Madras High Court
M.Arumugam vs M/S.Venkatachalapathy Banker on 13 December, 2021
S.A(MD)No.240 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 13.12.2021
CORAM
THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
S.A(MD)No.240 of 2020
and
C.M.P(MD)No.3064 of 2020
M.Arumugam ... Appellant/Appellant/1st Defendant
Vs.
1.M/s.Venkatachalapathy Banker,
Proprietor,
M.V.P.Mariappan. ... 1st Respondent/1st Respondent/Plaintiff
I.Shakthivel ... 2nd Respondent/2nd Respondent/
2nd Defendant
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure against the judgment and decree, dated 20.06.2019 passed
in A.S.No.19 of 2018 on the file of the Principal District Court,
Thoothukudi, confirming the judgment and decree, dated 21.09.2017
passed in O.S.No.232 of 2003 on the file of the Subordinate Court,
Thoothukudi.
For Appellant : Mr.M.P.Senthil
For R - 1 : Mr.S.Senthil Sankaranathkumar
1/12
https://www.mhc.tn.gov.in/judis
S.A(MD)No.240 of 2020
JUDGMENT
The concurrent Judgments and decrees passed in O.S.No.232 of
2003 on the file of the Subordinate Court, Thoothukudi and in
A.S.No.19 of 2018 on the file of the Principal District Court,
Thoothukudi, are being challenged in the present Second Appeal.
2.For the sake of convenience, the parties are referred to as, as
described before the trial Court.
3.The first respondent / plaintiff has instituted a suit in
O.S.No.232 of 2003, on the file of the trial Court for recovery of money
directing the defendants to pay a sum of Rs.1,55,700/- and
subsequent principal amount of Rs.1,50,000/- along with 12% per
annum from the date of plaint till the date of realisation, wherein, the
present appellant has been shown as the first defendant and the
second respondent has been shown as the second defendant.
4. In the plaint, it is averred that the defendants borrowed a sum
of Rs.1,50,000/- from the plaintiff on 04.04.2003 and agreed for
payment of interest at the rate of Rs.1/- for Rs.100/- and executed a
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S.A(MD)No.240 of 2020
promissory note. From the date of borrowal, the defendants have not
paid interest. Inspite of repeated demands made by the plaintiff, the
defendants have failed to repay the amount. Further, without the
knowledge of the plaintiff, the first defendant voluntarily retired from
service from Cargo Handling Labour Pool. The first defendant planned
to receive a sum of Rs.10,00,000/-, which come from the said
administration and planned to leave from the station and thereby
cheated the plaintiff. On knowing the same, the plaintiff has filed the
suit to recover the principal amount with interest.
5. The first defendant filed a written statement, denying the
allegations made in the plaint, stating that the first defendant had not
executed any promissory note and not received any amount, as
claimed by the plaintiff. The signature in the promissory note does not
belong to him. The first defendant, after filing the written statement,
has filed additional written statement, wherein, he had admitted that
he had received a sum of Rs.30,000/- only on 10.09.2001 from the
plaintiff and agreed to pay 18% interest for the same, for which, the
plaintiff has taken cheque leaves from the first defendant and on 24
occasions, the plaintiff had withdrawn money from the first defendant's
Bank account, through his agents namely Selvaraj, Maharaj,
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S.A(MD)No.240 of 2020
Namasivayam and Rajendraprasad. Further, on 20.06.2003, one
Rajendrapasad had taken a sum of Rs.45,000/- from the account of the
first defendant, for which, he has given a complaint against him before
the Superintendent of Police, Thoothukudi, on 04.07.2003. Since no
action has been taken by the Superintendent of Police, Thoothukudi, he
has approached the High Court and the Supreme Court. The plaintiff
has taken seven cheque leaves, bearing Nos.915553 to 915560 and
immediately, the first defendant has sent 'stop payment' instruction to
the Bank by way of telegram on 25.07.2003. The plaintiff issued notice
under Section 138 of the Negotiable Instrument Act, to pay a sum of
Rs.2,50,000/-, failing which, he will initiate legal action. The cheque
leaf bearing No.915555, which is one of the cheque taken away by the
plaintiff, by way of extortion. It is alleged that on 18.12.2003, the
plaintiff had requested the first defendant not to appear before the
Vigilance enquiry held by the High Court and if he do not appear as per
request, he will withdraw the case suit in O.S.No.232 of 2003 and
therefore, prayed for dismissal of the suit.
