Madras High Court
M.Ramasamy vs S.Arunachalam on 26 April, 2021
S.A.(MD)No.593 of 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 26.04.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.593 of 2014
and
M.P.(MD)No.2 of 2014
M.Ramasamy ... Appellant
-Vs-
S.Arunachalam ...Respondent
PRAYER: Second Appeal is filed under Section 100 of the Civil Procedure
Code, against the Judgment and Decree passed in A.S.No.45 of 2010, dated
23.02.2011 on the file of the Principal Sub Court, Tenkasi, reversing the
Judgment and decree passed in O.S.No.276/2007, dated 25.06.2010 on the
file of the Principal District Munsif Court, Tenkasi.
For Appellant : Mr.S.Chellapandian
For Respondent : Mr.T.R.Jeyapalan
JUDGMENT
The defendant in O.S.No.276 of 2007 on the file of the Principal
District Munsif Court, Tenkasi is the appellant in this second appeal. The
respondent herein namely S.Arunachalam filed the said suit on the strength
of Ex.A1 pro-note dated 15.06.2004. The case of the plaintiff is that the
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S.A.(MD)No.593 of 2014
defendant Ramasamy borrowed a sum of Rs. 60,000/- from him on
15.06.2004 undertaking to repay the same with interest at the rate of 12%
per annum on demand. The case of the plaintiff is that even though several
demands were made, the defendant did not come forward to repay the loan.
Hence, the suit was instituted. The defendant took the stand that the
plaintiff was running an unauthorized chit business at Alangulam. His
brother Subbaiah was one of its members. The plaintiff used to obtain
signatures from the members in blank pro-notes. The defendant's brother
had bid for the chit prize money of Rs.1,00,000/-. But the plaintiff did not
pay the same. In this regard, dispute arose between the defendant's brother
Subbaiah and defendant's wife Tamilarasi on the one hand and the plaintiff
on the other. The defendant's wife Tamilarasi lodged a complaint before the
Alangulam Police Station on 08.01.2007. The dispute was settled in the
course of enquiry and the complaint was closed. Angered by the same and
to wreck vengeance, the suit in question had been instituted. Based on the
rival pleadings, the issues were framed. The plaintiff examined himself as
P.W.1 and the attesting witness as P.W.2 and scribe as P.W.3. The defendant
examined himself as D.W.1. Ex.A1 to Ex.A3 were marked. After
consideration of the evidence on record, the trial Court dismissed the suit
by Judgment and Decree dated 25.06.2010. Aggrieved by the same, the
plaintiff filed A.S.No.45 of 2010 before the Principal Sub Court, Tenkasi.
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S.A.(MD)No.593 of 2014
By Judgment and Decree dated 23.02.2011, the first Appellate Court
reversed the decision of the trial Court and allowed the appeal. Challenging
the same, this second appeal came to be filed by the defendant. The second
appeal was admitted on the following substantial questions of law.
“(I) Whether the first appellate Court is correct in decreeing the
suit on the basis of the evidence of P.W.3 after holding that there was a
contradiction between the evidence of P.W.1 and P.W.3?
(ii) whether the first appellate Court is correct in rejecting the
Exs.B1 to B3 adduced on the side of the defendant as inadmissible
without properly construing Sections 13 and 65 of the Evidence Act?”
2.Heard the learned counsel on either side.
3.The learned counsel for the appellant reiterated all the contentions
set out in the memorandum of grounds and took me through the evidence
and submitted that the substantial questions of law framed in this appeal
deserve to be answered in favour of the appellant. He submitted that the
suit was laid on the strength of pro-note. The defendant had denied the very
execution of the pro-note. Therefore, the burden of proof lay entirely on the
plaintiff. The plaintiff had examined not only himself but also the attesting
witness. However, the attesting witness turned hostile. Ex.A1 was
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S.A.(MD)No.593 of 2014
attested by one other person by name Meenatchisundaram. Effective steps
were not taken by the plaintiff to have the said Meenatchisundaram also
examined as witness. Of-course, the scribe was examined as P.W.3. There
are contradictions between the testimony of the plaintiff and the scribe.
