Madras High Court
Deepa vs Chinnaveliappan on 8 December, 2021
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATE: 08.12.2021
CORAM
THE HON'BLE MRS.JUSTICE V. BHAVANI SUBBAROYAN
S.A.(MD) No.730 of 2021
and
CMP(MD) No.9711 of 2021
Deepa ....Appellant
vs.
Chinnaveliappan ..Respondent
Second Appeal filed under Section 100 of CPC against the
judgment and decree dated 07.07.2017 made in A.S.No.18 of 2015 on
the file of the Additional District and Sessions Judge, Theni @
Periyakulam, confirming the judgment and decree dated 02.08.2013
made in O.S.No.68 of 2011 on the file of the Subordinate Judge,
Uthamapalayam.
For Appellant : Mr.R.Suriya Narayanan
JUDGMENT
The present second appeal has been filed against the judgment
and decree dated 07.07.2017 made in A.S.No.18 of 2015 on the file of
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the Additional District and Sessions Judge, Theni @ Periyakulam,
confirming the judgment and decree dated 02.08.2013 made in
O.S.No.68 of 2011 on the file of the Subordinate Judge,
Uthamapalayam.
2. The present appeal has been filed for recovery of money from
the defendant to pay a sum of Rs.4,00,000/- together with
subsequent interest at 6% per annum Rs.3,00,000/- from the date of
plaint till realization and for cost.
3. This matter is taken up for admission and decided.
4. For the sake of convenience, the parties are referred to as, as
described before the trial Court.
5.The case of the plaintiff, as per the averments made in he
plaint, in short, reads as follows :
On 22.09.2008, the defendant borrowed a sum of Rs.3,00,000/-
for her urgent need and family expenses and also executed 3
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promissory notes at Muthulapuram Village on the same date for Rs.
1,00,000/- and also agreed to repay the same on demand by signing
in the promissory note each Rs.1,00,000/- with interest at the rate of
Rs.1/-, for Rs.100/- per month. Since the defendant did not adhere to
the terms and agreement for payment of money the plaintiff with no
other alternate remedy filed the suit seeking for payment of money by
recovering the same from the defendant.
6. The defendant filed a written statement denying all the
averments in the plaint and submitted that the defendant and her
husband Easwaran had jointly executed a mortgage deed of their
property in Kamayagoundapatty Village in S.No.1433 to an extent of
1.58 Acre grape lands to one Muthuveerappan, S/o Subramani on
06.12.2009 for a sum of Rs. 4 lakhs admitting to pay the said amount
within a period of three years. But the said Muthuveerapan had again
executed a mortgage property till 05.12.2002 and the said
Muthuveerapan was enjoying the property raising crops and he was
earning the profits. Then there arose a misunderstanding between
them, for which, Muthuveerapan filed a police complaint before the
Rayappanpatty Police Station. On that complaint this defendant and
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her husband received the original mortgage deed from the said
Muthuveerapan and thus, the defendant and her husband executed
four blank promisory notes in favour of one Rasu w/o. Eswaran for
seurity purpose and handed over the pronotes to the said
Muthuveeerapan. On 18.06.2011, they have also executed a consent
letter stating that the defendant ought to have returned the mortgage
money of Rs.4 lakhs to Muthuveerappan. As the defendant was
unable to pay the said amount, the said Muthuveerapn had filed up
the particulars in the three promissory notes, which were blank, except
the signatures, by incorporating the amount as Rs.4,00,000/-. There is
no consideration for the suit promissory notes and thus there is no
cause of action for the suit and the suit is liable for dismissal.
7. On the side of the the plaintiff, 3 witnesses were examined as
P.W.1 to P.W.3 and 5 documents were marked as Exs.A1 to A5. On the
side of the defendant, the defendant herself was examined as D.W.1
and marked 3 documents as Exs. B1 to B.3.
8.On analysis of the oral and documentary evidence, the Trial
Court has allowed the suit, as prayed for. Aggrieved by the same, the
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defendant has preferred an appeal in A.S. No.18 of 2015, on the file of
the learned Additional District and Sessions Judge.
