A.S.No.513 of 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 14.09.2022
CORAM :
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
A.S.No.513 of 2011
1. M.Sethupathy
2. P.Mylsamy Gounder ... Appellants
Versus
R.Velusamy ... Respondent
Prayer: Appeal Suit filed under order 41 R 1 r/w Section 96 of the Code of
Civil Procedure to set aside the judgment and decree, dated 18.11.2009 made in
O.S.No.766 of 2004 on the file of the learned Additional District Judge (Fast
Track Court No.1) at Coimbatore.
For Appellants : Mr.S.Mukund
for M/S.Sarvabhauman Associates
For Respondent : Mr.K.Krishnan
https://www.mhc.tn.gov.in/judis
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A.S.No.513 of 2011
JUDGMENT
This Appeal Suit arises out of the judgment and decree, dated 18.11.2009 in O.S.No.766 of 2004 passed by the learned Additional District Judge (Fast Track Court No.1) at Coimbatore, in and by which, the suit filed by the respondent/plaintiff for recovery of money based on the suit pronote, Ex.A-1, was decreed in part that is to say, while allowing the principle amount, the interest was allowed to the tune of 12% per annum. Aggrieved by the same, the appellants/defendants have filed the present Appeal Suit.
2. The case of the respondent/plaintiff is that the appellants/defendants are the relatives of the respondent/plaintiff. They used to periodically borrow the amounts from the respondent/plaintiff and repay the same in respect of their financial businesses. Therefore, on 11.11.1999, the appellants/defendants borrowed a sum of Rs.4,00,000/- and in consideration thereof, executed a pronote promising to repay the same with interest at the rate of 30% per annum and thereafter failed and neglected to repay the same. The respondent/plaintiff issued a pre-suit notice in Ex.A-2 and even though the second appellant/second defendant received the same, no reply or positive response was made on behalf of the appellants/defendants and hence the suit.
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3. The appellants/defendants resisted the suit by contesting that it is false to state that they borrowed a sum of Rs.4,00,000/- as on 11.11.1999 and executed the suit pronote. But, however, during the earlier transactions, some of the unfilled pronotes were left with the respondent/plaintiff which have been now misused and the present suit is filed. It is also the contention of the appellants/defendants that the respondent/plaintiff has suppressed about the earlier transactions and suit being filed and therefore, those transactions being material in nature, the suit has to be dismissed. It is the further case of the appellants/defendants that if the entire case is taken into consideration, the appellants/defendants were neither present in Coimbatore nor executed the suit pronote at Coimbatore and therefore, the jurisdiction is also not there in the Trial Court to entertain. The respondent/plaintiff filed a reply, wherein, the details of the earlier borrowing transactions were pleaded in detail and an additional written statement was also filed by the appellants/defendants in respect of those earlier transactions in detail and it is the case of the appellants/defendants that the respondent/plaintiff have concocted those documents and promissory notes, taking advantage of the possession, in which, the unfilled promissory notes were in the hands of the respondent/plaintiff. A reply statement was also filed to additional written statement by the respondent/plaintiff.
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4. On such pleadings, the Trial Court framed the following issues and additional issue:-
(i) Whether the defendants executed the suit pronote or not?
(ii) Whether the suit pronote was given as security and not for consideration?
(iii) Whether the plaintiff is entitled of the suit amount with interest at the rate of 30%?
(iv) What relief, if any, the plaintiff is entitled to?
Additional issue:-
(i) Whether the suit pronote is true, valid, enforceable by law?
5. On the said issues, the parties let in evidence. On the side of the respondent/plaintiff, the respondent/plaintiff examined himself as P.W.1 and his brother Ramasamy Gounder was examined as P.W.2. On behalf of the respondent/plaintiff, Exs.A-1 to A-14 were marked. Thereafter, on behalf of the appellants/defendants, the first appellant/defendant examined himself as https://www.mhc.tn.gov.in/judis 4/11 A.S.No.513 of 2011 D.W.1. No documents were marked on the side of the appellants/defendants. The Trial Court proceeded to hear the learned Counsel on either side and after appraising the evidence on record in detail, answered the issues in favour of the respondent/plaintiff and against the appellants/defendants by holding that the appellants/defendants have borrowed the amount and have executed the promissory note and that the respondent/plaintiff is entitled to recovery of the amount. However, in respect of the interest alone, restricted it to 12% per annum both from the date of pronote and also post decree. Aggrieved by the same, the present Appeal Suit is filed by the appellants/defendants herein.
6. Heard Mr.S.Mukund, learned Counsel appearing on behalf of the appellants/defendants and Mr.K.Krishnan, learned Counsel appearing on behalf of the respondent/plaintiff.
