Madras High Court
A.Sundaram vs J.N.Sethu on 6 July, 2021
S.A.No.841 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 06.07.2021
CORAM
THE HON'BLE MR.JUSTICE C.SARAVANAN
S.A.No.841 of 2012
and
M.P.No.2 of 2012
(Through Video Conferencing)
A.Sundaram ... Appellant
Vs.
J.N.Sethu ... Respondent
Second Appeal filed under Section 100 of C.P.C., to set aside the
judgment and decree dated 29.11.2005 in A.S.No.60 of 2005 on the file
of the Principal District Judge, Erode District at Erode in confirming the
judgment and decree dated 23.02.2004 made in O.S.No.254 of 2001 on
the file of the Sub-Ordinate Judge, Bhavani.
For Appellant : Mr.N.Damodaran
For Respondent : Mr.T.Murugamanickam
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Page No 1 of 10
S.A.No.841 of 2012
JUDGMENT
This case was admitted on 06.09.2012 in presence of the learned
counsel for the respondent after notice of admission was ordered. In this
appeal, the following substantial questions of law was framed on
06.09.2012 for being answered:-
''Whether the Courts below rendered a perverse
finding holding the suit promissory notes to be
supported by consideration without even
considering the evidence of DW2 in this regard''.
2.The unsuccessful defendant is the appellant in this second
appeal. The respondent herein had filed O.S.No.254 of 2001 before the
Sub-Court, Bhavani. The suit was filed by the respondent to recover a
sum of Rs.2,31,850/- from the appellant on the strength of four
promissory notes Exs.A1 to A4 each for a sum of Rs.50,000/- two
promissory notes dated 18.06.2000 and others two dated 01.07.2000. The
above suit was later re-numbered as O.S.No.1 of 2003 after it was
transferred to Fast Track Court, Bhavani (Fast Court).
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S.A.No.841 of 2012
3.Before the Trial Court following issues were framed:-
i) Whether the suit promissory notes are true and valid?
ii) Whether the plaintiff is entitled for the amount as claimed?
iii) To what relief, the plaintiff is entitled to?
4. The Trial Court decreed the suit vide its judgment and decree
dated 23.02.2004. The Appellate court dismissed the appeal filed by the
appellant herein vide impugned judgment and decree dated 29.11.2005 in
A.S.No.60 of 2005.
5. The appellant denied his liability in the written statement. The
learned counsel for the appellant submits that the appellant had executed
inchoate promissory notes vide Exs.A1 to A4 in favour of one
K.Sampathkumar for certain money transaction. He submits that though
the loan was discharged, the said K.Sampathkumar did not return the
inchoate promissory notes to the appellant. It was stated that the above
four inchoate promissory notes were misplaced. The appellant further
submitted that the said Sampathkumar colluded with the respondent to
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Page No 3 of 10
S.A.No.841 of 2012
mark it seem as if the appellant had executed Exs.A1 to A4 in favour of
the respondent. Therefore, the respondent misused the above promissory
notes.
6. It is submitted that the respondent filled up/altered the blanks in
Exs.A1 to A4 promissory notes with a mala-fide intention.
7. On perusing the Judgment and decree passed by the Trial Court
and that of the Appellate Court, what is discernible is that the appellant
and the respondent have known each other since 1995 and a ''sale
agreement'' in Ex.B1 dated 12.6.1995 was executed by the appellant in
favour of the respondent to sell a property.
8. The case of the respondent before the Trial Court was that the
appellant borrowed a sum of Rs.1,00,000/- on 18.6.2000 and on
01.07.2000 totaling to Rs.2,00,000/- but failed to pay the amount on
demand. The appellant has admitted to execution of four demand
promissory notes – Exs.A1 to A4.
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Page No 4 of 10
S.A.No.841 of 2012
9. Before the Trial Court, the appellant stated that Exs.A1 to A4
– promissory notes were given to one Sampath Kumar in blank for
certain liability in a chit transaction between them and that these
promissory notes were not returned to the appellant eventhough the
appellant had discharged the liability he owed to the said Sampath
Kumar.
