Madras High Court
J.Sundari Ammal vs R.Vellaichamy on 23 December, 2021
S.A(MD)No.213 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 23.12.2021
CORAM
THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
S.A(MD)No.213 of 2017
and
C.M.P(MD)No.4263 of 2017
J.Sundari Ammal ... Appellant/Appellant/Defendant
Vs.
R.Vellaichamy ... Respondent/Respondent/Plaintiff
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure against the judgment and decree, dated 25.11.2016 passed
in A.S.No.4 of 2014, on the file of the Principal District Court, Tuticorin,
confirming the judgment and decree, dated 31.10.2013 passed in
O.S.No.215 of 2008, on the file of the Subordinate Court, Tuticorin.
For Appellant : Ms.P.Jessi Jeeva Priya
for Mr.G.Aravinthan
1/14
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S.A(MD)No.213 of 2017
JUDGMENT
The concurrent Judgments and decrees passed in O.S.No.215 of
2008 by the Subordinate Court, Tuticorin and in A.S.No.4 of 2014, by
the Principal District Court, Tuticorin, are being challenged in the
present Second Appeal.
2. The respondent/plaintiff has instituted a suit in O.S.No.215 of
2008, on the file of the trial Court for recovery of money directing the
defendant to pay a sum of Rs.1,35,833/- along with future interest on
Rs.1,00,000/- from the date of plaint till the date of realisation from
the asset (L) Jeyachandran, wherein, the present appellant has been
shown as defendant.
3. The case of the plaintiff is that the defendant's husband
B.Jeyachandran, son of Balaiya Nadar, had borrowed a sum of
Rs.1,00,000/- on 21.12.2005 from the plaintiff for his family expenses
and executed a promissory note on the same day in favour of the
plaintiff promising to repay the said sum with interest at the rate of
12% per annum. Inspite of many demands made by the plaintiff, the
defendant's husband did not pay either the principle amount nor the
interest. In the meantime, the defendant's husband-B.Jeyachandran
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S.A(MD)No.213 of 2017
died in the year 2006, leaving behind him the defendant as his only
legal heir to succeed the movable and immovable properties of
B.Jeyachandran. The defendant, as a legal heir, was enjoying the
properties of her husband and as such, the defendant is liable to
discharge the debts of her husband. Hence, the plaintiff demanded the
payment of the loan from the defendant, immediately, after the death
of her husband. Since the defendant was not intended to pay any
amount, the plaintiff filed the suit.
4. The defendant filed a written statement denying all the
averments made in the plaint and submitted that the plaintiff is running
a finance company under the name of style of “NPK Kuruthammal
Finance” at Tuticorin and he is the proprietor of the same. On
01.01.1996, the defendant's husband had borrowed a sum of
Rs.32,500/- to purchase a Hero Honda Motor cycle and by availing the
loan, the defendant's husband had purchased the Hero Honda Motor
cycle bearing Registration No.TN-69-B-1067 and the defendant's
husband had repaid the loan amount as agreed and the same has been
endorsed in the passbook issued by the plaintiff. Further, the
defendant's husband had requested the plaintiff to sign in the
necessary forms to submit before the transport office, Tuticorin, so as
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S.A(MD)No.213 of 2017
to cancel the hypothecation endorsement in the RC Book of the motor
cycle. Inspite of repeated demands, the plaintiff refused to sign in the
necessary form. At the time of getting loan, the plaintiff obtained
signatures from the defendant's husband in many blank papers with
revenue stamp and printed forms. Since the plaintiff was claiming more
interest, the hypothecation endorsement could not be cancelled and
still it is subsisting in the original RC of the above referred Motor cycle.
After the death of the defendant's husband, the plaintiff refused to
cancel the hypothecation endorsement in the RC book and filed the
suit. The plaintiff had filled up the blank paper, which were signed by
the defendant's husband and had fabricated it into a promissory note
and prayed for dismissal of the suit.
5. Before the trial Court, on the side of the plaintiff, P.W.1 and
P.W.2 were examined and Exs.A1 to A4 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.
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 decreed the suit.
