Madras High Court
S.Balachandar vs N.Palanisamy on 6 January, 2021
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 06.01.2021
CORAM
THE HONOURABLE MR.JUSTICE T.RAJA
and
THE HONOURABLE MR.JUSTICE G.CHANDRASEKHARAN
A.S. No.594 of 2011
S.Balachandar ... Appellant
-vs-
N.Palanisamy ... Respondent
Prayer: Appeal Suit filed under XLI Rule 1 read with Section 96 of Civil
Procedure Code to set aside the decree and judgment dated 30.06.2011 in
O.S. No.232 of 2004 on the file of the Principal District Judge, Namakkal.
For Appellant : Mr.S.Parthasarathy,
Senior Counsel for
Mr.Dinesh
For Respondent : Mr.N.Suresh
JUDGMENT
JUDGMENT of this Court was made by T.RAJA,J.
This appeal has been directed against the impugned judgment and
decree dated 30.06.2011 decreeing the money suit against the appellant
defendant directing him to pay a sum of Rs.17,78,000/- together with
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interest at the rate of 9% per annum on the principal sum of Rs.14,00,000/-
from the date of plaint till the date of decree.
2.Mr.S.Parthasarathy, learned senior counsel appearing for the
appellant defendant, assailing the impugned judgment, pleaded that the Trial
Court has committed error in coming to the conclusion that the appellant
defendant has admitted the execution of the document and the borrowal.
Based on such erroneous conclusion, the Trial Court has completely lost
sight of the evidence of DW1, the appellant herein, who had categorically
denied the execution of 14 promissory notes on 05.07.2000 and also
borrowal of Rs.14,00,000/-.
2.1.Arguing further, learned senior counsel appearing for the
appellant submitted that when the appellant defendant has made a specific
case before the Trial Court that he has not borrowed Rs.14,00,000/- on
05.07.2000 and not even executed 14 promissory notes, the Trial Court
overlooking the facts as to what happened prior to 05.07.2000, has
completely gone against the appellant defendant. Moreover, the Trial Court
has failed to appreciate the case of the appellant, when he having borrowed
money from the respondent plaintiff on various dates, which were
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specifically mentioned in the written statement, repaid the amount. The
Trial Court, referring to Section 34 of the Evidence Act, accepting the
books of account maintained by the respondent plaintiff showing clearly
that the appellant defendant had repaid the entire money back to the
respondent plaintiff, refused to apply the above Section 34 of the Evidence
Act in favour of the appellant defendant. When it was a specific case of the
appellant defendant that he had repaid the loan substantially, which was
taken from the respondent plaintiff even before the demand made by him
and even in the cross examination, the respondent/plaintiff admitted about
the receipt of cash by his son and daughter, the Trial Court had completely
overlooked the actual facts of the case and proceeded on the presumption
that the appellant defendant had borrowed Rs.14,00,000/- on 05.07.2000.
2.2.Learned senior counsel appearing for the appellant further
submitted that in support of the stand taken by the appellant defendant,
several documents, namely Ex.B1 to Ex.B179 were marked. Though various
entries in the form of books of accounts, which were maintained in the
regular course of business and vouchers were filed to substantiate the case
of the appellant defendant, the Trial Court, without appreciating the same,
has brushed aside those documents and failed to consider any of the
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documents and held that those payments were not made in respect of such
liability. Therefore, the approach of the Trial Court was wholly erroneous.
Hence, the findings and conclusion reached by the Trial Court are liable to
be interfered with by this Court.
2.3.Concluding his argument, learned senior counsel appearing for
the appellant submitted that when the matter was taken up for admission,
this Court, while granting a conditional stay on 21.12.2011, directed the
appellant defendant to deposit Rs.14,00,000/- and granted liberty to the
respondent plaintiff to withdraw the said amount and accordingly,
Rs.14,00,000/- has been deposited and the same has also been withdrawn by
the respondent/plaintiff. Even if the case of the respondent plaintiff is
accepted that after lending the suit amount, the appellant defendant has not
paid back the entire amount to the respondent plaintiff, the appellant
defendant is liable to pay only Rs.4,55,189/-. Learned senior counsel
appearing for the appellant further pleaded that in respect of the rate of
interest, some concession may be given in the event of dismissing this
appeal.