10. It was further the case of the appellant that the respondent has
misused Exs.A1 to A4 promissory notes with a malafide intention in
collusion with the said Sampath Kumar.
11. The evidence of the respondent who examined himself as
P.W.1 also confirms execution of Ex.B1. In his evidence, the respondent
had deposed that the appellant had borrowed the aforesaid sum of
Rs.2,00,000/- from the respondent to settle property with his brother and
agreed to sell the property to the respondent.
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Page No 5 of 10
S.A.No.841 of 2012
12. The evidence of P.W.2 also confirms the execution of Ex.B1-
Sale Agreement dated 12.06.1995. He has also stated that he affixed his
signature as a witness in Ex.B1 – Sale Agreement dated 12.06.1995.
13. P.W.2 has also stated that he had filled up the details given by
the respondent on the respective dates in Exs.A1 to A4 and had given
photo copies of these demand promissory notes to the appellant.
However, there are no records to substantiate that photo copies of Exs.A1
to A4 were given to the appellant.
14. Ex.A5 legal notice was issued on 29.05.2001 by the
respondent to the appellant. It called upon the appellant to pay the
amount and thereafter Ex.A.7 – notice dated 05.06.2001 was sent to the
appellant enclosing xerox copies of Exs.A1 to A4.
15. The evidence of P.W.2 indicates that execution of Ex.B.1 dated
12.06.1995 Sale agreement coincided with loan and execution of Ex.A1
– 4 promissory note 18.06.2000 and on 01.07.2000. Thus, there is an
apparent difference in the evidence of respondent as PW1 and PW2.
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S.A.No.841 of 2012
16. However, under Section 118 of the Negotiable Instruments Act,
1881, there is a presumption. It is however a rebuttable presumption.
The appellant has not discharged the burden of proof cast on him under
the Negotiable Instruments Act, 1881 to distance from the liability cost
on him.
17. Further under Section 20 of the Negotiable Instruments Act,
1881, when a person signs and delivers to another a paper stamped in
accordance with the law relating to negotiable instruments and either
wholly blank or having written thereon an incomplete negotiable
instrument, he thereby prima facie gives authority to the holder thereof to
make or complete, as the case may be, upon it a negotiable instrument,
for any amount specified therein and not exceeding the amount covered
by the stamp.
18. The signatory to such negotiable instrument is liable to any
holder in due course for such amount that may be filled. The only
exception provided is in the proviso to section 20 of the Negotiable
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Page No 7 of 10
S.A.No.841 of 2012
Instruments Act, 1881 is in the case of a person other than a holder in due
course. Thus, the appellant admits that the respondent was a holder in
due course.
19. The appellant has thus not discharged the burden of proof cast
upon under proviso to section 20 of the Negotiable Instruments Act,
1881.
20. Either way whether as a holder i.e. person in whose favour the
Ex. A1 to 4 were executed or as holder in due course, the respondent
was entitled to demand payment from the appellant under Ex. A1 to 4.
Further, in para 3 of the written submission, the appellant has admitted
also having borrowed money and execution of two promissory notes.
21. Therefore, there is no merits in the present appeal. There, the
questions of law raised by the appellant stand answered against the
appellant.
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Page No 8 of 10
S.A.No.841 of 2012
22. In the light of the above, this second appeal stands dismissed.
No costs. Consequently, connected miscellaneous petition is closed.
06.07.2021
jas/kkd
Internet : Yes / No
Index : Yes/No
Speaking Order/Non-speaking Order
To:
1.The Principal District Court, Erode District,
Erode.
2.The Sub-Ordinate Judge, Bhavani.
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Page No 9 of 10
S.A.No.841 of 2012
C.SARAVANAN, J.
jas/kkd
S.A.No.841 of 2012
and
M.P.No.2 of 2012
06.07.2021
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https://www.mhc.tn.gov.in/judis/
Page No 10 of 10