Therefore, the Appellate Court erred in decreeing the suit on the basis of
evidence of P.W.3. He also would state that the Court below erred in
rejecting Ex.B1 to Ex.B3 as inadmissible. His contention is that the suit in
question has been instituted as a counter blast to the police complaint given
by one of the defendant. He pressed for setting aside the Judgment of the
Appellate Court and restoring the Judgment of the trial Court.
4.Per contra, the learned counsel appearing for the respondent
submitted that the Appellate Court had correctly appreciated the evidence
on record and decreed the suit and no interference is called for. He pressed
for dismissal of the second appeal.
5.I carefully considered the rival contentions and went through the
evidence on record. The first contention is that the institution of the suit is
a counter blast to the police complaint given by Tamailarasi wife of the
appellant. This contention is obviously incorrect because the police
complaint was given only on 08.01.2007. The suit in question was
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S.A.(MD)No.593 of 2014
instituted on 28.12.2006 as is evident not only by the Court seal but also the
signature of the trial munsif. It is obvious that when the institution of the
suit is prior in point of time, there cannot be any basis for contending that
the filing of suit is a counter blast. Of-course, the suit appears to have been
numbered later and the defendant did not have prior notice of the institution
of the suit. Be that as it may, when the record speaks for itself, I have to
necessarily reject the aforesaid contention that filing of the suit was a
counter blast to the police complaint.
6.Ex.B1 to Ex.B3 were marked only through the defendant. The
grievance of the defendant is that the said evidence was erroneously
rejected as inadmissible. I accept the contentions of the counsel for the
appellant and I answer the second substantial question of law in favour of
the appellant. But then, the final result goes against the appellant. This is
because, even according to Ex.B1, the appellant had signed in the suit pro-
note and handed over the same to the plaintiff. From a reading of Ex.B1-
complaint and the testimony of P.W.1, I have no difficulty in coming to the
conclusion that execution of the suit pro-note has been established. Once
the execution of the pro-note is established, the presumption under Section
118 of the Negotiable Instrument Act will come into play.
7.The defendant had examined only himself as D.W.1. He had not
otherwise rebutted the presumption drawn against him. The fact that the
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S.A.(MD)No.593 of 2014
pro-notes were executed and handed over to the plaintiff indicates that there
was passing of consideration. Onus is on the defendant to show that the
amounts were repaid. There is nothing on record to show that the amount
originally borrowed from the plaintiff had been repaid. The appellant had
examined not only himself but also scribe. The appellant had also taken
steps to examine one of the attestors as P.W.2. P.W.2 did not support the
case of the plaintiff. He was declared as hostile and also cross examined.
The plaintiff did take steps to examine the other attesting witness also.
The Appellate Court from a overall consideration of the evidence adduced
by the plaintiff came to the conclusion that the execution of the suit pro-
note has been established. Merely because, there are some contradictions
between the testimony of P.W.1 and P.W.3 that would not go to the root of
the matter. I do not fault the reasoning of the first Appellate Court. The
first substantial questions of law is answered against the appellant.
8.The Judgment and decree passed by the first Appellate Court is
confirmed. The second appeal is dismissed. No costs. Consequently,
connected miscellaneous petition is closed.
26.04.2021
Internet : Yes/No
Index : Yes/No
rmi
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.593 of 2014
To
1.The Principal District Munsif Court, Tenkasi.
2.The Principal Sub Court, Tenkasi.
3.The Record Keeper,
V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.593 of 2014
G.R.SWAMINATHAN, J.
rmi
Judgment made in
S.A.(MD)No.593 of 2014
and
M.P.(MD)No.2 of 2014
26.04.2021
https://www.mhc.tn.gov.in/judis/