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S.A(MD)No.213 of 2017
7. Aggrieved by the Judgment and decree passed by the trial
Court, the defendant, as appellant, had filed an Appeal Suit in
A.S.No.4 of 2014. 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 defendant, as appellant.
9. At the time of admitting the present second appeal, this Court
had framed the following substantial questions of law, for
consideration:
”a. Whether the presumption under Section 118 of
the Negotiable Instrument Act, in favour of the holder is
available, against the deceased executant.
b. Whether the Courts below are correct in relying
on Ex.A.3 without verifying that it is not complied with the
requirements stipulated under Section 65-B of the
Evidence Act?
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S.A(MD)No.213 of 2017
c. Whether the document received without
complying with under Section 65-B of the Indian Evidence
Act can be relied on as relevant document within the
provisions of Section 34 of the Indian Evidence Act for
proving each particular entry therein?
d. Whether the lower Appellate Court has committed
an act of illegality in passing a personal decree, as against
the legal representative of the debtor, without restricting
the enforceability of the decree, in so far is related to or
to the extent of the estate of the deceased debtor,
available in the hands of the legal representative, namely,
the appellant?
e. When the respondent is a licensed money lender
under the Tamil Nadu Money Lenders Act, whether the
failure to draw presumption for not producing the account
books directed to be maintained under Section 9(1)((a)
and (b)) of Tamil Nadu Money Lenders Act thereto is an
act of illegality committed by the Court?"
10. The learned counsel appearing for the appellant/defendant
would submit that the first Appellate Court has committed an act of
illegality in law, in taking the entries under Ex.A.3 to rely upon the plea
made by the respondent, as a proof for the payment of a sum of
Rs.1,00,000/- as loan, to the deceased husband of the appellant,
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S.A(MD)No.213 of 2017
whereas, Ex.A.3 entries are not admissible in evidence, unless the
ledgers were produced by the respondent. The first Appellate Court
cannot accept all the said documents, unless, the electronic devices
were to be produced by the respondent and accompanied with the
certificate, as contained under Section 65-B (4) of the said Act,
identifying the electronic record containing the statement and
describing the manner by which, it was produced and giving such
particulars of any device involved in the production of that electronic
records, as may be appropriate, for the purpose of showing that the
electronic record was produced by the computer and dealing with the
matters, to which the condition mentioned in sub-Section (2) relates.
The first Appellate Court ought to have seen that as per the evidence
of P.W.2, purporting to be an attestor to Ex.A.1-promissory note, she
raised loan, by pledging her jewels, on 21.12.2005, whereas, there
was no entry, for giving loan to P.W.2 on 21.12.2005 and the same
would clearly go to show that the entire A3 document had been created
only for the purpose of this case and that the entries made therein are
inadmissible in evidence, without the production of the ledger books as
well as the rough day book and prayed for allowing the Second Appeal.
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S.A(MD)No.213 of 2017
11. Heard the learned counsel for the appellant and also perused
the records carefully.
12. The case of the plaintiff is that the defendant's husband had
obtained a loan of Rs.1,00,000/- for his family expenses. Since he did
not repay the said sum with interest at the rate of 12% per annum, the
plaintiff filed a suit for recovery of money. The case of the defendant is
that her husband obtained a loan to the tune of Rs.32,500/- for
purchasing a Hero Honda Motor cycle on 01.01.1996 and he repaid the
said amount. But the plaintiff has not cleared the endorsement made in
the RC book and had utilised the said papers, which has been executed
in the year 2005, misusing the same has filed the suit, which is barred
by limitation and the documents which were given as security for
payment of loan has been misused. The plaintiff submitted that the
said money has been paid to the defendant's husband and in order to
prove his case, the plaintiff has produced the promissory note, dated
21.12.2005 has been marked as Ex.A.1, the money lending licence,
has been marked as Ex.A.2, 2005-2006 day book original, has been
marked as Ex.A.3, and the income tax receipts, has been marked as
Ex.A.4 and these documents would prove that the plaintiff has paid a
sum of Rs.1,00,000/- to the defendant's husband.
