Madras High Court
V.Paneerselvam vs V.Thangavozhivu(Died) on 1 December, 2021
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATE: 01.12.2021
CORAM
THE HON'BLE MRS.JUSTICE V. BHAVANI SUBBAROYAN
S.A.(MD) No.186 of 2014
and
M.P(MD) No.1 of 2014
1. V.Paneerselvam
2. V.Thangapazam
3. V.Samuthirapandi
4. V.Mathiyalagan
5. V.Paramasivan Appellants
vs.
1. V.Thangavozhivu(Died)
2. Rajammal
3. Mahendran
4. Kanagaraj
5. Sagunthala
(RR 2 to 5 are brought on record as LRs
of the deceased sole appellant vide court order
dated 21.06.2021 made in CMP(MD) Nos.4710
4712 of 2021 in SA(MD) No.186 of 2014) ...Respondents
Second Appeal filed under Section 100 of CPC against the
Judgment and Decree in A.S.No.114 of 2011 passed by the learned
Subordinate Judge, Tenkasi dated 27.06.2013 confirming the decree
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2
and judgment in O.S.No.577 of 2008 passed by the learned Additional
District Munsif, Tenkasi dated 14.07.2011.
For Appellants : Mr.Ananth C.Rajesh
For Respondents : Mr.M.P.Senthil
JUDGMENT
The present second appeal has been filed against the Judgment
and Decree in A.S.No.114 of 2011 passed by the learned Subordinate
Judge, Tenkasi, dated 27.06.2013, confirming the decree and
judgment in O.S.No.577 of 2008, passed by the learned Additional
District Munsif, Tenkasi dated 14.07.2011.
2. For the sake of convenience, the parties are referred to as, as
described before the trial Court.
3.The case of the plaintiff, as per the averments made in the
plaint, in short, is that the defendants had obtained a sum of
Rs. 50,000/- from the plaintiff, for interest at the rate of 12% per
annum, on executing a promissory note stating that they will repay the
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amount on demand, but the defendants failed to repay the principal
amount as well as the interest, even after demanding the same by the
plaintiff. Hence the plaintiff has filed the suit for recovery of the said
amount.
4. The second defendant filed written statement rebutting the
allegations levelled against him, by the plaintiff. He further submits
that the plaintiff is selling beedi on retail by illegally using the logo and
popular name of the beedi company, purchasing the same from the
second defendant's as well as from others. He also submits that in the
year 2002, the second defendant borrowed a sum of Rs.25,000/- from
the plaintiff, on executing a promissory note, but the same was repaid
fully in the year 2004. But the plaintiff did not return the promissory
note stating that the same was mixed up with other papers. Thereafter
in the year 2008, the police charged the plaintiff for illegal use of the
brand name of the other beedi company. For that, the plaintiff
requested the second defendant to appear on behalf of him as witness
and depose in favour of him, but he refused to do the same. The
plaintiff got agitated over the same, and to wreck vengeance, the
plaintiff had filed the suit using the promissory, note which was
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executed in the year 2002. He would also submit that he has not
executed such promissory note for a sum of Rs.50,000/- and prayed
for dismissal of the same.
5. On the side of the the plaintiff he examined himself as P.W.1
and examined one Sarguna as P.W.2 and one document was marked
as Ex.A1. On the side of the defendants, one witness viz., K.
Thangapazam was examined as witness and no document was marked.
6.On analysis of the oral and documentary evidence, the Trial
Court has allowed the suit in favour of the plaintiff. Aggrieved by the
same, the defendants has preferred an appeal in A.S. No.196 of 2011,
on the file of the learned Subordinate Judge, Thoothukudi.
7. The first appellate court, dismissed the appeal suit,
confirming the judgement and decree of the trial Court. Aggrieved by
the Judgment and decree passed by the first appellate Court, the
present Second Appeal has been filed the defendants
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8. In the memorandum of Second Appeal, the
appellant/defendant sought to raise the following substantial questions
of law?
a) Whether the Courts below are right in
granting the decree in favour of the plaintiff when the
execution of Ex.A.1 was denied and no consideration
was received and without proving the execution and
the passing of the consideration by producing
necessary documents and the evidence?
b)Whether the granting of money decree is
valied in the eye of law,when the plaintiff failed to
prove his case?
c)Whether the granting of money decree is
valid by taking advantage of the weakness of the
defendants case?
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d)Whether the decree passed by the Courts
below can be equated for the proverb in Tamil '
Kadai Thenkayai Eduthu vali Pillayarkku
udaippaaathu'?
9. The learned counsel appearing for the appellants / defendants
would submit that the courts below failed to consider the vital aspect
that the execution of the instrument itself denied and hence, the
burden of proof to prove the case lies on the plaintiff and contrary to
the above, placing burden on the defendant is bad in law. The courts
below failed to analyze Ex.A1, in which, the 2nd witness one
Kalaiselvam stated that he is the scribe of Ex.A1, but he was not
examined to prove the case of the plaintiff. The statements of P.W.1
and P.W.2 are contradictory with each other with regard to
consideration received by the defendants and this proves that the suit
itself filed based on a created instrument. The pronote was executed
in the year 2002 by the defendants, and even after settlement of the
dues, which was not unreturned and misused for filing the above suit
by the plaintiff.
