Madras High Court
Parvathy vs Kumaravel on 18 January, 2021
SA.No.1188 of 2008
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 18.01.2021
CORAM
THE HONOURABLE MR. JUSTICE T.RAVINDRAN
S.A.No.1188 of 2008
Parvathy ... Appellant
Vs.
Kumaravel ... Respondent
Prayer: The second appeal has been filed under Section 100 of C.P.C.
against the judgment and decree dated 22.06.2007 passed in A.S.No.157 of
2006 on the file of the Principal Sub-Court, Virudhachalam, confirming the
judgment and decree dated 12.09.2006 passed in O.S.No.211 of 2006 on the
file of the Principal District Munsif Court, Virudhachalam.
For Appellant : Mr.T.Saikrishanan
for M/s.Sai, Bharath
Respondent : Mr.R.Sunil Kumar
1/13
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SA.No.1188 of 2008
JUDGMENT
Challenge in this second appeal is made to the Judgment and decree
dated 22.06.2007 passed in A.S.No.157 of 2006 on the file of the Principal
Subordinate Court, Virudhachalam, confirming the judgment and decree
dated 12.09.2006 passed in O.S.No.211 of 2006 on the file of the Principal
District Munsif Court, Virudhachalam.
2.The defendant in O.S.No.211 of 2006 is the appellant in this second
appeal.
3.For the sake of convenience, the parties are referred to as per their
rankings in the trial Court.
4.Suit for recovery of money.
5.Briefly stated, according to the plaintiff, the defendant borrowed a
sum of Rs.75,000/- from him on 12.08.2005 and in evidence thereof,
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SA.No.1188 of 2008
executed a promissory note in favour of the plaintiff agreeing to repay a
borrowed sum with interest as recited in the promissory note. Subsequent
thereto, despite repeated demands and the issuance of the legal notice, the
defendant has failed to repay the borrowed sum with interest to the plaintiff
as promised by her and hence, according to the plaintiff, the suit has been
laid by him against the defendant.
6.The defendant resisted the plaintiff's suit contending that she has
not borrowed a sum of Rs.75,000/- from the plaintiff on 12.08.2005 and
executed a promissory note in favour of the plaintiff as put forth in the
plaint. According to the defendant, the plaintiff is running a money lending
business and the defendant approached the plaintiff through M.Ramasamy
Gounder in need of money to meet her urgent needs and accordingly,
received a sum of Rs.40,000/- from the plaintiff on 24.08.2003 and agreed
to repay the borrowed sum with interest and thereafter, the defendant had
discharged the abovesaid borrowed sum with interest on 16.08.2005 and the
plaintiff has recorded the abovesaid borrowal in the kutchayat note book
maintained by him containing the signature of the defendant and however,
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SA.No.1188 of 2008
to make unlawful gain, the plaintiff has fabricated the suit promissory note
by making use of the defendant's signature available in the kutchayat note
book and in respect of the legal notice issued by the plaintiff, she issued a
suitable reply and therefore, according to the defendant, the promissory note
dated 12.08.2005 is a rank forgery document and the defendant is not liable
to pay any sum to the plaintiff and therefore, the suit is liable to be
dismissed.
7.In support of the plaintiff's case, PWs1 & 2 were examined and
Exs.A1 to A4 were marked. On the side of the defendant, DW1 was
examined and no document has been marked.
8.On an appreciation of the oral and documentary evidence adduced
by the respective parties and the submissions put forth by them, the Courts
below were pleased to decree the suit in favour of the plaintiff. Impugning
the judgment and decree of the Courts below, the present second appeal has
been preferred by the defendant.