9. The first appellate court, after considering the oral and
documentary evidence of the parties, had dismissed the appeal suit.
Aggrieved by the Judgment and decree passed by the first appellate
Court, the present Second Appeal has been filed the defendant.
10. In the Memorandum of Grounds, the appellant / defendant
in this appeal sought to raise the following Substantial Questions Law:-
a) Whether the suit promissory notes are not supported by
consideration, in view of the circumstantial evidence available in the
case which rebuts the presumption under Section 118 of the
Negotiable Instrument Act in favour of the plaintiff?
b) Whether the Courts below are correct in taking presumption
in favour of the plaintiff as under Section 118 of the Negotiable
Instrument Act when the suit promissory notes are unfilled one and
the same should be dealt with under Section 20 of the Negotiable
Instrument Act?
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c) Whether the execution of three promissory notes each for
Rs.1,00,000/- instead of one, on the same day, non issuing of demand
notice and filing of the suit at the end of 3 years, would be the
preponderance of probability to rebut the presumption in favour of the
plaintiff relating with Ex.A.1 to Ex.A.3?
d) Whether the plaintiff is a holder or holder in due course of
Ex.A.1 to Ex.A.3, when admittedly the unfilled promissory notes are
received by his son-n-law under Ex.B.3?
11. The learned counsel appearing for the appellant/ defendant
would submit that the alleged suit pronotes have been fabricated in the
name of the defendant, which were given as security and hence, the
respondent cannot maintain the suit for recovery of money, when the
plaintiff has not lent any amount to the defendant and pronotes are
not supported by consideration, but the Court take the presumption
under Section 118 of Negotiable Instrument Act, which is rebuttable
one and decreed the suit without considering evidence. The courts
below miserably failed to note that the plaintiff has no sufficient means
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in his hand to lent money to the outsiders, as could be seen from the
evidence of P.W.2. The Courts below committed serious error by
observing that the appellant had admitted the signature in the alleged
pronotes and hence as under Section 118 of the NI Act came into pay
with regard to the payment of consideration, time, date etc without
adverting to the fact that the said presumption is rebutted by the
evidence of the defendant. The burden of proof is on the plaintiff that
he is the holder of promissory note during the course of transaction
and having every right to enforce it, but without proving the same, the
suit must failed, but the trial court wrongly allowed the suit and hence,
the same is illegal. As per Section 118 of the Negotiable Instruments
Act, the presumption is rebuttable presumption and in such
circumstances it is the duty of the plaintiff to prove his case without
any room or doubt.
12. The learned counsel for the defendant would further contend
that Ex.B1 to B3 would shows that money transaction under mortgage
was commenced only on 06.12.2009 between the defendant and
Muthuveerappan and not on 22.09.2008 between the defendant and
the plaintiff, as alleged in the plaint. The Courts below approached
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the case only on the premise of Section 118 of the Negotiable
Instruments Act, and not on Section 20 of Negotiable Instruments Act
and hence, the judgment and decree of the Courts below is not only
erroneous but also illegal. The Courts below failed to see the
suspicious circumstances such as, execution of three pronotes instead
of one, non issuing of demand notice and filing the suit at the fag end
of three years, the relationship between the plaintiff and the
witnesses P.W.2 and P.W.3 and the relationship between the plaintiff
and Muthuveerappan form whom the defendant borrowed money and
the evidence of P.W.3 to prove that the plaintiff has no sufficient means
to lent money to the defendant and all the above circumstances are
clearly established the case of the defendant and disproved the case
of the plaintiff.
13. Heard the learned counsel for the appellant / defendant and
the learned counsel for the respondent / plaintiff and also perused the
materials available on record.
14. According to the plaintiff, the defendant borrowed the sum of
Rs.3,00,000/- for which, the defendant executed 3 promissory notes
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each for Rs.1,00,000/- and agreeing to repay interest at 12% p.m.
Inspite of repeated demands made by the plaintiff, the defendant failed
to repay the loan amount. According to the defendant, she has not
executed the suit pronotes and the suit pronotes executed in favour of
Muthuveerapan, who is the father-in-law of the Plaintiff, which was
admitted by P.W.1. According to the defendant, she and her husband
executed the mortgage deed on 06.12.2009 for a sum of Rs.