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10.The learned counsel appearing for the respondent/ plaintiff
would vehemently oppose the Second Appeal by contending that the
well considered Judgments of the Courts below need not be interfered
with, as there is no question of law involved in this Second Appeal and
prayed for dismissal of the Second Appeal.
11. This Court paid its anxious consideration to the rival
submissions made and also carefully perused the materials placed on
record.
12. It is seen from the records that the defendants had obtained
a sum of Rs. 50,000/- from the plaintiff, for interest at the rate of
12% per annum, on executing a promissory note stating that they will
repay the amount on demand, but the defendants failed to repay the
principal amount as well as the interest. According to the defendants,
the in the year 2002, the second defendant borrowed a sum of Rs.
25,000/- from the plaintiff, on executing a promissory note, but the
same was repaid fully in the year 2004. But the plaintiff did not return
the promissory note stating that the same was mixed up with other
papers. Thereafter in the year 2008, the police charged the plaintiff
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for illegal use of the brand name of the other beedi company. For that,
the plaintiff requested the second defendant to appear on behalf of
him as witness and depose in favour of him, but he refused to do the
same. The plaintiff got agitated over the same, and to wreck
vengeance, the plaintiff had filed the suit using the promissory, note
which was executed in the year 2002. According to the 2nd defendant,
he has not executed such promissory note for a sum of Rs.50,000/-.
13. Ex.A1 is the pronote. According to the 2 nd defendant, in the
year 2002, he had obtained Rs.25,000/- from the plaintiff and had
executed a pronote for same. Subsequently, in the year 2004, he
repaid the amount with interest to the plaintiff, but the plaintiff has not
returned the pronote stating that it is minged with some other paper
and would be returned latter. The promissory note is a 'piece of rank
forgery' and as per the promissory note, no amount is due to be paid
by the plaintiff and the consideration mentioned in the promissory note
is false and also that the promissory note is not a valid one. The
plaintiff examined himself as P.W.1 and produced Ex.P1, pronote, to
prove his case. The 2nd defendant alone contesting the case and that
the other defendants have not come forward to contest the case. It is
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the settled law that a person, who pleads forgery should come out with
cogent evidence to establish the plea of forgery.
14. P.W.2 was examined on the side of the plaintiff to prove
Ex.A1, pronote. P.W.2 in his evidence stated that the plaintiff alone
came to the house of P.W.2 at about 6.00 p.m., and P.W.2 wrote the
pronote, thereafter, he left along with the pronote. Further, the
defendants have not received any amount in front of P.W.2 and hence,
it was contended by the defendants that the suit pronote is a rank
forgery. Therefore, On 02.06.2010, P.W.2 was summoned for cross-
examination, by the 2nd defendant, but the 2nd defendant had not
appeared on that day and therefore, an exparte decree was passed
and thereafter, based on an application in I.A.No.45 of 2011, the ex-
parte decee was set aside. Again P.W.2 called for cross-examination
by the defendants' side and P.W.2 gave a contradictory statement,
against his earlier statement, for which, it was the contention of the
plaintiff that due to enmity between P.W.2 and the plaintiff, such
contradictory statement has been made by P.W.2 and on analyzing the
version of P.W.2, the courts below rejected the evidence of P.W.2.
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15. Therefore, this Court has no hesitation to comes to a
conclusion that execution of Ex.A1, promissory note, by the
defendants had been proved by the plaintiff. This Court in a catena of
decisions held that where findings of fact by the courts below are
based on evidence, the High Court in Second Appeal cannot simply
substitute its own findings on reappreciation of evidence merely on the
ground that another view was possible.
16. This Court, after careful perusal of the materials available on
record, especially, evidence led on record by the plaintiff, finds no
error in the Judgments and Decrees passed by the Courts below and
as such, there is no occasion for this Court to interfere in the well
reasoned Judgment.
17. In the facts and circumstances as discussed above, this Court
is of the view that the findings rendered by the trial court and upheld
by the first appellate Court, do not warrant any interference of this
Court, as findings given on the issues framed by the Courts below as
well as specifically taken up by this Court to reach the root of the
controversy, appears to be based upon correct appreciation of oral as
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well as documentary evidence. Hence, the present Second Appeal fails
and is dismissed, accordingly. However, there shall be no order as to
costs. Consequently connected miscellaneous petition is also closed.
18. Though the Courts below awarded interest at the rate of
12%,per annum, this Court is inclined to reduce the interest to 8% per
annum from the date of filing of the petition till the date of judgement,
and thereafter, till the date of payment, the plaintiff is entitled to get
interest at the rate of 6 % per annum.
01.12.2021
Index: Yes/No.
Internet: Yes/No.
aav
Note: In view of the present lock down owing to COVID 19 pandemic, a web
copy of the order may be utilised 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 Sub Court, Thoothukudi
2. The Principal District Munsif, Thoothukudi.
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V. BHAVANI SUBBAROYAN, J.
aav
S.A.(MD) No.186 of 2014
and
M.P(MD) No.1 of 2014
01.12.2021
https://www.mhc.tn.gov.in/judis
