Madras High Court
N.Subramani vs R.Venkatesan on 25 January, 2021
S.A. No. 705 of 2020, dt.25.01.2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 25.01.2021
CORAM
THE HONOURABLE MR. JUSTICE KRISHNAN RAMASAMY
S.A.No.227 of 2018
and
Cmp.No.5809 of 2018
1.N.Subramani
2.S.Narendran ... Appellants
Versus
R.Venkatesan ... Respondent
The Second Appeal is filed under Section 100 of Civil Procedure
Code, to set aside the Judgment and Decree dated 31.08.2016 made in
A.S.No.29 of 2014 on the file of the learned Subordinate Judge, Vellore by
confirming the Judgment and Decree dated 27.03.2014 made in O.S.No.56 of
2009 on the file of the Additional District Munsif Court, Vellore.
For Appellants : Mr.P.Paramasiva Doss
For Respondent : Mr.P.Seshadri
1/12
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S.A. No. 705 of 2020, dt.25.01.2021
JUDGMENT
The second appeal has been filed challenging Judgment and Decree
dated 31.08.2016 made in A.S.No.29 of 2014 on the file of the learned
Subordinate Judge, Vellore by confirming the Judgment and Decree dated
27.03.2014 made in O.S.No.56 of 2009 on the file of the Additional District
Munsif Court, Vellore.
2. The appellants have been filed this second appeal by suggesting
the following substantial questions of law:-
“a) Whether both the Courts have failed to take note
about the natural presumption which arises pursuant to the
issuance of cheque as against the Plaintiff?
b) Whether a natural presumption of fact could be
contradicated and assailed by a relatively testimony of facts,
which establishes no proof of evidences of the alleged receipt
or the intend payment?
c) Whether a payment relating to a same transaction
for a sum of Rs.25,000/- by a cheque and Rs.43,650/- from the
Plaintiff's wife can be restricted to a claim Rs.25,000/- as
payable and such restrictions would draw an inconsistency of
a facts?
d) Whether a partial ingrain of cross-examination can
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S.A. No. 705 of 2020, dt.25.01.2021
be construed to be establishing the debts as against the
defendant?
e) Whether the above transaction was contractual one
or that it non-contractual one? In the event of it was a non-
contractual one, whether a non-contractual transaction can be
decreed without any substantiating materials?”
3. The respondent herein is the plaintiff in the suit. The plaintiff
filed the suit for recovery of Rs.41,967/- along with principal and interest due
on a cheque dated 29.03.2006, which was executed by the
defendants/petitioners herein in favour of the plaintiff/respondent herein for a
sum of Rs.25,000/- payable with interest at the rate of 24% per annum and
costs.
4. According to the plaintiff/respondent, the amount was paid by
way of cheque to the petitioners/defendants to lay pipelines, however, the
learned counsel for the appellants stated that the said amount was paid
towards settlement of Air Ticket arrangements made by the plaintiff. There
was a quarrel with the respondent/plaintiff's wife, and on her instigation, only
the plaintiff filed the suit against the defendants. There was no proof with
regard to making a demand for the arrangements of Air Ticket for the
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S.A. No. 705 of 2020, dt.25.01.2021
respondent herein. However, he submitted that the cheque was made only for
the purpose of arranging Air Ticket alone. The appellants and respondent are
relatives since his childhood. All these facts were not considered by both the
Courts below and passed the Judgment. Hence, he prays to set aside the
Judgment passed by both the Courts below.
5. At this juncture, it would be appropriate to extract the relevant
portion of the paragraph Nos.9 and 10 in the order passed by the Trial Court
hereunder:-
“9.Now, it is to be decided that whether defendant
is entitled to pay the cheque amount to the plaintiff and for
what purpose the cheque was issued by the plaintiff. For that
instant this Court was to look into the case of defendant. The
defendant put forth his case that for going to Soudi Arabia
he helped the plaintiff by giving Rs.25,000/- for air ticket
and he did not receive any amount from for pipes from the
plaintiff. The issuance of cheque was admitted by the
defendants 1 and 2 and the same is also evidence through
A1.also. Now the plaintiff had proved his initial burden and
the issuance of cheque has been admitted, now it is for the
defendant to prove his case. The plaintiff proved his case
that the cheque amount was given for laying pipe lines and
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S.A. No. 705 of 2020, dt.25.01.2021
no work was done by the defendant with this amount and the
DW.1 also admitted that during the arrival of pipes he
received money from PW.2/plaintiff's wife and had given for
pipes and travel expenses.