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SA.No.1188 of 2008
9.The suit has been laid by the plaintiff on the basis of the promissory
note. According to the plaintiff, the defendant borrowed a sum of
Rs.75,000/- on 12.08.2005 and in evidence thereof, executed the suit
promissory note in favour of the plaintiff promising to repay the borrowed
sum with interest as recited in the suit promissory note and according to the
plaintiff, thereafter, despite several demands and the issuance of the legal
notice, the defendant has not repaid the borrowed sum as promised by her
and hence, the need for the suit. The suit promissory note has been marked
as Ex.A1, the legal notice has been marked as Ex.A2, the acknowledgment
card received from the defendant has been marked as Ex.A3 and the reply
notice sent by the defendant has been marked as Ex.A4.
10.The plea has been taken by the defendant that she had not
borrowed a sum of Rs.75,000/- from the plaintiff on 12.08.2005 and
executed Ex.A1 promissory note as alleged in the plaint and on the other
hand, according to the defendant, she had only borrowed a sum of
Rs.40,000/- from the plaintiff on 24.08.2003 and subsequent thereto,
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SA.No.1188 of 2008
discharged the abovesaid borrowed sum and thus, according to the
defendant, the plaintiff has fabricated the suit promissory note Ex.A1 by
making use of the defendant's signature available in the Kutchayat Note
Book maintained by him evidencing the earlier money transaction between
the plaintiff and the defendant and therefore, the suit is liable to be
dismissed.
11.In the light of the abovesaid factors, as rightly held by the Courts
below, the burden is upon the plaintiff to establish that the defendant had
borrowed a sum of Rs.75,000/- from the plaintiff and executed the suit
promissory note in favour of the plaintiff promising to repay the borrowed
sum with interest as recited in the suit promissory note. To establish the
abovesaid case of the plaintiff, the plaintiff has examined himself as PW1
and one of the attestors in the suit promissory note viz., Kandasamy has
been examined as PW2. Both PWs1 & 2 have clearly deposed that the
defendant has borrowed a sum of Rs.75,000/- from the plaintiff and
thereafter, executed the promissory note in favour of the plaintiff. Despite
the cross- examination, as rightly held by the Courts below, nothing has
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SA.No.1188 of 2008
been culled out from them by the defendant to disbelieve their abovesaid
version and the evidence of PWs1& 2 seems natural, cogent and
convincing. Merely because, PW2 is the tenant under the plaintiff, it cannot
be held that he is deposing falsely in favour of the plaintiff and as rightly
held by the Courts below, the defendant has not pleaded any enmity with
PW2 and as rightly contended by the plaintiff's counsel, only known person
would be asked to subscribe as a witness to a document and in such
circumstances, the obtainment of PW2's signature as an attestor in the suit
promissory note by the plaintiff, as such, cannot be held to be unacceptable.
More so, when the evidence of PW2 is found to be appealing and
trustworthy, the Courts below are found to be justified in upholding the case
of the plaintiff based on the evidence of PW2 as well as the evidence of the
plaintiff examined as PW1.
12.The main defence put forth by the defendant is that she borrowed a
sum of Rs.40,000/- from the plaintiff on 24.08.2003 and subsequently, had
discharged the said borrowed sum. The abovesaid defence version projected
by the defendant has been disputed by the plaintiff and no material has been
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SA.No.1188 of 2008
placed by the defendant to evidence that she had borrowed a sum of
Rs.40,000/- from the plaintiff on 24.08.2003 in the presence of one
Mr.M.Ramasamy Gounder and subsequent thereto, had discharged the said
borrowed sum. With reference to the abovesaid defence version, not a scrap
of paper has been filed by the defendant to substantiate the same. It is not
the case of the defendant that the abovesaid borrowal had been made based
on the promissory note. The defendant would only claim that in respect of
the abovesaid borrowal, the plaintiff had been maintaining the Kutchayat
Note Book, in which, the defendant's signature had been secured. However,
pointing to the abovesaid version put forth by the defendant, no material
worth acceptance has been placed by the defendant.