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S.A(MD)No.240 of 2020
6. Before the trial Court, on the side of the plaintiff, the plaintiff
himself was examined as P.W.1 and Exs.A1 to A5 were marked. On the
side of the defendants, two witnesses were examined as D.W.1 and
D.W.2 and Exs.B.1 to B.21 were marked.
7. On the basis of the rival pleadings on either side, the trial
Court, after framing necessary issues and after evaluating both the oral
and documentary evidence, has decreed the suit in favour of the first
respondent / plaintiff.
8. Aggrieved by the Judgment and decree passed by the trial
Court, the first defendant as appellant, had preferred an Appeal Suit in
A.S.No.19 of 2018 on the file of the first Appellate Court and the first
Appellate Court dismissed the appeal confirming the Judgment and
Decree passed by the trial Court.
9. Challenging the said concurrent Judgments and decrees
passed by the Courts below, the present Second Appeal has been
preferred at the instance of the first defendant as appellant.
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S.A(MD)No.240 of 2020
10. The learned counsel appearing for the appellant / first
defendant would submit that the very execution of promissory note
under Ex.A.1, the alleged pronote, has been disputed in the written
statement and no tangible steps was taken by the plaintiff to prove the
due execution of Ex.A.1, either for seeking expert opinion for
comparing the signature. The Courts below erred in law in not
adverting to the documentary evidence under Ex.B10 to Ex.B.13, which
is the reason and motive for filing the present suit by fraudulently
creating the disputed pro-note under Ex.A.1. The Courts below failed to
advert the other connected proceedings under Ex.B.1 to Ex.B9 as well
the first defendant in those proceedings. The Courts below erred in law
in not adverting that the plea raised in the additional written statement
has been substantiated on the basis of Ex.B.14 to Ex.B.21 and the
Courts below have completely brushed aside those documents
absolutely without considering the very purpose for which the
documents were filed.
11. The learned counsel appearing for the first respondent /
plaintiff would submit that on 04.04.2003, the defendants had obtained
a sum of Rs.1,50,000/- from the plaintiff with interest at the rate of
Rs.1/- for Rs.100/- and executed a promissory note to that effect.
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S.A(MD)No.240 of 2020
From the date of borrowal, the defendants have not paid interest.
Inspite of repeated demands made by the plaintiff, the defendants
have failed to repay the amount and he dragged on the repayment and
therefore, he filed the suit.
12. Heard the learned counsel appearing for the appellant / first
defendant and the learned counsel for the first respondent / plaintiff
and also perused the materials available on record.
13. It is an admitted case of the plaintiff that on 04.04.2003, the
defendants had obtained a sum of Rs.1,50,000/- from the plaintiff with
interest at the rate of Rs.1/- for Rs.100/- and executed a promissory
note to that effect. From the date of borrowal, the defendants have not
paid interest. Inspite of the repeated demands made by the plaintiff,
the defendants have failed to repay the amount and he dragged on the
repayment and therefore, he filed the suit. According to the first
defendant, the first defendant had not executed any promissory note
and signature in the pronote does not belong to him.
