Madras High Court
S.Pandian vs M.Bose on 17 December, 2021
S.A(MD)No.122 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 17.12.2021
CORAM
THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
S.A(MD)No.122 of 2021
and
C.M.P(MD)No.6905 of 2021
S.Pandian ... Appellant/Appellant/Plaintiff
Vs.
M.Bose ... Respondent/Respondent/Defendant
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure against the judgment and decree, dated 24.06.2020 passed
in A.S.No.35 of 2019, on the file of the Additional District and Sessions
Court, Theni at Periyakulam, confirming the judgment and decree
dated 25.09.2019 passed in O.S.No.63 of 2016, on the file of the
Subordinate Court, Periyakulam.
For Appellant : Mr.C.Jeyaprakash
For Respondent : Mr.M.Mohamed Ajeesdheen
1/10
https://www.mhc.tn.gov.in/judis
S.A(MD)No.122 of 2021
JUDGMENT
The concurrent Judgments and decrees passed in O.S.No.63 of
2016 by the Subordinate Court, Periyakulam and in A.S.No.35 of 2019,
by the Additional District and Sessions Court, Theni at Periyakulam, are
being challenged in the present Second Appeal.
2. The appellant/plaintiff has instituted a suit in O.S.No.63 of
2016, on the file of the trial Court for recovery of money directing the
defendant to pay a sum of Rs.4,15,400/- and 12% interest on the
principal amount of Rs.3,10,000/- from the date of plaint till the date
of realisation, wherein, the present respondent has been shown as
defendant.
3. The case of the plaintiff is that the defendant had borrowed a
sum of Rs.3,10,000/- for his urgent family needs and business
development from the plaintiff on 10.06.2015 and executed a
promissory note agreeing to pay interest at the rate of Rs.2/- for every
hundred rupees and to repay the loan with interest on demand made
by the plaintiff. Since the defendant did not repay either the interest or
the principal, the plaintiff had approached the defendant requesting
him to repay the loan. The defendant evaded to make payment. Hence,
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S.A(MD)No.122 of 2021
the plaintiff sent a legal notice on 10.10.2016 calling the defendant to
repay the loan amount along with interest. Even though the defendant
received the legal notice on 13.10.2016, he failed to repay the loan nor
sent any reply. Hence, the plaintiff filed the suit.
4. The defendant filed a written statement denying all the
averments made in the plaint and submitted that the defendant had
never borrowed the loan from the plaintiff on 10.06.2015 and executed
a promissory note and he never put his signature in the promissory
note. The promissory note is a fabricated and forged one created by
the plaintiff.
5. Before the trial Court, on the side of the plaintiff, P.W.1 to P.W.
3 were examined and Exs.A1 to A9 were marked. On the side of the
defendant, D.W.1 and D.W.2 were examined and Exs.B.1 & B.2 were
marked and Ex.C.1 and Ex.C.2 were marked.
6. On the basis of the rival pleadings made on either side, the
trial Court, after framing necessary issues and after evaluating both the
oral and documentary evidence, has dismissed the suit.
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S.A(MD)No.122 of 2021
7. Aggrieved by the Judgment and decree passed by the trial
Court, the plaintiff, as appellant, had filed an Appeal Suit in
A.S.No.35 of 2019. The first appellate Court, after hearing both sides
and upon reappraising the evidence available on record, has dismissed
the appeal and confirmed the Judgment and decree passed by the trial
Court.
8. Challenging the said concurrent Judgments and decrees
passed by the Courts below, the present Second Appeal has been
preferred at the instance of the plaintiff, as appellant.
9. At the time of admitting the present second appeal, this Court
had framed the following substantial questions of law for consideration:
"(i) Whether the Courts below were right in relying
upon the evidence of expert alone to come to the
conclusion that the suit promissory notice has not been
executed by the defendant?
(ii) Whether the appellant had demonstrated that
the report of the expert is flawed?"
10. The learned counsel appearing for the appellant/plaintiff
would submit that the Courts below have misconstrued the case of the
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S.A(MD)No.122 of 2021
plaintiff and on an erroneous approach, had dismissed the suit by
simply relying upon the opinion of the expert. Therefore, the
Judgments and Decrees passed by the Courts below are liable to be set
aside. In the written statement, the defendant has refused his
signature in Ex.A.1 wantonly, wilfully and adamantly, but his signatures
in all the documents are similar signature as signed in the promissory
note and prayed for allowing the Second Appeal.
11. The learned counsel appearing for the respondent/plaintiff
would submit that both the Courts below have correctly dismissed the
suit and prayed for dismissing the Second Appeal.
