S.P.Panchavarnam vs R.Jawahar
2021 Latest Caselaw 16040 Mad

                                                                               A.S.No.214 of 2019

                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                DATED: 06.08.2021

                                                     CORAM:

                             THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN

                                               A.S.No.214 of 2019
                                                      and
                                           C.M.P.(MD)No.11299 of 2019


                   1.S.P.Panchavarnam

                   2.S.P.Senthil Nehru                       ... Appellants / 1 & 2 Defendants

                                                     -Vs-


                   R.Jawahar                                    ... Respondent / Plaintiff


                   PRAYER: Appeal filed under Section 96 of the Civil Procedure Code,
                   against the judgment and decree dated 13.09.2019 passed by the IV
                   Additional District Judge, Madurai in O.S.No.129 of 2015.


                                        For Appellants       : Mr.D.Rameshkumar
                                        For Respondent      : Mrs.K.R.Shivashankari


                                                   JUDGMENT

The defendants in O.S.No.129 of 2015 on the file of the fourth

Additional District Judge, Madurai, are the appellants in this appeal.

https://www.mhc.tn.gov.in/judis/

A.S.No.214 of 2019

2. The respondent herein namely Thiru.R.Jawahar filed the said suit

for recovering a sum of Rs.19,35,000/- from the appellants with interest at

the rate of 6% per annum. The appellants are the mother and son.

According to the respondent, they approached him on 02.02.2013 through

one Murugan and borrowed a sum of Rs.15,00,000/-. They executed a

promissory note in the presence of Maruthu Pandi, Murugan and Sathish

Kumar. The appellants failed to make any repayment either towards

principal or interest. When the respondent approached the appellants on

15.06.2015 and demanded the money back, the appellants refused to

comply with the said demand. Left with no other option, he filed the said

suit.

3. The appellants filed the written statement controverting the plaint

averments. They pleaded that they never borrowed any money from the

respondent. The respondent is an utter stranger to them. The appellants

came out with a version that they had financial dealings with one Kannan

and his wife Amuthu and that the said Kannan and Amuthu had taken

several documents and also signed blank papers from them. Dispute arose

between the appellants and the said Kannan's family. The appellants even

gave a police complaint against them. While so, O.S.No.894 of 2013 was

filed for the relief of specific performance against the appellants. The said

suit came to be dismissed on 02.07.2015. On the said date, Kannan is said https://www.mhc.tn.gov.in/judis/

A.S.No.214 of 2019

to have challenged the appellants that he would not spare them and that he

would file another case through a third party and see to it that the house

property of the appellants is taken by him.

4.The defendants pleaded that the plaintiff had lent his name to

oblige his friend Kannan and based on the signed blank pro-note given by

the appellants to the said Kannan, the present suit had been instituted.

Based on the divergent pleadings, the learned trial Judge framed the

necessary issues. The plaintiff examined himself as P.W.1 and the attestors

Murugan and Sathish Kumar as P.W.2 and P.W.3. Ex.A1 to Ex.A11 were

marked. The first appellant Panchavarnam examined herself as D.W.1 and

marked Ex.B1 to Ex.B8. After a consideration of the evidence on record,

the learned trial Judge, by the impugned judgment and decree dated

13.09.2019 decreed the suit as prayed for. Challenging the same, this

appeal has been filed.

5.The point that arises for consideration is whether the appellants

had rebutted the presumption raised against them under Section 118 of the

Negotiable Instruments Act and whether they have on a balance of

probabilities shown that Ex.A1-pro-note dated 02.02.2013 was not

executed in favour of the respondent and whether there was failure of https://www.mhc.tn.gov.in/judis/

A.S.No.214 of 2019

consideration. The learned counsel appearing for the appellants reiterated

all the contentions set out in the memorandum of grounds. He also filed

his written argument. He called upon this Court to reverse the impugned

judgment and decree and dismiss the suit.

6. Per contra, the learned counsel appearing for the respondent

submitted that the respondent / plaintiff had proved the due execution of

Ex.A1-pro-note. The appellants have admitted the signature found on

Ex.A1. The respondents herein examined not only himself as P.W.1, but

also the attesting witnesses Murugan as P.W.2 and scribe Sathish Kumar as

P.W.3. In view of the above, the trial Court rightly raised presumption

under Section 118 of the Negotiable Instruments Act against the appellants.

The defendants have miserably failed to rebut the said presumption. They

had of-course come up with a fanciful theory that they had dealings with

one Kannan and that they had handed over signed blank documents and

that in view of the break down of the relationship between the appellants

and the said Kannan, the said Kannan had engineered filing of the present

suit through the plaintiff. Except making allegations of sweeping and

general nature, the appellants have not at all proved their defence.

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A.S.No.214 of 2019

7. The respondent herein was working as District Employment

Officer. He had retired from service. By marking Ex.A2 to Ex.A11, the

respondent had convincingly established that he had the wherewithal to

lend the suit amount. The financial capacity of the respondent is beyond

question. According to the learned counsel appearing for the respondent,

the Court below had correctly appreciated the evidence on record and

applied the relevant legal principles and rightly decreed the suit.

According to her, the impugned judgment and decree does not call for any

interference. He pressed for dismissal of the appeal.