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S.A(MD)No.213 of 2017
13. The defendant was not in a position to prove her case that
the defendant's husband had accompanied with the plaintiff, when he
obtained the loan to purchase the two-wheeler either in the written
statement or in the chief-examination and only for purchasing the Hero
Honda Vehicle, the plaintiff had obtained signature in various blank
papers and promissory note was not proved beyond doubt. D.W.2 in his
evidence, has stated that he went along with the defendant's husband
while paying the money in instalments, but he has not stated in his
evidence that the plaintiff has not questioned the loan obtained by the
defendant's husband. From the evidence of D.W.2, it is seen that
Ex.A1-promissory note is a genuine one. Accordingly, the defendant
was not in a position to prove that the signature in the promissory note
was not of her husband and without any receipt of money, the
defendant's husband has signed in the said document, was also not
proved by the defendant. The plaintiff was able to prove the same
through P.W.2, who in his cross-examination, has deposed that only
after receiving the money, the defendant's husband alleged to have
signed the same and also the defendant has not put any question to
the witnesses that the said document was executed only at the time of
obtaining the loan for the purchase of a Hero Honda Motor cycle and
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S.A(MD)No.213 of 2017
when such a question has been taken as a main point, she has not
denied the same in the written statement and has not even put a
suggestion to the witness regarding the same while examining the
witnesses and they were not able to establish the true facts as denied
in the written statement. The genuinety of the day book ledger was
also questioned by the defendant, but they were not in a position to
establish the said accounts which were maintained are forged one or it
is a created document for this case.
14. In Ex.A.3-day book ledger, it has been found that the loan
amount has been disbursed, wherein, it is clearly found that including
the defendant's husband many other persons also obtained loan and
the same would prove that the said document is a genuine one and the
said day book ledger was not proved to be a false or forged document.
D.W.2 in his cross-examination, had admitted that how much money
obtained as loan was not known to him and the defendant's wife is a
relative through his wife and the payment of money for the loan
obtained for the motor cycle was also not known to him and the
payment of full loan amount was also not known to him. When D.W.1
and D.W.2-witnesses have stated in their evidences that the plaintiff
was asking more interest, the defendant has not proved the same by
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S.A(MD)No.213 of 2017
producing appropriate oral or documentary evidence. It is not
established by the defendant that she has taken steps to give police
complaint, if the said interest demanded was more for settling the
amount. As the defendant has not taken any prudent steps to prove
the case with substantiating evidence, the trial Court as well as the
first Appellate Court has rightly arrived at a conclusion that the
defendant is liable to pay a sum of Rs.1,35,833/- along with future
interest on Rs.1,00,000/- from the date of plaint till the date of
realization from the assest (L) Jeyachandran.
15. Section 65-B of the Indian Evidence Act reads as follows:-
"65B. Admissibility of electronic records. ––
(1) Notwithstanding anything contained in this Act, any
information contained in an electronic record which is printed
on a paper, stored, recorded or copied in optical or magnetic
media produced by a computer (hereinafter referred to as the
computer output) shall be deemed to be also a document, if
the conditions mentioned in this section are satisfied in
relation to the information and computer in question and shall
be admissible in any proceedings, without further proof or
production of the original, as evidence or any contents of the
original or of any fact stated therein of which direct evidence
would be admissible."
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S.A(MD)No.213 of 2017
16. In this case, the plaintiff has produced Ex.A.3, which is only a
day book ledger and not an electronic record. That being the case, the
questions of law raised are not acceptable and the defendant has not
proved her case. The substantial questions of law are ordered
accordingly in favour of the plaintiff and against the defendant.
17. In fine, this Second Appeal is dismissed. No costs. The
Judgments and decrees passed in O.S.No.215 of 2008 by the
Subordinate Court, Tuticorin and in A.S.No.4 of 2014, by the Principal
District Court, Tuticorin, are confirmed. Consequently, connected
Miscellaneous Petition is closed.
23.12.2021
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.213 of 2017
To
1.The Principal District Court,
Tuticorin.
2.The Subordinate Court, Tuticorin.
3.The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
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S.A(MD)No.213 of 2017
V.BHAVANI SUBBAROYAN, J.
ps
Judgment made in
S.A(MD)No.213 of 2017
23.12.2021
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