concurrent findings of the Courts below on facts. This Court finds that the present Second Appeal is devoid of merits. (12) In fine, the Second Appeal is dismissed. Consequently, connected miscellaneous petition is closed.
01.03.2022 AP Internet : Yes https://www.mhc.tn.gov.in/judis 7 SA.No.150/2022 To
1.Additional District and Sessions Judge, [Fast Track Court], Arani.
2.The Subordinate Judge Cheyyar.
3.The Section Officer VR Section, High Court Chennai.
https://www.mhc.tn.gov.in/judis 8 SA.No.150/2022 S.S.SUNDAR, J., AP SA.No.150/2022 01.03.2022 https://www.mhc.tn.gov.in/judis 9