Madras High Court
V.Chandrasekaran vs R.Nagarajan on 3 February, 2021
S.A.No.1243 of 2008
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 03.02.2021
CORAM
THE HONOURABLE MR.JUSTICE T.RAVINDRAN
S.A.No.1243 of 2008
V.Chandrasekaran ... Appellant
Vs.
R.Nagarajan ... Respondent
Prayer: The second appeal has been filed under Section 100 of Civil
Procedure Code against the Judgment and decree dated 19.09.2007 passed in
A.S.No.726 of 2006 on the file of the III Additional Judge, City Civil Court,
reversing the judgment and decree dated 05.07.2006 passed in O.S.No.377 of
2003 on the file of the II Assistant Judge, City Civil Court, Chennai.
For Appellant : Mr.A.Mohammed Ismail
for Mr.Veera Kathiravan
For Respondent : Mr.P.Balamurali
JUDGMENT
Challenge in this second appeal is made to the Judgment and decree
dated 19.09.2007 passed in A.S.No.726 of 2006 on the file of the III
Additional Judge, City Civil Court, reversing the judgment and decree dated
05.07.2006 passed in O.S.No.377 of 2003 on the file of the II Assistant Judge,
City Civil Court, Chennai.
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S.A.No.1243 of 2008
2.For the sake of convenience, the parties are referred to as per their
rankings in the trial Court.
3.The plaintiff in O.S.No.377 of 2002 is the appellant in this second
appeal.
4.Suit for recovery of money.
5.The case of the plaintiff, in brief, is that the defendant, who is well
known to him, approached him for a hand loan of Rs.1,75,000/- to meet his
family expenses and the plaintiff advanced the abovesaid sum to the defendant
on 24.03.2002 and the defendant promised to repay the amount at the rate of
24% either on demand by the plaintiff or to his order. Further, the defendant
had issued a cheque on 15.04.2002 vide cheque No.128981 drawn on
Syndicate Bank, Fort St.George, Chennai - 9 in favour of the plaintiff in
evidence of the abovesaid borrowal. The plaintiff presented the abovesaid
cheque for collection and the same was returned for the reason of insufficient
funds. The plaintiff issued the legal notice under Section 138 of the Negotiable
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Instrument Act to the defendant and on receipt of the same, the defendant sent
a reply containing false allegations. The defendant has admitted the money
transactions but would state that the said transactions are earlier one. The
plaintiff has levied the criminal action against the defendant in C.C.No.2309 of
2002 on the file of the VII Metropolitan Magistrate Court, George Town,
Chennai. The defendant has not complied with the promise made by him at the
time of borrowal and failed to repay the borrowed sum, despite the several
demands made by the plaintiff. Hence, according to the plaintiff, he has been
necessitated to lay the suit against the defendant for appropriate relief.
6.The defendant resisted the plaintiff's suit contending that the plaintiff
has levied the suit based on the fabricated cheque alleging that the defendant
had borrowed a sum of Rs.1,75,000/- as hand loan on 24.03.2002. The
plaintiff had misused the cheque, which had been given as a security for the
earlier transactions and the defendant has not issued the cheque in evidence of
borrowal of Rs.1,75,000/- on 24.03.2002 as put forth by the plaintiff. The
defendant issued a proper reply to the legal notice sent by the plaintiff. The
plaintiff had written a letter dated 10.02.2002 to the defendant alleging that the
defendant had received a sum of Rs.1,20,000/- and executed a promissory note
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S.A.No.1243 of 2008
and demanded repayment of the said loan with interest. In such circumstances,
there is no necessity or circumstances to receive the loan, particularly,
thereafter on 24.03.2002. The duty is cast upon the plaintiff to establish that
the cheque had been issued by the defendant for settling the existing liability
and the criminal case levied by the plaintiff is also pending. Meanwhile, the
present suit has been laid by the plaintiff to harass the defendant one way or
the other. Hence, the plaintiff's suit is liable to be dismissed.
7.In support of the plaintiff's case, PW1 was examined and Exs.A1 to A3
were marked. On the side of the defendant, DW1 was examined and Exs.B1 to
B10 were marked.
8.On a consideration of the oral and documentary evidence adduced by
the respective parties and the submissions made, the trial Court was pleaded to
decree the suit in favour of the plaintiff as prayed for. On appeal preferred by
the defendant, the first appellate Court, on an appreciation of the materials
placed on record and the submissions made by the respective parties, was
pleased to set aside the judgment and decree of the trial Court and by way of
allowing the appeal preferred by the defendant, resultantly, dismissed the suit
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S.A.No.1243 of 2008
preferred by the plaintiff. Impugning the judgment and decree of the first
appellate Court, the present second appeal has been laid by the plaintiff.
9.At the time of admission of the second appeal, the following
substantial questions of law were formulated for consideration:
"1.Whether the First Appellate Court is correct
in allowing the appeal when the appellant /respondent
has admitted his signature in the cheque?
2.Whether the First Appellate Court is correct in
allowing the appeal without considering the evidentiary
value of Ex.B2, Ex.B3, Ex.B4 and Ex.B5?
3.Whether the Appellate Court has allowed the
appeal and reversed the judgment of the Trial Court
without considering the legal requirements under
Section 138 of Negotiable Instrument Act?"
