Madras High Court

C.Kumar vs P.Sivasubramaniam on 20 December, 2021

                                                                                          A.S.No.664 of 2018

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                      Dated : 20.12.2021

                                                          CORAM :

                                 THE HON'BLE MR. JUSTICE T.RAJA
                                              AND
                       THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY

                                                      A.S.No.664 of 2018

                     C.Kumar                                                             ... Appellant
                                                        Versus

                     P.Sivasubramaniam                                                   ... Respondent

                                    Prayer : First Appeal filed under Section 96 r/w Order 41 Rule
                     1 and Order 42 Rule 1 of Civil Procedure Code, against the Judgment and
                     Decree dated 28.02.2018 in O.S.No.159 of 2015 of the learned II –
                     Additional District and Session Judge, Tiruppur.

                                              For Appellant       : Mr.V.Nicholas
                                              For Respondent      : Ms.C.Meena

                                                         JUDGMENT

(The Judgment of this Court was delivered by Mr.Justice.D.Bharatha Chakravarthy)

This Appeal suit is filed by the unsuccessful defendant in the suit

in O.S.No.159 of 2005 on the file of the Learned II Additional District and

Sessions Judge, Tiruppur, wherein by Judgment dated 28.02.2008, the

Trial Court decreed the suit filed by the plaintiff and directing the

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A.S.No.664 of 2018

appellant herein to pay a sum of Rs.25,75,000/- to the plaintiff/respondent

herein, along with further interest and principal amount of Rs.15 Lakhs, at

the rate of 9% per annum from the date of plaint, till the date of decree and

at the rate of 6% per annum from the date of decree, till the date of

realization.

2.The case of the plaintiff/respondent before the Trial Court is

that after obtaining a loan by way of cash for a sum of Rs.15 Lakhs, the

appellant /defendant executed a promissory note under Ex.A1, dated

06.06.2012, promising to repay the principal along with interest at the rate

of 24% per annum. The appellant/defendant duly signed the said

promissory note and also affixed his left thumb impression. Since no

amount was repaid, either towards principal or interest, the plaintiff caused

a legal notice on 25.05.2013. Upon receipt of the same, the defendant

caused a reply dated 25.02.2013, feigning ignorance of the respondent /

plaintiff and completely denying the transaction and requested for

forwarding the copy of the alleged promissory note.

3.In response, thereof, the plaintiff caused re-joinder notice on

06.06.2013, thereby denying the false allegations in the reply and also https://www.mhc.tn.gov.in/judis

A.S.No.664 of 2018

forwarding the copy of the promissory note. To the said notice, once

again, a reply dated 08.06.2013 was issued by denying the borrowal and

stating that the promissory note was forged and fabricated. Therefore, the

plaintiff proceeded to file the suit on 02.06.2015.

4.Upon filing of the suit, the defendant filed an application in

I.A.No.853 of 2015 to refer the promissory note for expert for verifying

signature in the promissory note by comparing it with the admitted

signature. However the same was dismissed by the Trial Court on

05.01.2016. Thereafter, on 04.02.2016, the defendant filed a written

statement, denying the transaction and the signature. It is his further

submission that he had enimity with one Rangasamy who carried on a

partnership real estate business with him and after the business had fallen

down the said Rangasamy by making use of the signature of the appellant /

defendant made during the course of the real estate transaction, has caused

the plaintiff to institute the suit. The Trial Court framed the following

issues:-

"1. Whether the promissory note dated 06.06.2012 is true, valid, genuine and acted upon?

2. Whether the plaintiff is entitled to get a relief as prayed for?

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A.S.No.664 of 2018

3. To what relief the parties are entitled to? "

5.The plaintiff examined himself as PW.1, One Velayutham,

who was the witness of promissory note, as PW.2, One Saminathan, who

is a scribe, who wrote the promissory note as PW.3. Apart from marking

the promissory note as Ex.A1, on behalf of the plaintiff, the office copy of

the legal notice was marked as Ex.A2 and the acknowledgment card as

Ex.A3. The reply notice issued on behalf of the defendant was marked as

Ex.A4. The re-joinder notice dated 06.06.2013 issued by the plaintiff was

marked as Ex.A5 and the reply to the re-joinder notice dated 08.06.2013

was marked as Ex.A6. On behalf of the defendant, the defendant viz.,

Kumar examined himself as DW.1 and marked certified copy of the sale

deed dated 27.02.2013 as Ex.D1.

