Madras High Court
K. Kamalakannan vs Elangovan on 11 January, 2021
S.A..No.1234 of 2008
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 11.01.2021
CORAM
THE HONOURABLE MR. JUSTICE T. RAVINDRAN
S.A.No. 1234 of 2008
and
M.P. No.1 of 2008
1. K. Kamalakannan
S/o. (late) Krishnamurthy
2. Sankar
S/o. Balapathirasamy ... Appellants
Vs.
Elangovan ... Respondent
Prayer: Second Appeal filed under Section 100 of the Civil Procedure
Code praying to set aside the judgment and decree dated 28.09.2007
passed by the III Additional District Judge, Pondicherry in A.S.
No.131/2006 reversing the judgment and decree dated 04.02.1997 passed
by the I Additional Subordinate Judge, Pondicherry in O.S. No.76 of
1996.
For Appellants : Mr. A. Tamilvanan
Page 1 of 12
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S.A..No.1234 of 2008
For Respondent : No appearance.
JUDGMENT
Challenge in this second appeal is made to the judgment and
decree dated 28.09.2007 passed in A.S. No.131/2006 on the file of the III
Additional District Judge, Pondicherry, reversing the judgment and
decree dated 04.02.1997 passed in O.S. No.76 of 1996 on the file of the
I Additional Subordinate Judge, Pondicherry.
2. For the sake of convenience, the parties are referred to as per
their ranking in the trial court.
3. The defendants in O.S. No.76 of 1996 are the appellants in
the Second Appeal.
4. Suit for recovery of money.
5. Briefly stated, according to the plaintiff, the defendants
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S.A..No.1234 of 2008
borrowed a sum of Rs.1,80,000/- from the plaintiff on 10.06.1992, for
their business purpose and in evidence thereof, executed a promissory
note in favour of the plaintiff on the same date agreeing to repay the
borrowed sum with interest on demand with interest at the rate of 24%
per annum. Despite several repeated demands made on the part of the
plaintiff, the defendants have not chosen to pay any sum towards the
borrowed sum and hence, the plaintiff issued a legal notice on
25.11.1992, calling upon them to pay the borrowed sum as promised and
despite the receipt of the notice, the defendants have neither paid the sum
nor responded to the legal notice. Hence, according to the plaintiff, the
suit has been laid.
6. The defendants in their written statement contended that the
first defendant's wife and mother borrowed some money from the
plaintiff's father Pandurangan in the year 1991 and towards the security
for the said loan, Pandurangna obtained the signatures of the defendants
in several blank non judicial stamp papers and in blank printed
promissory note forms and subsequently, the said Pandurangam
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S.A..No.1234 of 2008
converted one such paper into the suit promissory note and therefore,
according to the defendants, the plaintiff is not entitled to maintain the
suit as the defendants have not borrowed any sum from the plaintiff and
executed the suit promissory note as averred in the plaint. The suit
promissory note is devoid of consideration and hence, the suit is liable to
be dismissed.
7. In support of the plaintiff's case, P.Ws.1 to 3 were examined
and Exs.A1 to A6 were marked. On the side of the defendants, D.Ws. 1
to 5 were examined and Exs. B1 to B4 were marked. Exs.X1 to X7 were
also marked.
8. On an appreciation of the materials placed on record, both
oral and documentary, and the submissions put forth by the respective
parties, the trial court was pleased to dismiss the suit laid by the plaintiff
without costs.
9. On an appeal preferred by the plaintiff, the first appellate
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S.A..No.1234 of 2008
court, on an evaluation of the materials placed on record, both oral and
documentary and the submissions projected by the respective parties, was
pleased to set aside the judgment and decree and by way allowing the
appeal preferred by the plaintiff, decreed the suit in favour of the plaintiff
with costs as determined by it. Impugning the same, the present second
appeal has been preferred by the defendants.
10. In this matter, the second appeal has not been admitted.
Only notice has been ordered to the respondent/plaintiff. Despite service
of notice, the respondent/plaintiff has not entered appearance through
counsel and also not appeared in person when the matter is taken up for
consideration.
11. Considering the pleas put forth by the respective parties
and the materials placed on record, it is found that the defendants have
admitted their signatures in the Suit Promissory note marked as Ex.A2.
But, according to them, no consideration has been passed under the suit
promissory note. It is the case of the defendants that the first defendant's
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S.A..No.1234 of 2008
wife and mother borrowed some amount from the plaintiff's father
Pandurangan by way of the mortgage, and at that point of time, the
signature of the defendants were obtained in various blank stamp papers
and blank printed promissory notes and making use of the said
documents, the suit promissory note had been created. Therefore,
according to the defendants, the suit promissory note is devoid of
consideration.