10.Considering the materials placed on record, the case of the plaintiff is
that the defendant had handed over the cheque in question in evidence of
borrowal of a sum of Rs.1,75,000/- on 24.03.2002 as hand loan. The same is
controverted by the defendant and the defendant would contend that in respect
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S.A.No.1243 of 2008
of the earlier money transactions, the abovesaid cheque had been issued as
security and the plaintiff had misused the abovesaid cheque and laid the
present suit by putting forth the false allegation, as if the defendant had
borrowed the suit amount and promised to repay the same with interest.
Considering the documentary evidence placed on record, particularly, Exs.B2
to B5, which are the promissory notes executed by the defendant in favour of
the plaintiff in connection with the earlier borrowals, when it is seen that the
plaintiff is usually in the habit of securing the promissory note for the loan
advanced by him, resultantly, the case of the plaintiff that he had lent a huge
sum of Rs.1,75,000/- on 24.03.2002, merely on the basis of the cheque said to
have been issued by the defendant, as such, cannot be readily countenanced.
The cheque in question is found to be dated 15.04.2002 much later after
borrowal of the suit amount on 24.03.2002. Furthermore, as could be seen from
the notice issued by the plaintiff to the defendant on 10.02.2002 marked as
Ex.B1, it has been clearly recited therein that the defendant had borrowed a
sum of Rs.1,20,000/- from the plaintiff and demanded the said amount with
interest. The abovesaid notice would only reveal the contention of the
defendant that the plaintiff would lend the money only on the basis of the
promissory note and not on the basis of the cheque. As rightly concluded by
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S.A.No.1243 of 2008
the first appellate Court, if really, the plaintiff had advanced the sum of
Rs.1,75,000/- to the defendant on 24.03.2002, nothing prevented the plaintiff
from securing the promissory note from the defendant qua the suit amount.
When particularly the plaintiff, as above noted, had been obtaining the
promissory note from the defendant for the money transactions on the earlier
occasions to say that for the present transaction, the plaintiff has not obtained
the promissory note, as such, cannot be accepted rightly and for obtaining the
cheque only to the loan in question, no plausible explanation is also
forthcoming on the part of the plaintiff.
11.In addition to that, the plaintiff has also not established his solvency
to pay the suit sum to the defendant on 24.03.2002. The income tax returns of
the plaintiff marked as Ex.B6 would go to disclose that nothing has been
mentioned about the lending of Rs.1,75,000/- by the plaintiff to the defendant
on 24.03.2002. The plaintiff examined as PW1 during the course of cross
examination would state that he had received the suit sum from his wife and
advanced the sum to the defendant on 24.03.2002. However, the Pass Book of
the plaintiff exhibited in the matter do not lend support to the abovesaid
version of the plaintiff. Further, the plaintiff also admitted that he does not
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know from which account of his wife he had withdrawn the suit sum.
Therefore, the first appellate Court has considered the abovesaid factors in
detail and reached the conclusion that the plaintiff has miserably failed to
establish that he was having the sufficient amount in his hand on 24.03.2002
for lending a sum of Rs.1,75,000/- to the defendant as put forth by him.
12.No doubt, in the criminal case levied by the plaintiff against the
defendant, the defendant has been found to be guilty under Section 138 of the
Negotiable Instrument Act by the trial Court. However, the conviction and
sentence imposed on the defendant by the trial Court had been set aside by the
appellate Court by its judgment and decree dated 29.06.2007 and the same has
not been controverted by the plaintiff's counsel during the course of arguments.
13.In the light of the abovesaid factors, the contention of the defendant
that the plaintiff has misused the cheque given a security on the earlier
occasion in connection with the earlier borrowals received by him from the
plaintiff cannot be easily brushed aside and in such view of the matter, when as
above pointed out, the plaintiff has not established his solvency for lending the
huge sum of Rs.1,75,000/- on 24.03.2002 and also the plaintiff has not given
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S.A.No.1243 of 2008
plausible explanation as to why he had not secured the promissory note for
lending the alleged sum and when the plaintiff has also not established the
lending of the suit sum to the defendant on 24.03.2002, as such, other than
marking the cheque in question as Ex.A1, the appellate Court is found to be
justified in disbelieving the plaintiff's case and thereby, rejecting the plaintiff's
suit by allowing the appeal preferred by the defendant.
14.The reasonings and conclusions of the first appellate Court for non
suiting the plaintiff are found to be based on the proper and correct
appreciation of the materials placed on record, both oral and documentary and
the submissions put forth by the respective parties and I do not find any valid
reason to interfere with the same.
15.In such view of the matter, in my considered opinion, no substantial
question of law is involved in this second appeal. Be that as it may, the
substantial questions of law formulated in this second appeal are accordingly,
answered against the plaintiff and in favour of the defendant.
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16.In conclusion, the Judgment and decree dated 19.09.2007 passed in
A.S.No.726 of 2006 on the file of the III Additional Judge, City Civil Court,
reversing the judgment and decree dated 05.07.2006 passed in O.S.No.377 of
2003 on the file of the II Assistant Judge, City Civil Court, Chennai, is
confirmed and resultantly, the second appeal is dismissed with costs.
Consequently, connected miscellaneous petition, if any, is closed.
Index : Yes/No
Internet : Yes/No
sms 03.02.2021
To:
1.The III Additional Judge, City Civil Court, Chennai.
2.The II Assistant Judge, City Civil Court, Chennai.
3.The Section Officer, V.R.Section, High Court, Madras.
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S.A.No.1243 of 2008
T.RAVINDRAN,J.
sms
S.A.No.1243 of 2008
03.02.2021
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