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3.Learned counsel appearing for the respondent submitted that when
the appellant defendant is a neighbour of the respondent plaintiff and
carrying on his dairy business in the name and style of 'Vangal Dairy', the
appellant defendant had borrowed a sum of Rs.14,00,000/- from the
respondent plaintiff on 05.07.2000 for his family and business expenses and
executed 14 promissory notes in favour of the respondent plaintiff, agreeing
to repay the said amount with interest at the rate of 9% per annum either to
the respondent plaintiff or to his order. At the request of the appellant
defendant, the respondent plaintiff had granted some more time for making
payment on his convenience. Though 14 promissory notes were executed,
he evaded from making any payment. Finally, finding that there is no
response from the appellant defendant and he has been postponing the
payment on one pretext or other, the respondent plaintiff filed the above suit
in O.S. No.232 of 2004 on the file of the Principal District Judge, Namakkal
seeking a money decree with a direction to the appellant defendant to pay a
sum of Rs.17,78,000/- along with interest at the rate of 9% from the date of
suit till the date of realisation and also costs of the suit. Surprisingly, the
appellant defendant filing the written statement, denied the very borrowal of
Rs.14,00,000/- on 05.07.2000 from the respondent plaintiff. In paragraph 6
of the written statement, the appellant defendant has clearly admitted the
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fact that the respondent plaintiff has lent a sum of Rs.6,00,000/- to the
appellant defendant by getting his signature in six blank unfilled promissory
notes.
3.1.Again in paragraph 7 of the written statement, the appellant
defendant, without knowing the crucial denial made by him in paragraph 4,
has admitted the borrowal that on 07.07.1999, he has paid a sum of
Rs.14,000/- towards principal and interest and another sum of Rs.8,000/-
towards principal on 20.07.1999. Learned counsel appearing for the
respondent plaintiff, indicating the inconsistent stand taken by the appellant
defendant in the written statement, submitted that without knowing the
consequences of making denial of the case of the respondent plaintiff that
he had borrowed a sum of Rs.14,00,000/- on 05.07.2000, in para 7, he has
admitted that the appellant defendant had started making payment at the rate
of Rs.12,000/- per month from 11.10.1998 upto 08.04.1999 and after paying
a sum of Rs.22,000/- namely Rs.3,400/- towards interest + Rs.18,600/-
towards principal on 17.05.1999, the appellant defendant has paid a sum of
Rs.1,01,000/- towards principal on 27.05.1999 and Rs.1,00,100/- on
28.05.1999 towards principal. The same shows that the appellant defendant
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was unable to conceal the factum of receipt of a sum of Rs.14,00,000/- on
05.07.2000 by executing 14 promissory notes.
3.2.In this context, learned counsel appearing for the respondent
pleaded that it is very crucial and relevant to refer to the admission made by
the appellant defendant while he was standing in the witness box before the
Trial Court, admitting the execution of the 14 pro notes promising the
repayment of the suit money with interest at the rate of 9% per annum. The
execution of the pro notes were corroborated by P.W.2 writer of the pro
notes. Therefore, the Trial Court, having found that the appellant defendant
had admitted the execution of all these 14 promissory notes by appending
his signature in all these 14 promissory notes and the same was also further
corroborated by P.W.2, who is the witness as well as the writer of the
promissory note, has rightly accepted the case of the plaintiff respondent.
When the controversy raised by the Trial Court has been brought to an end
by the defendant appellant himself in his admission, the findings and
conclusion reached by the Trial Court on the basis of the admission made by
the appellant defendant do not call for any interference.
4.Heard both sides.