8. I carefully considered the rival contentions and went through the

evidence on record. The point for consideration is whether the defendants

have rebutted the presumption raised against them under Section 118 of the

Negotiable Instruments Act and shown on a balance of probabilities that it

was not executed in favour of the plaintiff? It must be stated at the very

outset that signature found in Ex.A1-pro-note has not been disputed. The

defence of the appellants is that this pro-note was given in a signed blank

form to one Kannan and since the said Kannan had lost the suit for specific

performance, he engineered the filling of the present suit through the

respondent herein. This defence was taken by the appellants at the earliest

point of time. The suit was filed on 14.07.2015. The written statement was https://www.mhc.tn.gov.in/judis/

A.S.No.214 of 2019

filed in the very next month. The filing of the suit was not preceded by any

notice from the respondent herein. In the plaint, it had been averred that the

pro-note was executed by the appellants in the presence of Maruthu Pandi,

Murugan and R.Sathish Kumar. There is nothing on record to indicate that

the said Sathish Kumar had anything to do with Kannan. Yet, a firm

defence had been taken in the written statement invoking Kannan. In the

course of cross examination, it had been categorically brought out that

while the respondent herein was employed as District Employment Officer,

Kannan was working as an employee in the District Employment exchange.

It had also been brought out that the said Sathish Kumar was none other

than the son of Amutha/ Kanna's wife born through her first husband

Ramasamy. In the cross examination of P.W.3, it had been elucidated that

the address of P.W.3-Sathish Kumar as set out in the pro-note was false.

Sathish Kumar is actually a resident of Goripalayam. But in the pro-note,

he had mentioned that he was residing at Door No.81, Nehru Street,

Jaihindpuram,Madurai-11. The appellants invoked the provisions of Right

to Information Act and elucidated from Madurai Corporation that in the

said address, one Muthukrishnan S/o. Chelliahpillai is residing. The reply

given by the Madurai Corporation was marked as Ex.B7.

https://www.mhc.tn.gov.in/judis/

A.S.No.214 of 2019

9. P.W.3 in his evidence admitted that the plaintiff was also employed

in the employment exchange and that when he casually visited the

plaintiff's house, he was asked to write Ex.A1-pro-note. He claimed that he

knew the respondent Jawahar through his son Raja. The evidence of P.W.3

does not inspire my confidence at all.

10. The respondent herein examined himself as P.W.1. When he was

questioned, he denied any knowledge of Kannan initially. Only later, he

conceded that he knew Kannan. When his financial capacity was

questioned, he admitted that the retirement benefits would come to around

13 to 14 lakhs. It is improbable that the respondent herein could have

advanced a sum of Rs.15,00,000/- in one lumpsum to the appellants herein.

The appellants herein were not at all known to the respondent earlier. The

respondent claims that one Murugan introduced them. Murugan was

working only as lorry driver in the Madurai Corporation. When he was

questioned further, the respondent was not aware of the details of the said

Murugan also. Admittedly, no security was taken from the appellants. The

plaintiff was a gazetted officer and he was obviously an IT assessee. The

transaction in question is also not reflected in the IT returns. He also

admitted that he was not a money lender. Even though according to the

respondent the loan was given on 02.02.2013. But till the filing of the suit https://www.mhc.tn.gov.in/judis/

A.S.No.214 of 2019

in July 2015, he had not issued a single notice calling upon the appellants

to repay the amount. When the entire life time savings of the respondent

had been given to the appellants, he would not have kept quiet. The suit

was also not preceded by notice. All these circumstances have been

elucidated by the appellants by cross examining the witnesses for the

plaintiff. By eliciting the aforesaid answers, the presumption drawn against

the appellants under Section 118 of the Negotiable Instrument Act had been

on a balance of probabilities rebutted. The Court below had miserably

failed to appreciate the defence projected by the appellants herein. When

specific allegations had been made invoking the name of Kannan and when

P.W.3 Sathish Kumar is none other than the son of Amutha/ Kanna's wife

born through her first husband Ramasamy, the Court below ought to have

subjected the plaintiff's case to a closer scrutiny. But the Court below had

mechanically accepted the case of the plaintiff and taken his version as

gospel truth. It is true that the suit has been filed on the strength of a pro-

note. The defendants have not disowned the signatures found in the pro-

note. The persons shown as attestors and scribe have been examined. That

alone would not mean that the execution of Ex.A1-pro-note had been

established. On this sole ground, the Court below had chosen to accept the

case of the plaintiff and decreed the suit as prayed for without taking note

of the defence version.

https://www.mhc.tn.gov.in/judis/

A.S.No.214 of 2019

11. For the reasons set out above, I hold that the defendants have

clearly rebutted the presumption raised under Section 118 of the Negotiable

Instruments Act. The defendants have established that the suit pro-note was

not executed by them in favour of the plaintiff. The judgment and decree

passed by the Court below is set aside. The suit is dismissed. The appeal is

allowed. No costs. Consequently, connected miscellaneous petition is

closed.

06.08.2021

Internet : Yes/No Index : Yes/No rmi

To

1.The IV Additional District Judge, Madurai.

2. The Section Officer,

Vernacular Records, Madurai Bench of Madras High Court, Madurai.

https://www.mhc.tn.gov.in/judis/

A.S.No.214 of 2019

G.R.SWAMINATHAN.J.,

rmi

Judgment made in A.S.No.214 of 2019 and C.M.P.(MD)No.11299 of 2019

06.08.2021

https://www.mhc.tn.gov.in/judis/