6.The Trial Court, after hearing both sides, had found that, first

the plaintiff has got into box as PW.1 and the documents were duly marked

and he deposed about the lending of the money. In support of evidence of

PW.1, the attesting witness, who had witnessed the defendant borrowed

the money, was examined as PW.2 and the scribe of the promissory note

was also examined as PW.3, who have all categorically deposed about the

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A.S.No.664 of 2018

borrowal of money by the appellant / defendant. The Trial Court found that

even though the appellant / defendant disputed the signature, he has not let

in any clear cut evidence to prove the same. Even though, he had filed an

Interlocutory application, after dismissal of the same, he had not taken any

further steps. Further, there was also deficiency in the application filed by

him. The plaintiff also forwarded a copy of the promissory note to him

along with re-joinder notice. He had not taken any steps by preferring any

criminal complaint if such forged promissory note was sought to be

enforced against him. Further defense of the appellant that his actual name

is R.Kumar, but, his signature in the promissory note is signed as

C.Kumar and therefore, the promissory note is forged, was rejected by the

Trial Court by relying upon the evidence of DW.1 himself, stating that in

the cross-examination he has stated that only the name is mentioned as C.

Kumar but the signature is made as R.Kumar, only. Therefore, the Trial

Court rejected the defense of the appellant / defendant and decreed the suit

with 9% pendelite interest and 6% interest post the decree.

7.Aggrieved by the same, the present appeal has been filed. In

the memorandum of grounds of the appeal. The appellant / defendant has

raised grounds stating that:

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A.S.No.664 of 2018

i) the Judgment of the Trial Court is against law and

probabilities of the case,

ii) that the defendant has categorically denied the execution of

the said promissory note and thumb impression, therefore, the burden is on

the plaintiff to establish the same;

iii) the plaintiff has filed a suit after the period of two years of

the reply notice;

iv) The onus is upon the plaintiff, to send the promissory note for

comparison of signature and the defendant has marked the document viz.,

sale deed, to show the admitted signature. Therefore, in the absence of the

above steps not taken, decreeing of the suit was incorrect in law.

8.Heard Mr.V.Nicholas, learned counsel for the appellant /

defendant and Ms.C.Meena, learned counsel appearing for the

respondent/plaintiff.

9.On behalf of the appellant, learned counsel would primarily

raised two grounds:

a) Firstly, when the defendant has denied the signature in the

promissory note, it was for the plaintiff, to establish the same and in this https://www.mhc.tn.gov.in/judis

A.S.No.664 of 2018

case, the plaintiff has miserably failed to take steps to refer the promissory

note for comparison of signatures by way of expert opinion and in the

absence of the same, the Trial Court ought to have dismissed the suit.

Further, in this case, even though it was not the onus of the defendant, the

appellant / defendant himself had filed an application, which was rejected

by the Trial Court on the ground that it was for the plaintiff to prove the

promissory note. Therefore, in these circumstances, the plaintiff had

miserably failed to prove the promissory note and consequently, the decree

of the trial court is liable to be reversed.

b) His second submission is that the conduct of the plaintiff is

not normal. When the defendant had issued reply notice, totally denying

the transaction and alleging that the promissory note is a forged one, the

normal reaction of any reasonable man, would file the suit immediately.

According to him, even though the reply to the rejoinder of notice was

issued on 08.06.2013, the suit was filed only on 02.06.2014, therefore, the

same would also demonstrate that there was no borrowal at all and the suit

is an abuse of process of law.

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A.S.No.664 of 2018

10.Per contra, the learned counsel appearing for the respondent

would draw the attention of this Court, to the signature of the defendant in

the proof affidavit filed by him and comparing the same, with the signature

found in Ex.P1 / promissory note, would submit that it is crystal clear even

to the naked eye that it was the signature of the appellant which is found in

the promissory note. It is only the appellant / defendant who had executed

the promissory note and the same was duly proved by examining the

attesting witness. The Trial Court is not bound to refer the promissory note

for comparison of signature, just on the frivolous and bald plea of denying

the signature. She would further submit that the suit for recovery of

money is filed within the period of limitation. Therefore, she would

contend that the suit has been rightly decreed.

11.Upon hearing the parties, the following questions arise for

consideration in this appeal :-

1. Whether or not, the plaintiff has proved Ex.P1/promissory note and whether the absence of comparison of the signature at the instances of the plaintiff would disentitle the plaintiff of the relief ?

2. Whether or not, the filing of the suit after two https://www.mhc.tn.gov.in/judis

A.S.No.664 of 2018

years of the issue of the rejoinder notice, would raise any reasonable doubt about the borrowal of money ?