12. To sustain the case of the plaintiff, the plaintiff's father /
power agent has been examined as P.W.1 and the attestor of the suit
promissory note and the scribe of the suit promissory note have been
examined as P.Ws.2 and 3. Considering the evidence of P.Ws.1 to 3 in
toto, it is seen that as pleaded by the plaintiff, the defendants on the
borrowal of a sum of Rs.1,80,000/-, had executed the suit promissory
note in favour of the plaintiff promising to repay the same with interest
as recited in the suit promissory note. As rightly held by the first
appellate court, no material has been placed by the defendants during the
course of cross examination of P.W.1 to 3 to discredit their evidence and
thereby having noted that the evidence of P.Ws.1 to 3 being natural,
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S.A..No.1234 of 2008
convincing and trust worthy, it is found that the the first appellate court
had rightly relied upon the evidence of P.Ws.1 to 3 to uphold the
plaintiff's case.
13. The contention of the defendants is that the defendants
would not have been present at the time of execution of the promissory
note as put forth by the plaintiff and according to them the defendants
were working in their respective office and therefore the case of the
plaintiff should be disbelieved. In this regard, reliance is placed on the
evidence of D.Ws.4 and 5 and the documents marked as Exs.X1 and X4.
Considering the evidence of D.Ws.4 and 5 and the documents marked as
Exs. X1 and X4, it is found that the trial court has accepted the defence
version. However, as rightly held by the first appellate court, there is
every chance of the defendants to leave the office for a short span of time
and go over to the house of P.W.1 and execute the promissory note after
receiving the consideration recited therein. Therefore, the abovesaid
reason of the first appellate court for disbelieving the defence version
projected by the defendants cannot be overturned easily.
14. The main defence of the defendants is that the suit
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S.A..No.1234 of 2008
promissory note had been concocted based on the blank signed
promissory note given by them at the time of obtaining the loan from the
plaintiff's father by way of the mortgage and according to the defendants,
they have discharged the mortgage loan. If that be so, what prevented
the defendants from retrieving the signed blank stamp papers and the
blank promissory notes said to have been handed over to the plaintiff's
father at the time of securing the mortgage loan. In the event of refusal
of the plaintiff's father to hand over the same, nothing prevented the
defendants from issuing a legal notice calling upon him to return the said
documents or lodging a police complaint against the plaintiff's father or
filing a necessary civil suit against the plaintiff's father in the manner
known to law. On the other hand, it is seen that the defendants have been
the silent spectators despite their case of the discharge of the mortgage
loan. Even with reference to the discharge of the mortgage loan, no
plausible material is forthcoming on the part of the defendants.
Therefore, the plea of the defendants that the suit promissory note had
been created making use of the signed blank promissory notes said to
have been given by them to the plaintiff's father at the time of securing
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S.A..No.1234 of 2008
the mortgage loan, as such, cannot be countenanced in any manner.
15. Considering the abovesaid factors, it is seen that the
defendants have admitted their signature in the suit promissory note. The
defendants have failed to establish their defence. As above discussed,
the plaintiff has established the execution of the suit promissory note by
the defendants on the receipt of the sum recited therein through the
evidence of P.Ws.1 to 3. In such circumstances, as rightly held by the
first appellate court, the presumption under Section 118(a) of the
Negotiable Instruments Act would come into play. Accordingly, the
defendants have to establish that the suit promissory note is devoid of
consideration. However, pointing to the same, absolutely there is no
material forthcoming on the part of the defendants. As above stated, the
defendants have not even endeavoured to repudiated the legal notice sent
by the plaintiff dated 25.11.1992 marked as Ex.A4. Further as rightly
held by the first appellate court, the plaintiff is entitled to fill up the
contents in the blank promissory note said to have been signed by the
defendants by invoking Section 20 of the Negotiable Instruments Act.
16. The first appellate court has rightly and properly assessed
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S.A..No.1234 of 2008
the materials placed on record, both orally and documentary, both on the
factual matrix as well as on the question of law and rightly come to the
conclusion that the suit promissory note has been executed by the
defendants on the receipt of the amount from the plaintiff recited therein
and as the defendants had failed to repay the same as promised, the
defendants are liable to pay the suit amount as claimed by the plaintiff.
17. In view of the above, the judgment and decree of the first
appellate court do not merit any interference. Considering the abovesaid
factors, no substantial question of law is found to be involved in the
second appeal.
18. In conclusion, the second appeal is dismissed.
Consequently, connected miscellaneous petition is closed.
11.01.2021
Index: Yes/No
Internet: Yes/No
Speaking/Non-Speaking order
bga
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S.A..No.1234 of 2008
To
1. The III Additional District Judge, Pondicherry
2. The I Additional Subordinate Judge, Pondicherry
3. The Section Officer, VR Section, High Court, Madras
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S.A..No.1234 of 2008
T. RAVINDRAN, J.
bga
S.A.No.1234 of 2008
11.01.2021
https://www.mhc.tn.gov.in/judis/