7. The learned Counsel for the appellants/defendants would submit that the signature of the appellants/defendants in the vakalath as well as the pronote differs even to the naked eye and especially when the appellants/defendants have pleaded that the respondent/plaintiff never borrowed the amount and executed the pronote, the burden is on the respondent/plaintiff to have the signatures verified by appropriate expert. In the absence of proof of execution https://www.mhc.tn.gov.in/judis 5/11 A.S.No.513 of 2011 of the promissory notice, the Trial Court ought not to have relied upon the presumption under Section 118 of the Negotiable Instruments Act, 1881 and therefore, the judgment and the decree of the Trial Court is erroneous. This apart, even from the reply notice filed and the letters in Exs.A-7 and A-8, which were marked before the Trial Court, it is clear that the pleadings of the respondent/plaintiff as if they borrowed the amount at Coimbatore and executed the pronote on 11.11.1999 has been falsified and therefore, the Trial Court ought to have rejected the entire case as it suffers from suppressio veri and suggestio falsi. Therefore, the learned Counsel would submit that in this case, since there is no other evidence for parting with the money, the Trial Court erred in decreeing the suit.
8. Per contra, Mr.K.Krishnan, the learned Counsel appearing on behalf of the respondent/plaintiff would submit that in this case, even as per paragraph No.3 of the written statement, the appellants/defendants have admitted their signatures and it is their specific case that the suit promissory note is fabricated by the respondent/plaintiff misusing the signature in the blank promissory notes handed over during the previous transactions. Therefore, effectively, the appellants/defendants are admitting their signatures in the promissory note. Once the signatures in the promissory note are admitted, then the presumption https://www.mhc.tn.gov.in/judis 6/11 A.S.No.513 of 2011 under Section 118 of the Negotiable Instruments Act, 1881 comes into force and it is for the appellants/defendants to establish that they had actually not received the consideration as contained in the promissory note. He would point out that except for the ipse dixit of the appellants/defendants as contained in the written statement, the appellants/defendants have not let in any other evidence in support of their claim nor from the cross-examination of the respondent/plaintiff, they were able to elicit anything. He would submit that not specifically mentioning of the earlier transactions between the respondent/plaintiff and the appellants/defendants were not material in nature and in any event, they were duly brought on record by way of reply statement, to which, the appellants/defendants were also permitted to file an additional written statement. As a matter of fact, Exs.A-7 and A-8 would actually lend credence to the transactions and therefore, he would submit that the Trial Court has rightly decreed the suit and prayed for dismissal of the appeal.
9. I have considered the rival submissions made on behalf of either side and perused the material records of this case. Admittedly, the suit is based on a pronote. The suit promissory note is marked as Ex.A-1 by the respondent/plaintiff. According to the respondent/plaintiff, the appellants/defendants borrowed a sum of Rs.4,00,000/- and failed to repay https://www.mhc.tn.gov.in/judis 7/11 A.S.No.513 of 2011 either the principal or the interest. As rightly contended by the learned Counsel for the respondent/plaintiff, it is seen from the very written statement itself that the appellants/defendants have admitted their signatures in the promissory note. Therefore, once the signatures are admitted, I am afraid that I can accept the contention of the learned Counsel for the appellants/defendants that the respondent/plaintiff should have compared the signatures by appropriate hand writing/forensic expert and should have proved the same. The said contingency will arise if only the appellants/defendants have denied the signatures in the promissory note. Once the execution is admitted, the respondent/plaintiff's case is clothed with the presumption under Section 118 of the Negotiable Instruments Act, 1881. Therefore, it is for the appellants/defendants to rebut the said presumption to the level of preponderance of probability. In this case, the respondent/plaintiff, apart from the promissory note, had also marked Ex.A-2, pre-suit notice, for which also, there is no reply. Similarly, the letter written by the first appellant/defendant in Exs.A-7 and A-8 also further lends credence and corroborates the loan being disbursed by the suit promissory note. In that view of the matter and considering the findings of the Trial Court that the appellants/defendants have done nothing to rebut the presumption, I am of the view that no exception whatsoever can be taken to the findings of the Trial Court. In view of the https://www.mhc.tn.gov.in/judis 8/11 A.S.No.513 of 2011 above, I answered the issue No.1 that the appellants/defendants executed the suit promissory note. The issue No.2 is also answered by holding that the promissory note was not given as security, but, for the consideration of borrowal of a sum of Rs.4,00,000/-. The additional issue No.1 i.e., Whether the suit pronote is true, valid, enforceable by law, is also answered in favour of the respondent/plaintiff and against the appellants/defendants. As far as the issue No.3 is concerned, the Trial Court has ordered the interest at the rate of 12% per annum as against the claim rate of 30% per annum. It is the case of the respondent/plaintiff that the borrowings were for the business of the appellants/defendants that they were involved in finance and other businesses. Considering that the borrowing is for the commercial purpose, I hold that the award of interest at the rate of 12% per annum by the Trial Court does not require any interference and the said issue is also answered accordingly.
10. In view thereof, I hold that the Appeal Suit is without any merits and as such, the same is dismissed. The costs, as far as the Appeal Suit is concerned, is made easy, while the costs ordered in respect of the suit in favour of the respondent/plaintiff will remain. Consequently, M.P.No.1 of 2011 is closed.
https://www.mhc.tn.gov.in/judis 9/11 A.S.No.513 of 2011 14.09.2022 Index : yes/no Speaking order/Non-speaking order grs To The Additional District Judge (Fast Track Court No.1), Coimbatore.
https://www.mhc.tn.gov.in/judis 10/11 A.S.No.513 of 2011 D.BHARATHA CHAKRAVARTHY. J., grs A.S.No.513 of 2011 14.09.2022 https://www.mhc.tn.gov.in/judis 11/11