Question No.1 :

12. At the outset, it needs to be reiterated that once the

execution of the promissory note /Ex.P1 is proved by the plaintiff and

there is no contra evidence let in by the defendant to rebut the presumption

under Section 118 of N.I. Act, it would be presumed that the promissory

note was executed for valid consideration. Now, therefore, the question is

whether the plaintiff has proved the execution of Ex.A1/ promissory note.

In our opinion, the plaintiff has done so for the following reasons:-

a) Apart from examining himself as PW.1, the attesting witness

was examined as PW.2 and the scribe of the promissory note was

examined as PW.3 and they were corss examined in detail and no

favourable answers could be elicited by the defendant/appellant;

b) the defendant had issued a reply notice on 24.05.2013 and

thereafter, reply to rejoinder was issued on 08.06.2013. On both these

occasions, he did not raise the defense that one Rangasamy had set up the

plaintiff as binami and using his signature in the real estate transaction, the

promissory note is sought to be enforced. In the written statement, which

was very belatedly filed, after a period of one year of the suit, alone the https://www.mhc.tn.gov.in/judis

A.S.No.664 of 2018

defense is raised, which points out the same as frivolous in nature;

c) It is the defense of the defendant that the signature contained

in Ex.A1/promissory note is signed as C.Kumar, whereas, he used to sign

as R.Kumar. This is factually wrong. It is only the name of the appellant /

defendant, which is wrongly mentioned as C.Kumar, because, he has also

mentioned his father name as 'Chinnasivanmalai alias Raj' . However on a

perusal of Ex-P1, it is clear that signed appears only as R.Kumar and the

said fact duly admitted by the defendant in the cross-examination;

d) The appellant/defendant had filed his proof affidavit in this

case on 08.01.2018. The signature in Ex.P1/promissory note and the

signature in the proof affidavit of the appellant / defendant, on a

comparison, can be found as similar. In this regard, when the defendant

was cross-examined by the plaintiff, the defendant answered are follows:-

".../ ,/k/vz;/1203-2016y; cs;s kD kw;Wk; gpukhzg; gj;jphpf;ifapy; cs;s ifbaGj;J vd;Dilajy;y////" Therefore, apprehending the plaintiff would compare the signatures in

Ex.P1/promissory note with that of the signature contained in the proof

affidavit, the defendant has gone into the extent of denying the signature in

the proof affidavit filed by him, through his own advocate before this

Court. In such view of the matter, we find that there was no necessity for

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A.S.No.664 of 2018

the plaintiff to send Ex.P1/promissory note for comparison of signatures.

For the above reasons, we answer the question number one in favour of the

plaintiff/respondent and against the appellant / defendant.

Question No.2 :

13.As far as the second question is concerned, so long as the suit

is filed within the limitation, in a suit for recovery of money, mere delay

in filing the suit, when it is within the period of limitation, is immaterial, as

any plaintiff would repeatedly attempt and insist the defendant to pay the

money and he would avoid filing of the suit by paying further Court fees

and approaching the Court. Therefore, the arguments of the learned

counsel for the appellant does not merit any consideration and hence,

rejected.

14.In view of our findings, we confirm the findings of the Trial

Court, in respect of issue no.1, that promissory note dated 06.06.2012 is

true, genuine and acted upon. We also confirm the findings of the Trial

Court in respect of issue no.2 that the plaintiff is entitled to get the relief of

recovery of the sum of Rs.25,75,000/- with further interest on the principal

sum of Rs.15 Lakhs at the rate of 9% per annum, from the date of plaint

and till the date of decree and at the rate of 6% per annum from the date of https://www.mhc.tn.gov.in/judis

A.S.No.664 of 2018

decree, till the date of realisation. We also find that the appellant /

defendant has deposited 50% of the decree amount, pursuant to the interim

order passed by this Court, which we hold that the respondent / plaintiff

will be entitled to withdraw the same.

15.Accordingly, we order the Appeal Suit, on the following

terms :-

(i) The Appeal Suit is hereby dismissed and the Judgment and Decree

of the Trial Court / II – Additional District and Sessions Judge,

Tiruppur in O.S.No.159 of 2015, dated 28.02.2018 is confirmed;

(ii) that the defendant shall bear the costs of the respondent of the

appeal, in addition to the costs of the suit.

(iii)The respondent / plaintiff will be entitled to withdraw the sum

deposited by the appellant / defendant to the credit of the suit in

O.S.No.159 of 2015, along with accrued intersts.



                                                                                          20.12.2021
                     Index    : Yes
                     Speaking order
                     klt

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                                                                                 A.S.No.664 of 2018




                     To