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5.The claim of the respondent plaintiff before the Trial Court is that
the appellant defendant, being his neighbour and doing dairy business in the
name and style of Vangal Dairy, borrowed a sum of Rs.14,00,000/- on
05.07.2000 for his family and business expenses by executing 14
Promissory Notes and agreed to re-pay the said amount with interest at the
rate of 9% per annum. Since he evaded the same on one pretext or other, the
the respondent plaintiff has filed a suit seeking a direction to the appellant
defendant to pay a sum of Rs.17,78,000/- along with interest at the rate of
9% per annum from the date of suit till the date of realisation.
6.The appellant defendant filed his written statement dated
08.03.2005 admitting the borrowal of money from the respondent plaintiff.
In para 6 he has admitted as follows:
'.. On the same day the plaintiff has lent a sum of Rs.6,00,000/-
to this defendant by getting this defendant's signature in six
blank unfilled promissory notes. The plaintiff required this
defendant to repay the principal amount in monthly instalments
with interest @ 9% on the diminishing principal. Therefore,
this defendant started to pay Rs.1,500/- per month upto
7.9.1998, while thins are so, this defendant has dug up two
bore wells in the property purchased by him. On seeing the
copious water supply, the plaintiff wanted to repurchase the
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land sold to this defendant for which this defendant was not
agreeable. Aggrieved of the same the plaintiff attempted to
close the bore wells as a coercive measure. Hence there was
village panchayat before N.K.Nallathambi, then Chairman of
the village and in the presence of one Sengodan who mediated
for the above stated sales and other villagers in which the
plaintiff realising his fault and agreed not to interfere with this
defendant's possession and enjoyment of the property sold and
further paid a sum of Rs.50,000/- as penalty towards
Karungalapalyaam Temple fund.'
7.The above admission shows that he has borrowed R.6,00,000/- by
putting his signature in six blank unfilled promissory notes. Again in
paragraph 8 of the written statement, he admits as follows:
'8.This defendant has further borrowed from the plaintiff
Rs.1,50,000/-, Rs.3,50,000/-, Rs.1,50,000/-, Rs.5,00,000/- and
Rs.8,50,000/- on 07.08.1999, 11.09.1999, 02.10.1999 and
09.10.1999 and agreed to pay interest @ 9% on the
diminishing principal. At the time of such borrowals, the
plaintiff has obtained signatures of this defendant in blank
promissory notes. Thus, the plaintiff has obtained signature of
this defendant in 14 blank promissory notes in addition to the 6
blank promissory notes signed by this defendant.'
8.A cursory reading of para 8 shows beyond anyone's doubt that the
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appellant defendant has borrowed Rs.1,50,000/-, Rs.3,50,000/-,
Rs.1,50,000/-, Rs.5,00,000/- and Rs.8,50,000/- which totally comes to
Rs.20,00,000/- and agreed to pay interest at the rate of 9% on the
diminishing principal.
9.Again in para 12 of the written statement, he fairly admitted that he
has paid Rs.17,40,659/- towards principal and Rs.5,13,391/- towards
interest against the total borrowal of Rs.20,00,000/- and on the date of filing
of the written statement on 08.03.2005, the amount due and payable was
Rs.8,64,340/-. Therefore, it is not the case of the appellant defendant that he
has paid the said amount Rs.8,64,340/-. Since admitted facts need not be
proved, it is relevant to extract Section 58 of the Evidence Act as under:
'58.Facts admitted need not be proved
No fact need be proved in any proceeding which the parties
thereto or their agents agree to admit at the hearing, or which,
before the hearing, they agree to admit by any writing under
their hands, or which by any rule of pleading in force at the
time they are deemed to have admitted by their pleading
provided that the Court may, in its discretion, require the facts
admitted to be proved otherwise then by such admissions.'
