V.Franklin Edwindoss vs V..Marimuthu
2021 Latest Caselaw 16173 Mad

                                                                                  S.A.No.460 of 2014

                              IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED: 09.08.2021

                                                        CORAM:

                                   THE HONOURABLE MR.JUSTICE M.GOVINDARAJ

                                                 S.A.No.460 of 2014
                                                         &
                                                  M.P.No.1 of 2014

                V.Franklin Edwindoss                                            ... Appellant

                                                          Vs.

                V..Marimuthu                                                    ... Respondent

                PRAYER: The Second Appeal has been filed under Section 100 of the Civil
                Procedure Code to set aside the judgment and decree dated 26.11.2013 made in
                A.S.No.60 of 2011 on the file of the Sub Court, Gudiyattam, Vellore District
                confirming the judgment and decree dated 05.040.2011 made in O.S.No.177 of
                2008 on the file of the learned District Munsif Court, Gudiyattam, Vellore
                District.


                                        For Appellant     : Mr.K.A.Ravindran
                                        For Respondents   : Ms.A.B.Fathima Sulthana
                                                          -----




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https://www.mhc.tn.gov.in/judis/
                                                                                     S.A.No.460 of 2014

                                                     JUDGMENT

Aggrieved over the concurrent findings of the Court below, the

unsuccessful plaintiff has preferred the above Second Appeal.

2. According to the appellant, he used to borrow money from the

plaintiff and in the course of their transactions, the respondent/plaintiff used a

discharged pronote, affixed a new Revenue stamp and filed a suit for recovery

of money. He has taken the defence that he discharged the entire loan amount

and Revenue stamp was torn away in the presence of one Duraisamy. The

pronote was sent for expert opinion wherein the expert has opined that it is not

possible to offer any reliable opinion on the disputed signature. However, the

Trial Court considering the elaborate evidence made by both the sides arrived

at a finding that it is the habit of the parties to poke the Revenue stamp on

discharge of the dues. On the disputed promissory note, there is no hole or

poking mark and further no evidence to show that the Revenue stamp was torn

and affixed afresh. Even though the appellant/defendant claimed that the

discharge of loan was witnessed by Duraisamy, he has not chosen to examine

the said person as witness. Other witnesses could not add credibility to the

contention of the appellant/defendant. Therefore, the Courts below have given a

https://www.mhc.tn.gov.in/judis/ S.A.No.460 of 2014

categorical finding that there is no material alteration or manipulation as

alleged is found on the promissory note.

3. Even before this Court, the learned counsel appearing for the

appellant could not substantiate through relevant evidence that there was

material alteration on the pronote or on the signature found on the promissory

note. On the other hand, from the evidence placed before this Court, it is noted

that the appellant in his oral evidence has categorically admitted that he has

subscribed his signature below the Revenue Stamp. When the execution of

promissory note is admitted, the presumption shall be that the consideration has

already been passed and the appellant has borrowed the money. To rebut the

presumption, onus is cast upon the borrower to prove that he has discharged the

debt. Even though the defendant had taken a stand that he has discharged the

debt in the presence of one Duraisamy, he failed to examine him as a witness. It

goes to show that the rebuttal has not been proved. In the absence of any

contrary evidence that the defendant has discharged the debt, I do not find any

material to interfere with the concurrent findings of fact by the Courts below.

The materials placed before the Court gives rise to question of fact and does not

https://www.mhc.tn.gov.in/judis/ S.A.No.460 of 2014

give rise to substantial question of law much less any question of law. In such

circumstances, the above Second Appeal does not deserve admission and

accordingly the same is dismissed. Consequently, connected miscellaneous

petition is closed.

09.08.2021.

Internet:Yes Index:Yes/No

https://www.mhc.tn.gov.in/judis/ S.A.No.460 of 2014

M. GOVINDARAJ, J.

kpr

To

1. The Sub Judge, Gudiyattam, Vellore District

2.The learned District Munsif Court, Gudiyattam, Vellore District.

S.A.No.460 of 2014 & M.P.No.1 of 2014

09.08.2021

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