13.Therefore, the contention of the defendant that by making use of
her signature found in the socalled Kutchayat Note book said to be
maintained by the plaintiff in evidence of the earlier borrowal on
24.08.2003, Ex.A1 promissory note had been fabricated by the plaintiff, as
such, cannot be countenanced in any manner sans any proof or material
pointing to the same. From the materials available on record, it is found that
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SA.No.1188 of 2008
the defendant had even gone to the extent of denying her signatures in the
suit documents. Therefore, the Courts below have rightly come to the
conclusion that the defendant has come forward with the predetermination
that she should dispute all the signatures shown to her in the witness box,
accordingly, it is found that she had chosen to dispute even the admitted
signatures found in the suit documents as well as the signature contained in
Ex.A1. However, as held by the Courts below, when with reference to the
borrowal of the suit sum and the execution of Ex.A1 promissory note, the
plaintiff has established his case through the evidence of PWs1 & 2 in an
acceptable manner and as rightly concluded by the Courts below, the
presumption of under Section 118 of the Negotiable Instrument Act would
come into operation and it is for the defendant to rebut the same and
establish that the suit promissory note Ex.A1 is devoid of consideration and
that, she has not executed the suit promissory note in evidence of the
borrowal of a sum of Rs.75,000/- on 12.08.2005 as put forth by the plaintiff.
14.If, according to the defendant, the suit promissory note had not
been executed by her and the same does not contain her signature, as rightly
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concluded by the Courts below, nothing prevented the defendant from
subjecting the signature available in Ex.A1 for analysis by an expert. The
contention put forth by the defendant's counsel that it is only the plaintiff,
who has to establish the case and therefore, the plaintiff only should take
steps to subject the comparison of the signature contained in Ex.A1 by an
expert. However, when the plaintiff has projected and proved his case
through the evidence of PWs1 & 2 and thereby, the presumption having
shifted on the shoulder of the defendant, the defendant has to adduce
evidence to prove that she had not borrowed the sum of Rs.75,000/- and
executed Ex.A1 Promissory note on 12.08.2005. When with reference to the
same, there is no material put forth on the part of the defendant, the
conclusion of the Courts below that the suit promissory note is a genuine
one and the borrowal of the suit sum from the plaintiff by the defendant is to
be accepted, cannot be dislodged in any manner. No doubt, the Courts
below had endeavored to compare the signature of the defendant with that
of the signature of the defendant found in the Vakalat and the written
statement. Though the abovesaid practice is unacceptable, however, the
Courts below had chosen to venture into the abovesaid exercise, only after
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SA.No.1188 of 2008
upholding the evidence of PWs1 & 2 with regard to the genuineness of the
suit promissory note Ex.A1.
15.In the light of the abovesaid discussions, it is found that the Courts
below, on an appreciation of the materials placed on record, both oral and
documentary and considering the position of law with reference to the same,
had rightly upheld by the plaintiff's case and granted the decree in favour of
the plaintiff.
16.In support of his contentions, defendant's counsel relied upon the
decisions reported in (2008) 4 Supreme Court Cases 530 (Thiruvengadam
Pillai Vs. Navaneethammal and another) and 2017 SCC Online Mad
34812 (Kannamma Vs.P.Sagunthala). The principles of law outlined in
the abovesaid decisions are taken into consideration and followed as
applicable to the facts and circumstances of the case at hand.
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SA.No.1188 of 2008
For the reasons aforestated, no substantial question of law is found to
be involved in the second appeal. In conclusion, the second appeal is found
to be devoid of merits and accordingly, the same is dismissed with costs.
Consequently, connected miscellaneous petition, if any, is closed.
Index : Yes/No 18.01.2021
Internet:Yes/No
sms
Copy to
1.The Principal Sub-Court, Virudhachalam.
2.The Principal District Munsif Court, Virudhachalam.
3.V.R.Section, High Court, Madras.
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SA.No.1188 of 2008
T. RAVINDRAN, J.
sms
S.A.No.1188 of 2008
18.01.2021
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