Madras High Court
P.V.Karthikeyan vs P.Singaram on 2 July, 2021
A.S.(MD)No.151 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 02.07.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
A.S.(MD)No.151 of 2018
P.V.Karthikeyan ... Appellant
Vs.
P.Singaram ... Respondent
Prayer : Appeal Suit filed under Section 96 of Civil Procedure Code read with
Order 41 and 41-A of Civil Procedure Code, against the judgment and decree
dated 11.09.2015 in O.S.No.66 of 2012 on the file of the learned Principal
District Judge, Pudukkottai.
For Appellant : Mr.RM.Sivakumar
For Respondent : Mr.N.Balakrishnan
JUDGEMENT
The defendant in O.S.No.66 of 2012 on the file of the Principal District
Court, Pudukkottai is the appellant in this appeal suit. The case of the plaintiff
is that the defendant borrowed a sum of Rs.11,00,000/- from him on
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A.S.(MD)No.151 of 2018
30.04.2010 and executed the suit promissory note. The defendant had agreed
to repay the same at the rate of 12% per annum. Even though the plaintiff
made several demands, the defendant did not honour his obligation. The
plaintiff issued suit notice dated 25.06.2010. The said suit notice was returned
unserved. Therefore, the plaintiff filed O.S.No.66 of 2012 on 03.10.2012. The
defendant filed his written statement denying the plaint averments. The Court
below framed the necessary issues.
2.The plaintiff examined himself as P.W.1 and the attestors namely.,
Shanmugam and Rajendran as P.W.2 and P.W.3 and the plaintiff marked Exs.A1
to A5. The defendant examined himself as D.W.1 and marked Ex.B1.
3.The learned Trial Judge after consideration of the evidence on record
decreed the suit by the impugned judgment and decree dated 11.09.2015.
Questioning the same, this appeal suit came to be filed.
4.The point for consideration is whether the plaintiff had proved the due
execution of Ex.A1/promissory note and whether the impugned judgment and
decree is liable to be interfered with.
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A.S.(MD)No.151 of 2018
5.The learned counsel for the appellant reiterated the contentions set out
in the memorandum of grounds and called upon this Court to reverse the
impugned judgment and decree and dismiss the suit and allow this appeal suit.
6.Per contra, the learned counsel for the respondent submitted that the
impugned judgment and decree does not call for any interference.
7.I carefully considered the rival contentions and went through the
evidence on record.
8.The first contention urged by the learned counsel for the appellant is
that on 30.04.2010, he was working in his office at Kulithalai in Karur District.
The case of the plaintiff is that the borrowal took place at Thirukkokarnam at
Pudukkottai District. The distance between the two places is fairly substantial
and therefore, according to the appellant's counsel, the plaintiff's claim that on
the said date, the defendant had borrowed the said amount is not probable. In
support of his defence that he was working at Kulithalai on the said date, the
defendant marked Ex.B1 certificate issued by his immediate superior. There is
some merit in the contention of the appellant's counsel that the Court below
ought not to have casually brushed it aside on the ground that the defendant
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A.S.(MD)No.151 of 2018
could have maneuvered to obtain the same. Ex.B1 is a certificate issued by an
official and therefore, it could not have been casually characterized as false.
However, I have to reject this argument of the learned counsel for the appellant
for the simple reason that in the cross examination of P.W.1/plaintiff, the time
of borrowal had not been elicited. It is not in dispute that one can reach
Pudukkottai from Kulithalai within about two and half hour. Therefore, based
on Ex.B1, one cannot come to the conclusion that the plaintiff's version had
been shown to be improbable. If during cross examination, the plaintiff had
admitted that the transaction between the two had taken place during working
hours, then Ex.B1 could have been pressed into to service to falsify the said
claim. The cross examination of P.W.1 was not conducted on those lines.
Therefore, this contention of the appellant's counsel is bereft of any merit.
9.The second contention urged by the learned counsel for the appellant
is that there is serious discrepancy between the testimony of P.W.1 and the
attestor/P.W.3. According to P.W.1, he had handed over the amount to the
defendant in his marriage hall whereas the attestor had stated that the amount
was handed over in the house of P.W.1. In my view, there is no discrepancy
between the two testimonies. A reading of Ex.A1/promissory note shows that
the plaintiff/Singaram was residing in the marriage hall campus. In fact in the
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A.S.(MD)No.151 of 2018
plaint also the residential address of the plaintiff has been mentioned as
Sumankali Thirumana Mandapam. Therefore, when the plaintiff is residing
within the marriage hall campus, P.W.3 was perfectly right in stating that the
transaction had taken place within the plaintiff's residence. Therefore, this
contention of the appellant's counsel is also lacking in merit.
10.The learned counsel for the appellant would point out that there are
material alterations in the promissory note. In fact P.W.1 had also admitted the
same. However, the Court below had noted that the alteration is found only in
figures and not in words. Therefore not much turns on this contention also.