4,00,000/- in respect of the property situated in Kamayagoundenpatti
Village, S.No.1433, 1.58 Acre for the period of 3 years and they also
executed mortgage deed on the same day. The said Muthuveerapan
unable to enjoy the mortgage property till 05.12.2012, and thereby,
Muthuveerapan demanded for the repayment of mortgage amount. At
that time, there was misunderstanding between the defendant and her
husband and executed the balnk pronotes in favour of the said
Muthuveerapan and the defendant signed in the pronotes only for the
purpose of security.
15. Admittedly, in the written statement the defendant nowhere
averred that the signature in the suit promissory note is not that of
her. It is impliedly admitted that the suit promissory notes were
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executed by the defendant, but as blank promissory notes. Since the
defendant admitted the execution of promissory notes, it give raise to
presumption that consideration has been passed to the defendant as
written in the suit pronote, as per Section 118 of the Negotiable
Instruments Act. The defendant herself was examined as D.W.1 and
the notice sent by Muthu Veerappan stated in the written statement
and the reply notice received by the defendant her husband and one
Eswari has been marked as Ex.A1 and Ex.A2 and unregistered othi
deed executed by the defendant and her husband in favour of said
Muthuveerappan is marked as Ex.A3. It is admitted by P.W.1 that the
said Muthu Veerappan is the son-in-law of the defendant
16. P.W.1 in his cross-examination had deposed as follows:-
“ehd; tptrha njhopy; nra;J tUfpd;Nwd;. vdf;F
nrhe;jkhd 60 nrz;L epyk; Kj;JyhGuj;jpy; cs;sJ.njd;id
tptrhak; nra;J tUfpd;Nwd;. 45 ehl;fSf;F xUKiw
2000>3000 tUkhdk; tUk;. vd; kfd; jdpahh; fk;ngdpapy;
Ntiy ghh;j;J tUfpwhh;. khj khjk; &.1000>2000 vd
nfhLg;ghh;. ,ijj; jtpu NtW tUkhdk; vdf;F ,y;iy.
vdJ rpW Nrkpg;gpd; %ykhf jPghtpw;F 3 yl;rk; fldhf
nfhLj;Njd;.”
Therefore, it is clear that P.W.1 had not admitted that he had no means
to lend money. Further, there is no pleading regarding the means of
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the plaintiff to lend money and further suggestion was also not put to
the plaintiff whether he had no means to lend money. The question
regarding why 3 pronotes executed on the same date and the suit was
filed at the fag end of the limitation were ever suggested during cross
examination on P.W.1 and that aspect was also not pleaded in the
written statement. Further the defendant had not attempted to
produce and mark the complaint given by the Muthuveerapan against
the defendant and her husband. In Ex.B.3 also 4 unfilled stamped
pronote (ie)” xU yl;rk; &gha; ehd;F GnuhNehl;L kl;Lk; ngw;Wf;nfhz;Nld;“ is
written in different ink. Hence, as per Section 118 of the Negotiable
Instruments Act, it has not been satisfactorily rebutted by the
defendant proved that the pronotes have been executed by the
defendant for the consideration mentioned in the pronotes. Therefore,
this Court is of the considered view that execution of Ex.A1 to Ex.A3
promissory notes by the defendant had also been proved by the
plaintiff and hence, the same has been executed by the defendant.
17. 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
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as such, there is no occasion for this Court to interfere in the well
reasoned Judgment.
18. 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
well as documentary evidence. Hence, the present appeal fails and is
dismissed, accordingly. No costs. Consequently connected
miscellaneous petition is also closed.
08.12.2021
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.
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To
1. The Additional District and Sessions Judge, Theni @ Periyakulam
2. The Subordinate Judge, Uthamapalayam.
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V. BHAVANI SUBBAROYAN, J.
aav
S.A.(MD) No.730 of 2021
and
CMP(MD) No.9711 of 2021
08.12.2021
https://www.mhc.tn.gov.in/judis