10.DW.1 also admitted that he had arranged for
pipes to one Anandan also and the evidence of DW.1 itself is
enough that he arranged for pipes and the amount was
received from Plaintiff's wife. No piece of evidence produced
by the defendant by proving his case that the amount was
given to plaintiff for air ticket. The 1st defendant in his
written statement had arranged that there were many
transaction between the plaintiff, 1st defendant and
Kurinjiselvam, but no piece of records produced to show
their transaction, but on the other hand during cross
examination he had deposed that only between 1st defendant
and Kurinjiselvam there is many transaction and not
between plaintiff and so he himself proved that except this
suit amount no other transaction was made between the
plaintiff and 1st defendant. The friend of both plaintiff and
2nd defendant was examined as DW.2, he had deposed that
he used to give money to plaintiff and 1st defendant and he
never gets back and his evidence was supporting DW.1, but
the way he deposed itself shows that he support DW.1 and
not plaintiff. The claim made by the plaintiff is not denied by
the defendant by means fo documentary evidence and the
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S.A. No. 705 of 2020, dt.25.01.2021
plaintiff is entitled for the money claim but on the other hand
he had put a case that during the laying of water connection
in plaintiff's house, there was dispute between defendant's
wife, then member of Panchayat regarding Rs.500/- and
only on instigation of wife, plaintiff filed this suit and this
also doesn't supported by any evidence.”
6. A perusal of the Judgment and Decree of the Trial Court, it would
show that the first appellant has made arrangements for laying pipeline by
one Anandan and he deposed the same in his examination. The said aspect
was taken into consideration by the Courts below, while passing the
Judgments. That apart, the Trial Court has concluded that DW.1 has not
produced any evidence to show that cheque was issued for the arrangement
made towards Air Ticket to the plaintiff. Therefore, the Trial Court has
rightly concluded that the plaintiff has proved his case and the said amount
was paid by way of Cheque, not for the purpose of Air-Ticket. The appeal
filed was also dismissed by the first appellate Court. Aggrieved by the said
Judgment and Decree passed by the First Appellant Court, confirming the
Trial Court Judgment, the appellants herein preferred the present Second
Appeal.
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S.A. No. 705 of 2020, dt.25.01.2021
7. The First Appellate Court after analysing the documents and other
exhibits filed before the Court below and judgment and decree of the Trial
Court has confirmed the judgment and decree passed by the Trial Court. The
relevant portion of the Judgment in paragraph No.8 in A.S.No.29 of 2014
passed by the First Appellate Court is extracted hereunder:-
“8.The case of the plaintiff is that 1st defendant is the
distant relation and also a friend of the plaintiff. The plaintiff
has requested the 1st defendant to lay the pipeline underneath to
the channel to the plaintiff's Nanja land having extent of 1.25
acres. The 1st defendant received a cheque which has send by
the plaintiff from Saudi Arabia, which has been encashed in the
name of the 2nd defendant, who is having account in his name
at Union Bank, Pallikonda in the month of February 2006. the
cheque amount was encashed on 29.03.2006. The plaintiff who
was examined as PW.1, has stated that the amount which has
been transacted through the cheque to the 1st defendant for the
purpose of laying of pipeline to the plaintiff's land. The
defendants counsel in his arguments advanced that the amount
has been given by the plaintiff to the 1st defendant that the 1st
defendant has arranged Air ticket to the plaintiff for which the
1st defendant has given Rs.25,000/- to the plaintiff.