10.A bare reading of above Section 58 of the Evidence Act clearly
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shows that the facts admitted need not be proved. The consequence of one
party admitting the controversy is a legal proceeding or suit inevitably
invokes the application of Order XII Rule 6 of C.P.C. and also Order XV
Rule 1 of C.P.C. which are extracted as under:
'Order XII Rule 6
6.Judgment on admissions – (1) Where admissions of fact have
been made either in the pleading or otherwise, whether orally
or in writing, the Court may at any stage of the suit, either on
the application of any party or of its own motion and without
waiting for the determination of any other questions between
the parties, make such order or give such judgment as it may
think fit, having regard to such admissions.
Order XV Rule 1
1.Parties not at issue – Where at the first hearing of a suit it
appears that the parties are not at issue on any question of law
or of fact, the Court may at once pronounce judgment.'
11.A cursory reading of Order XII Rule 6 read with Order XV Rule 1
shows that the Court may, at any stage of the suit, either on the application
of any party or of its own motion and without waiting for the determination
of any other questions between the parties, make such order or give such
judgment as it may think fit, having regard to such admissions, where
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admissions of fact have been made either in the pleading or otherwise,
whether orally or in writing.
12.In the light of the above legal position, if we look at the case on
hand one can easily make out the point clear that when the appellant
defendant has filed his written statement admitting the case of the
respondent plaintiff that he has borrowed a total amount of Rs.20,00,000/-
and that Rs.8,64,340/- remains due and payable, the suit is capable of being
decreed on the own admission made by the appellant defendant as per above
Section 58 of the Evidence Act and Order XII Rule 6 read with Order XV
Rule 1 of the C.P.C. These provisions enable the Court to give a judgment
not only on the application of a party but also on its own motion to give
speedy justice to avoid arrears of cases pending.
13.The Apex Court, in the case of Karam Kapahi and others v. Lal
Chand Public Charitable Trust & another, (2010) 4 SCC 753, considering
the principles behind Order XII, Rule 6 of the Civil Procedure Code, ruled
that the object of Order XII, Rule 6 is to give the plaintiff a right to speedy
judgment, for the clear reason that the controversy raised before the Court is
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admitted either partly or fully. The Court seeing the admission of fact made
by the defendant by virtue of Order XV, Rule 1 read with Order XII, Rule 6
of the Civil Procedure Code shall at the first hearing of the suit pronounce
its judgment, inasmuch as when Order XII, Rule 6 vividly makes the legal
position clear that when the admission of facts is made on the pleadings or
otherwise, whether oral or in writing, the Court may at any stage of the suit
give its judgment having regard to such admission. A Division Bench of the
Madhya Pradesh High Court also in the case of Shikharchand and others v.
Bari Bai & others, AIR 1974 MP 75 has held that the plaintiff is entitled to
the relief asked for by him on the basis of defendant's own admissions, as
there would be no point in delaying the judgment unnecessarily in deciding
the controversial points in the routine manner. The legal provision of Order
XII, Rule 6 of the Code of Civil Procedure also says that where admissions
of fact have been made either on the pleadings or otherwise, any party may,
at any stage of the suit, apply to the Court for a judgment upon such
admissions.
14.Coming to the payment of interest on the borrowed loan amount is
concerned, Section 34 of C.P.C. speaks that any debtor is liable to pay
interest on the amount borrowed, hence, it is relevant to extract Section 34
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of the C.P.C.:
'34.Interest – (1)Where and in so far as a decree is for the
payment of money, the Court, may, in the decree, order interest
at such rate as the Court deems reasonable to be paid on the
principal sum adjudged, from the date of the suit to the date of
the decree, in addition to any interest adjudged on such
principal sum for any period prior to the institution of the suit,
with further interest at such rate not exceeding six per cent per
annum as the Court deems reasonable on such principal sum,
from the date of the decree to the date of payment, or to such
earlier date as the Court thinks fit ....'
15.Law makers are well aware of the fact that when a person borrows
money for business purpose and making profits, the debtor is liable to pay
reasonable rate of interest. Hence, Section 34 has been inserted in C.P.C.