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S.A(MD)No.240 of 2020
14. The first defendant, after filing the written statement, has
filed additional written statement, wherein, he had admitted that he
had received a sum of Rs.30,000/- only on 10.09.2001 from the
plaintiff and agreed to pay 18% interest for the same, for which, the
plaintiff has taken cheque leaves from the first defendant and on 24
occasions, the plaintiff had withdrawn money from the first defendant's
Bank account, through his agents namely Selvaraj, Maharaj,
Namasivayam and Rajendraprasad. Further, on 20.06.2003, one
Rajendrapasad had taken a sum of Rs.45,000/- from the account of the
first defendant, for which, he has given a complaint against him before
the Superintendent of Police, Thoothukudi, on 04.07.2003. Since no
action has been taken by the Superintendent of Police, Thoothukudi, he
has approached the High Court and the Supreme Court. The plaintiff
has taken seven cheque leaves, bearing Nos.915553 to 915560 and
immediately, the first defendant has sent 'stop payment' instruction to
the Bank by way of telegram on 25.07.2003. The plaintiff issued notice
under Section 138 of the Negotiable Instrument Act, to pay a sum of
Rs.2,50,000/-, failing which, he will initiate legal action. The cheque
leaf bearing No.915555, which is one of the cheque taken away by the
plaintiff, by way of extortion.
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S.A(MD)No.240 of 2020
15. On a perusal of the materials available on record, it is seen
that the trial Court, after taking note of the fact that the first defendant
stand in not rasing any disputes about those 24 cheques when
encashed, came to the conclusion that the defendants have not come
to the Court with clean hands and misrepresented the Court and
thereby rightly decreed the suit. The first defendant having raised the
plea of 24 cheques have been encashed, in order to establish the said
fact, he ought to have produced his bank statement of account, but he
has not produced his bank statement of account to prove encashment
of 24 cheques. The first defendant has admitted the execution of
pronote, but denied receiving a sum of Rs.1,50,000/- towards
consideration. The trial Court also made comparison of the signature of
the first defendant with the admitted signatures and decreed the suit.
16. The plaintiff has taken steps to examine the witness, who
signed in Ex.A.1-pronote as witness, but as the whereabouts of that
witness was not known, the attesting witness was not examined on the
side of the plaintiff. The plaintiff also taken steps to send
Ex.A.1-pronote to handwriting expert by filing I.A.No.986 of 2014
before the trial Court to prove the signature found in Ex.A1-pronote is
the first defendant's signatute. However, the trial Court has dismissed
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S.A(MD)No.240 of 2020
the said petition on the ground that as per the Indian Evidence Act, the
Court has got power to compare the disputed signature found in
Ex.A.1-pronote with the admitted signature of the first defendant.
Accordingly, the trial Court compared the signature found in Ex.A.1
with the admitted signature of the first defendant and came to proper
conclusion. As noted earlier, the courts below, on appreciation of the
oral and documentary evidence on record, accepted the case of the
plaintiff and decreed the suit and I have no reason to interfere with the
same.
17. There is no answer from the first defendant what was the
further action taken after issuance of 'stop payment' to the bank.
What is the action taken for allowing the agents to encash the cheques.
When there is no answer, whether he has appeared before the High
Court for enquiry or not and the results not known, this Court is not
inclined to accept the case as projected by the defendants.
18. For the reasons aforesaid, this Court is of the considered
view that no substantial questions of law has been made out by the
appellant/first defendant to interfere with the well considered
judgments and decrees rendered by the Courts below. Accordingly, the
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S.A(MD)No.240 of 2020
Second Appeal is dismissed, confirming the Judgment and Decree,
passed in A.S.No.19 of 2018 by the Principal District Court,
Thoothukudi, confirming the judgment and decree, dated 21.09.2017
passed in O.S.No.232 of 2003 by the Subordinate Court, Thoothukudi.
No costs. Consequently, connected Miscellaneous Petition is closed.
13.12.2021
Index : Yes/No
Internet : Yes/No
ps
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.
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S.A(MD)No.240 of 2020
V.BHAVANI SUBBAROYAN, J.
ps
To
1.The Principal District Court,
Thoothukudi.
2.The Subordinate Court,
Thoothukudi.
3.The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
Judgment made in
S.A(MD)No.240 of 2020
13.12.2021
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