12. Heard the learned counsel appearing for the appellant and
the learned counsel appearing for the defendant and also perused the
records carefully.
13. The plaintiff claimed that the defendant had borrowed a sum
of Rs.3,10,000/- as loan from the plaintiff for his urgent family needs
and for improvement of business and executed a promissory note on
10.06.2015 at Periyakulam and agreed to pay the interest. Since the
defendant neither paid the interest nor the principal and evaded to
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S.A(MD)No.122 of 2021
make payment and hence, the plaintiff issued a legal notice on
10.10.2016 calling the defendant to make the payment. Even after
receiving the notice, the defendant has not chosen either to make
payment or to make suitable reply. The defendant has claimed that he
never borrowed the loan from the plaintiff and executed a promissory
note on 10.06.2015 and the promissory note alleged to have been
executed by the defendant is fabricated and forged and that the
defendant never put his signature in the promissory note.
14. From the evidence of P.W.1 to P.W.3, it is seen that the
alleged money transaction took place in foot-step of the Perumal
Temple in Periyakulam. Admittedly, the plaintiff as well as the
defendant are residing in the same Village and same street,
viz., Melmangalam Village, Ammapatti Street. When the plaintiff as well
as the defendant are residing at the same Village and same street, why
the plaintiff had chosen the Perumal Temple at Periyakulam and the
alleged transaction took place at the foot-step of Perumal Temple at
Periyakulam, cannot be accepted. The plaintiff would categorically say
that he did not know the scribe of the promissory note and the
defendant brought the promissory note. P.W.2 and P.W.3 would also
depose that they did not see the promissory note when it was written.
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S.A(MD)No.122 of 2021
From the evidence of P.W.1 to P.W.3, the execution of
Ex.A.1-promissory note was not proved.
15. The defendant denied his signature made in Ex.A.1 and it is
averred that Ex.A.1 is a fabricated and forged one. He took an
application to send Ex.A.1 to the expert to examine the signature of
the defendant scientifically. Accordingly, he submitted Ex.B.2-original
sale deed, dated 05.03.2012 and the same was compared with the
signature found in Ex.A.1. The Handwriting Expert examined the
alleged signature of the defendant found in Ex.A.1 and Ex.B.2 and
came to the conclusion that both the signature varies and not signed
by the same person. The Document Expert was examined as D.W.2,
who had marked his report as Ex.C.1 and he assigned the reason for
his decision. The opinion given by the expert which was supported with
other relevant fact can be considered. The evidence of P.W.1 to P.W.3
would not suffice to prove the execution of Ex.A.1 and the opinion
given by the expert is supported by the evidence of P.W.1 to P.W.3.
Hence, this Court is of the view that the plaintiff has failed to prove
that the promissory note was executed by the defendant for obtaining
loan.
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S.A(MD)No.122 of 2021
16. P.W.2 in his chief examination has stated that for doing real
estate business, the defendant had borrowed loan from the plaintiff
and executed a promissory note. The said promissory note was written
by Ramasamy in Periyakulam and received the loan in Periyakulam and
at that time, Ramasamy came along with the defendant. But P.W.3 in
his cross-examination has stated that he know the plaintiff for the past
20 years and he did not know what business he was doing and in front
of the Temple, the defendant had borrowed the loan amount from the
plaintiff. On the side of the plaintiff, there is no proof to show that
P.W.2 went along with the plaintiff and asked the defendant to pay the
loan amount. The evidence of P.W.1 to P.W.3 would not suffice to prove
the execution of Ex.A.1. Since the plaintiff has failed to establish his
case and both the Courts below have rightly dismissed the same and
hence, this Court is also not inclined to interfere with the well
considered Judgments and Decrees passed by the Courts below. The
substantial questions of law are ordered accordingly in favour of the
defendant and against the plaintiff.
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S.A(MD)No.122 of 2021
17. In fine, the Second Appeal is dismissed. No costs. The
Judgments and decrees passed in O.S.No.63 of 2016 by the
Subordinate Court, Periyakulam and in A.S.No.35 of 2019, by the
Additional District and Sessions Court, Theni at Periyakulam, are
confirmed. Consequently, connected Miscellaneous Petition is closed.
17.12.2021
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.
https://www.mhc.tn.gov.in/judis
S.A(MD)No.122 of 2021
V.BHAVANI SUBBAROYAN, J.
ps
To
1.The Additional District and Sessions Court,
Theni at Periyakulam.
2.The Subordinate Court,
Periyakulam.
3.The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
Judgment made in
S.A(MD)No.122 of 2021
17.12.2021
https://www.mhc.tn.gov.in/judis