Section 34 of the C.P.C. also makes the issue much easier stating that the
Court, may, in the decree, order interest at such rate as the Court deems
reasonable to be paid on the principal sum adjudged, from the date of the
suit to the date of the decree. When the appellant defendant has repeatedly
admitted that he has borrowed the aforesaid suit money on the contractual
rate of interest at 9% per annum, it is not known why the Trial Court has
over looked Section 34 while dealing with the interest portion on the
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admitted balance amount at the contractual rate of 9%.
16.Therefore, as per Section 34 of C.P.C., the appellant defendant is
liable to pay even the said amount of Rs.8,64,340/- by a mere calculation of
the contractual interest at the rate of 9% per annum, provided the appellant
was able to substantiate the payment of the balance amount of the suit
money. Ironically, there was no iota of evidence produced to prove the
same. Hence, the suit is liable to be decreed.
17.Secondly, the Trial Court also, while dealing with the evidence
made by the appellant defendant in the witness box during the Trial, has
extracted the following admission:
'This Court perused, the evidence of PW1 and 2 and DW1 and
document marked. It is seen that Ex.A1 to A14, 14 pro notes,
dated 5.7.2000 and the same was admitted by the defendant as
he executed document. D.W.1 during cross examination
admitted as, ePjpkd;wj;jpy; jhf;fy; bra;ag;gl;l 14
g[nuhnehl;Lf;fspYk; 2 ifbahg;gKk; xU nuifa[k;
vd;DilaJ jhd;/ ifbahg;gkpl;L 5/7/2000 vd;W
njjp ehd; jhd; nghl;nld; 14 g[nuhnehl;Lf;fspYk;
bjhif vd;dhy; 1 yl;rk; vd;W ,uz;L ,lj;jpYk;
vGj;jhy; U:/1 yl;rk; kl;Lk; vd;Wk; 9% vd;W ehd;
jhd; vGjpndd;/ It is seen that PW2 who is the witness as
well as who is the writer of the document stated as, DW1 put
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signature on the stamp and below the stamp. D.W.1 also put
thumb impression in all 14 pro notes. Apart from this evidence
of PW1 and 2, D.W.1 also admitted as, he executed pro note
Ex.A1 to A14 by the evidence of PW1, PW2 and DW1, it is seen
that there is no dispute about the execution of pro notes and in
the circumstances the plaintiff proved that the defendant
borrowed sum of Rs.14,00,000/- and executed the pro notes.
This Court perused the evidence of DW1 who admitted the
borrowal and execution of pro notes, but pleads discharge of
the debt and he paid all the amount and the balance is only
Rs.8,64,340/-. D.W.1 after filing his written statement
subsequently came with an amendment to amend the statement
as the balance amount due is only Rs.6 lakhs. But this Court
remains that the said amendment application was dismissed.
Hence, D.W.1 is evidence remains that the balance is only
Rs.8,64,340/-. This Court also remains that DW1, is not having
consistency in pleading discharge.'
18.When the appellant defendant has admitted in the written
statement and has also admitted before the Trial Court, which were also
further corroborated by P.W.2, who is not only a witness, but also a writer
of the Promissory note deposing that the appellant put his signature on the
stamp and below the stamp and also put his thumb impression in all 14
promissory notes, the execution of promissory notes marked as Ex.A1 to
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A14 and supported by the evidence of P.W.1, P.W2 have been
substantiated. Therefore, the Trial Court has rightly decreed the suit, which
in our considered opinion, does not call for any interference.