According to the evidence of the DW2, the DW.2
stated in his cross-examination: “ehd; thjpf;F gzk;
cjtp bra;Js;nsdh vd;why; bra;Js;nsd;/ ve;j
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S.A. No. 705 of 2020, dt.25.01.2021
tUl';fspy; mtUf;F gzk; cjtp bra;Js;nsdh
vd;why; bra;Js;nsd;/ mtUf;F gzk; cjtp
bra;Js;nsd; 1984 Kjy; ,d;W gzk; cjtp
bra;J tUfpnwd;/ filrpahf vg;nghJ thjpf;F
gzk; cjtpbra;njd; vd;why; 3 khjj;jpw;F Kd;g[
U:/100-- bfhLj;njd;/ bfhLj;jij ehd; Fwpj;J
itj;Js;nsdh vd;why; ,y;iy/ ,Jtiu bkhj;jk;
bjhif vt;tst[ thjp vdf;F bfhLf;fntz;Lk;
vd;why; brhy;y ,ayhJ/ Rg;gpukzp ve;j njjpapy;
thjpf;F vt;tst[ gzk; bfhLj;jhuh vd;w tptuk;
bjhpa[kh vd;why; vdf;F bjhpahJ/”
On perusal of the evidence on the defendant side, the
defendant has not proved his version which has been stick on
the pleadings of the written statement. So the defendant has not
proved his case that he has arranged the above said amount for
making arrangement of Air ticket to the plaintiff. So, no piece
of evidence have been supported to the version of the
defendant. The plaintiff issued a cheque in favour of the 2 nd
defendant which has been encashed by the 1st defendant which
has been admitted by the defendant side. The trial court also
concluded that plaintiff has issued a cheque in favour of the
defendant has received Rs.43,950/- for laying pipe lines to the
plaintiff's land. So, the cheque amount which has been
encashed by the defendants is different from the amount which
the PW.1 issued to the 1st defendant. So, the trial Court has
rightly appreciated the evidence of the both sides and conclude
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S.A. No. 705 of 2020, dt.25.01.2021
to decree the suit. So, this Court concude that there is no
interference with the findings of the trial court in concluding
the suit has decreed. So, the appellants have not established
their version according to the averments of the written
statement. Hence, appellants have no merits in this appeal. I
decide this point accordingly.”
8. A perusal of the Judgment of the Appellate Court, would show
that the first appellate Court has thoroughly analysed the exhibits in Ex.A1 to
A4 and depositions of DW1 & DW2 in a proper perspective. The appellants
herein has issued the cheque for a sum of Rs.43,650/- borrowed from the
plaintiff's wife and the same was restricted only to the extent of Rs.25,000/-
for the recovery in the suit.
9. The Judgments of both the Appellate Court as well as the Trial
Court are well reasoned judgment, which does not warrant any interference
of this Court, as both the Courts have appreciated the evidence in a detailed
manner. Therefore, this Court does not find any perversity in the Judgments
of the Courts below as contended by the learned counsel for the appellants.
This Court is unable to find any ground to substantiate the appellants
contention to establish the alleged failure of the Courts below to consider the
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S.A. No. 705 of 2020, dt.25.01.2021
oral and documentary evidence in a proper perspective. Thus, the judgments
of the Courts below are not vitiated as contended by the appellants.
10. In view of the same, this Court does not find any of the
substantial questions of law that arise for consideration, as suggested by the
learned counsel for the appellants in the appeal. Hence, it deserves to be
dismissed.
11. Accordingly, by confirming the Judgment and Decree dated
31.08.2016 made in A.S.No.29 of 2014 on the file of the learned Subordinate
Judge, Vellore confirming the Judgment and Decree dated 27.03.2014 made
in O.S.No.56 of 2009 on the file of the Additional District Munsif Court,
Vellore, the Second Appeal is dismissed. No costs. Consequently, the
connected miscellaneous petition is closed.
25.01.2021
Index : Yes/No
Internet : Yes/No
Speaking Order / Non Speaking Order
klt
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S.A. No. 705 of 2020, dt.25.01.2021
To
1. The Subordinate Judge, Vellore.
2. The Additional District Munsif Court, Vellore.
3. The Section Officer, VR Section, High Court, Madras.
https://www.mhc.tn.gov.in/judis/
S.A. No. 705 of 2020, dt.25.01.2021
KRISHNAN RAMASAMY.J.,
klt
S.A.No.227 of 2018
and
Cmp.No.5809 of 2018
25.01.2021
https://www.mhc.tn.gov.in/judis/
