Madras High Court
A.Thomas Xavier vs N.Murugesan on 20 April, 2021
1 S.A.(MD)NO.564 OF 2011
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 20.04.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.564 of 2011
A.Thomas Xavier ... Appellant/Appellant/
Defendant
Vs.
N.Murugesan ... Respondent/Respondent/
Plaintiff
Prayer: Second appeal filed under Section 100 of
C.P.C., against the Judgment and Decree dated 30.06.2010
made in A.S.No.1 of 2010 on the file of the Additional District
Judge-Fast Track, Ramanathapuram, confirming the Judgment
and Decree dated 07.09.2009 made in O.S.No.15 of 2006 on
the file of the Subordinate Judge, Paramakudi.
For Appellant : Mr.Panneerselvan
For Respondent : Mr.R.Murali
***
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2 S.A.(MD)NO.564 OF 2011
JUDGMENT
The appellant in this second appeal is one
Thiru.A.Thomas Xavier. The respondent herein
Thiru.Murugesan filed O.S.No.15 of 2006 before the Sub
Court, Paramakudi, for recovery of a sum of Rs.1,98,000/- with
interest at 18% from the appellant herein. The suit was laid on
the strength of Ex.A.1. The respondent examined himself as
P.W.1 and one Kannan was examined as P.W.2. The appellant
examined himself as D.W.1 and one Palpandiyan was
examined as D.W.2 and Ex.B.1 Ex.B.3 were marked. The trial
Court after consideration of evidence on record, by Judgment
and Decree dated 07.09.2009 decreed the suit and directed
the appellant to pay a sum of Rs.1,98,000/- and to pay interest
at 6% p.a. for the principal amount of Rs.1,50,000/-.
Questioning the same, the appellant filed A.S.No.1 of 2010
before the Additional District Judge-Fast Track Court,
Ramanathapuram. The appeal was dismissed by Judgment
dated 30.06.2010. Questioning the same, this second appeal
came to be filed.
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3 S.A.(MD)NO.564 OF 2011
2. The second appeal was admitted on the following
substantial questions of law:-
“ a) Are the Courts below correct and
justified in invoking presumption under Section
118 of Negotiable Instruments Act when
execution of pro-note is denied? and
b) When once execution is denied is not
the burden on the plaintiff to prove due
execution and when once execution is not
proved whether presumption under Section 118
can be invoked?”
3. Heard the learned counsel on either side.
4. The case of the appellant is that his friend, namely,
Palpandiyan was in need of funds and therefore, the appellant
took him to one Ibramsha. Ibramsha was willing to lend a sum
of Rs.30,000/- as loan to Palpandiyan but insisted that the
appellant should sign the promissory note. The appellant had
signed the promissory note sometime in the year 1997, when
he worked as official in State Bank of India, Paramakudi
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4 S.A.(MD)NO.564 OF 2011
Branch. The appellant got transferred from Paramakudi
Branch in the year 1997 to Devakottai.
5. The case of the appellant is that the loan
transaction between Palpandiyan and Ibramsha was settled.
But Ibramsha did not return the blank promissory note signed
by the appellant herein. The appellant would further claim
that he had nothing to do with the respondent Murugesan.
Murugesan is not at all known to him. The learned counsel
appearing for the appellant took me through the deposition of
Murugesan and submitted that Murugesan did not have the
wherewithal to lend a huge amount of Rs.1,50,000/- in the
year 2003. Murugesan had admitted in the cross examination
that he did not even have any bank account. Even as the
learned counsel appearing for the appellant proceeded with
his contentions, I felt that the appellant must have actually
borrowed money from Ibramsha and that since the said loan
was not repaid, Ibramsha must have set up the respondent to
institute the present suit. If really, the loan transaction
involving Ibramsha had been settled, the appellant would have
definitely got back his signed blank promissory note. That the
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5 S.A.(MD)NO.564 OF 2011
signed blank promissory note was not taken back by the
appellant was a circumstance that went against him. The
appellant is not a rustic or illiterate villager. He is a bank
official. Therefore, he knew the consequences of the signed
blank promissory note given by him remaining at large. At the
same time, there is a considerable merit in the contention of
the appellant's counsel that the respondent did not have any
wherewithal.
6. I indicated to the learned counsel on either side
that the issue can be amicably resolved without inviting a
decision on merits because one party will have to lose
completely. I am glad to note that the parties agreed to settle
the matter amicably.
7. When the second appeal was admitted, the
appellant was directed to deposit 50% of the admitted amount
together with interest. The learned counsel appearing for the
appellant states that in compliance of the said interim order,
the appellant had deposited a sum of Rs.1,32,000/-. Obviously,
the said amount should be lying in an interest bearing
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6 S.A.(MD)NO.564 OF 2011
account. The appellant has no objection for the respondent to
withdraw the deposited amount with accrued interest. In other
words, the respondent should withdraw the amount towards
full satisfaction of the suit claim.
8. The learned counsel appearing for the appellant
contacted the respondent over phone in my presence and he
has no objection to the course of action suggested by the
appellant. Therefore, this second appeal is disposed of by
permitting the respondent to withdraw the amount deposited
by the appellant in compliance with the interim order made in
this second appeal on 01.08.2011. The said amount is lying to
the credit of O.S.No.15 of 2006 on the file of the Sub Court,
Paramakudi. The respondent can file an application for
withdrawing the same and the trial Court will allow the same
without notice to the appellant and it would be towards full
satisfaction of the suit claim. No costs.
20.04.2021
Index : Yes / No
Internet : Yes/ No
PMU
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7 S.A.(MD)NO.564 OF 2011
Note: In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may be
utilized for official purposes, but, ensuring that the
copy of the order that is presented is the correct
copy, shall be the responsibility of the
advocate/litigant concerned.
To:
1. The Additional District Judge-Fast Track,
Ramanathapuram.
2. The Subordinate Judge,
Paramakudi.
3. The Record Keeper, V.R.Section,
Madurai Bench of Madras High Court, Madurai.
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8 S.A.(MD)NO.564 OF 2011
G.R.SWAMINATHAN,J.
PMU
S.A.(MD)No.564 of 2011
20.04.2021
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