19.Thirdly, when the appellant defendant claimed that he has paid the
suit money by marking the documents, namely, Ex.B1 to Ex.B179 in which
cash books said to have maintained during his business transaction are
marked as B3, B8, B15, B29, B54, B62, B72, B89, B93, B104, B115, B129,
B147, B158, B161, B165, B169, B171 and B173, the Trial Court, referring
to Section 34 of the Evidence Act which says that evidentiary value of the
account books maintained in the regular course of business is not sufficient
to charge any person with liability, in the absence of corroboration, has
again rightly come to the conclusion that the cash books cannot be taken
into consideration. Moreover, since all these above entries were made in the
name of Palanisamy as interest paid to him, it has reached its conclusion
that the plaintiff is not called as 'PPK' and his name is P.N.Palanisamy and
short name can be 'PNP', whereas all the aforesaid entries indicate the
payment made to Selvaraj, Ramassamy and PPK etc. When the plaintiff
name is P.N.Palanisamy and his short name can be PNP, he cannot be called
as PPK, on this count also, the Trial Court has rightly discarded the
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unacceptable evidence showing the aforementioned payment to PPK who is
no where connected to P.N.Palanisamy the plaintiff is irrelevant to the case.
20.If it is the case of the appellant defendant that he had borrowed
from the respondent plaintiff and subsequently repaid, then there is no
difficulty on his part to get back the promissory notes on repayment of the
amount to the respondent plaintiff then and there on every repayment. The
reason being that when in his written statement, he has admitted that by
borrowing Rs.14,00,000/-, has executed 14 promissory notes on payment of
Rs.1,00,000/-, he should have collected back each promissory note, on
which, he claimed to have repaid, but the same has not been done. Further,
when he claims that he has been doing Dairy Business and has made several
re-payment, he should have made re-payment by crossed cheques or atleast
by bearer cheques. That also has not been followed. Therefore, when the
appellant defendant claims that after borrowing the amount from
Palanisamy, he has re-paid the money in the name of Selvaraj, he has not
given any explanation whatsoever as to why he has maintained the account
in the name of Palanisami Selvaraj, Ramasamy, Sampoornam, Gomathi etc.
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21.Therefore, taking into consideration all the materials on record, we
are of the view that the respondent plaintiff has rightly proved his case by
both oral and documentary evidence that the appellant defendant, after
borrowing the suit money by executing Ex.A1 to A14, miserably failed to
pay back the amount. Hence, the decree passed by the Trial Court deserves
to be confirmed.
22.When the appellant defendant has admitted that as on the date of
filing the written statement, namely, 08.03.2005, he was liable to pay the
amount on the basis of the contractual interest at the rate of 9% per annum
which has also been admitted in the written statement, this Court finds no
infirmity in the impugned judgment and decree and a direction given by the
Trial Court to pay a sum of Rs.17,78,000/- together with interest at the rate
of 9% per annum on the principal sum of Rs.14,00,000/- from the date of
plaint till the date of decree and after decree, the plaintiff is entitled to
interest at the rate of 6% per annum on the principal sum of Rs.14,00,000/-
till the date of realisation is confirmed, by virtue of Order XII Rule 6 read
with Order XV Rule 1 and Section 58 of the Evidence Act.
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23.Since the appellant defendant has not even proved the payment of
any amount with acceptable oral and documentary evidence, the appeal is
liable to be dismissed. Accordingly, the appeal is dismissed. Since the
appellant/defendant has come to this Court with unclean hands pleading that
he had repaid the loan amount against his own admission, as highlighted
above, wasted the precious time of the Court, we impose a cost of
Rs.50,000/- payable to the plaintiff/respondent along with balance amount.
24.Learned senior counsel appearing for the appellant brought to our
notice that this Court, while granting conditional order of stay on
21.12.2011, directed the appellant to deposit Rs.14,00,000/- and granted
liberty to the respondent to withdraw the said amount and accordingly, the
same has been deposited and also subsequently withdrawn by the
respondent plaintiff. Therefore, it is made clear that the respondent plaintiff
is entitled to get back the balance amount as per the decree passed by the
Trial Court. No costs.
(TRJ) (GCSJ)
06.01.2021
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Index : Yes/No
vga
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To
1.The Principal District Judge,
Namakkal.
2.The Section Officer,
V.R.Section,
High Court, Madras.
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T.RAJA, J.
and
G.CHANDRASEKHARAN,J.
vga
A.S. No.594 of 2011
06.01.2021
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