This is because even according to the appellant, he had signed in blank
promissory note. Section 20 of Negotiable Instruments Act gives authority to
the holder of the negotiable instrument to fill up the body of the promissory
note. There is only one restriction. The authority is given to fill up to the
extent of liability of the person who had signed the promissory note. Since the
Trial Court had correctly noted that in the body of the promissory note the
figure has been correctly mentioned, I do not find any ground to accept this
contention also.
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A.S.(MD)No.151 of 2018
11.The real issue is whether the defendant had shown on a balance of
probabilities that the plaintiff could not have advanced a sum of Rs.11,00,000/-
to him on 30.04.2010 as claimed by him.
12.Though the learned counsel for the appellant had seriously challenged
the capacity of the plaintiff to lend this amount, it has been brought out in
evidence that the plaintiff had retired as an employee of public transport
corporation only a year back and that he was possessed of sufficient funds.
There is also no dispute that the plaintiff is the owner of a marriage hall. He is
also having a tyre sales business in Trichy as evidenced by Ex.A5. Even
though these are strong circumstances in favour of the plaintiff that he had the
wherewithal to lend a sum of Rs.11,00,000/-, the plaintiff in the cross
examination had admitted that he borrowed from two or three persons as a hand
loan and gave it to the plaintiff. The plaintiff had not stated that he was very
much having the said funds with him and when the defendant asked for hand
loan, he gave the same to him. The plaintiff stated that he did not withdraw it
from his bank account. He categorically admitted that he had taken the said
amount from two or three persons ten to fifteen days prior to 30.04.2010 and
when the defendant approached him, he was able to give the amount.
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A.S.(MD)No.151 of 2018
13.The defendant is working as peon in postal department. He was
virtually in the last grade of service and his monthly salary is also not
substantial. Therefore, it is difficult to believe that a huge sum of
Rs.11,00,000/- could have been advanced to the defendant even without taking
any security. The plaintiff admits that he is an income tax assessee. However,
this transaction has not been reflected in the tax returns. Of course as rightly
pointed out by the learned counsel for the respondent that mere non-reflection
in the tax returns cannot lead the Court to come to the conclusion that the
transaction did not take place. However, that is certainly a relevant
circumstance which the Court has to take into account. A mere look at the suit
promissory note indicates that it was filled up later and it was not
contemporaneously prepared at the time of transaction. According to the
plaintiff, the transaction took place on 30.04.2010 but then he is said to have
issued notice on 25.06.2012 (Ex.A2). The said notice was returned unserved.
The stand of the plaintiff is that since the defendant is a postal employee, he
managed to get the notice returned. The suit was filed immediately thereafter.
It is improbable that for more than two years and two months, the plaintiff kept
quiet. That is another reason to doubt the case of the plaintiff. I have
to hold that on a balance of probabilities, the defendant had demonstrated that
the suit transaction as claimed by the plaintiff did not take place. Therefore, I
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A.S.(MD)No.151 of 2018
have to necessarily interfere with the judgment and decree passed by the Trial
Court and it is accordingly set aside.
14.But that cannot be the end of the matter. The defendant had admitted
that he borrowed a sum of Rs.1,00,000/- on 01.09.2007 and a further sum of
Rs.1,00,000/- on 01.09.2008. He also admitted that he had given as many as
52 unsigned cheques to the plaintiff. The defendant is only aged about
48 years as on date. He appears to have some ten more years of service. The
transactions had taken place way back in the years 2007 and 2008.
Considering the long years of service, which the defendant would be having,
the plaintiff might have been confident of recovering the same in due course,
since a government employee cannot afford to have his cheque dishonored.
15.The learned counsel for the appellant informs the Court that a sum of
Rs.2,40,000/- has been recovered from his salary so far. After getting
instructions from the client, the learned counsel for the appellant made a
statement that inclusive of the costs awarded by the Trial Court, he will pay a
further sum of Rs.7,00,000/- to the defendant. In my view this would definitely
meet the ends of justice. The judgment and decree passed by the trial Court is
set aside. This appeal is partly allowed by directing the appellant to pay a
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A.S.(MD)No.151 of 2018
further sum of Rs.7,00,000/- to the respondent/plaintiff. The time for such
payment is twelve weeks. The said amount will carry interest at the rate of
12% per annum thereafter. The plaintiff is at liberty to withdraw the amount of
Rs.2,40,000/- already recovered from the appellant's salary.
02.07.2021
Index : Yes / No
Internet : Yes/ No
ias
Note :In view of the present lock down owing to COVID-19
pandemic, a web copy of the order may be utilized for official
purposes, but, ensuring that the copy of the order that is
presented is the correct copy, shall be the responsibility of the
advocate/litigant concerned.
To:
The Principal District Court,
Pudukkottai.
Copy to:
The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
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A.S.(MD)No.151 of 2018
G.R.SWAMINATHAN, J.
ias
A.S.(MD)No.151 of 2018
02.07.2021
https://www.mhc.tn.gov.in/judis/
