Madras High Court
C.Selvam vs P.Gunabalan on 8 July, 2021
A.S.(MD)No.168 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 08.07.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
A.S.(MD)No.168 of 2020
and
C.M.P.(MD)No.6191 of 2020
C.Selvam ... Appellant / Defendant
-Vs-
P.Gunabalan ... Respondent / Plaintiff
PRAYER: Appeal Suit filed under Order 41 Rule 1 of C.P.C r/w Section
96 of the Civil Procedure Code, against the judgment and decree dated
13.02.2020 passed in O.S.No.54 of 2014 on the file of the first Additional
District Court, Thoothukudi.
For Appellant : Mr.M.Karthikeyavenkatachalapathy
For Respondent : Mr.R.Vijayakumar
JUDGMENT
The defendant in O.S.No.54 of 2014 on the file of the first Additional
District Court, Thoothukudi is the appellant herein.
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A.S.(MD)No.168 of 2020
2. Gunabalan / respondent herein filed the said suit for recovering a
sum of Rs.13,06,350/- from the appellant herein with interest. The case of
the plaintiff is that the defendant was known to him and that on 27.05.2012,
the defendant borrowed a sum of Rs.9,00,000/- from him for business
purpose. He also executed Ex.A1-promissory note in favour of the plaintiff.
The defendant did not honor his obligation in the matter of repayment. The
plaintiff therefore issued Ex.A2-suit notice dated 06.11.2014 calling upon
the defendant to clear the loan liability. Though the defendant received the
notice as evidenced by Ex.A3-acknowledgement card, neither reply was
sent nor the demand set out in the notice complied with. Therefore, the
plaintiff filed the said suit on 01.12.2014.
3. After entering appearance, the appellant herein filed written
statement controverting the plaint averments. According to the defendant,
he had financial transactions with A.S.Gopala Kannan, son of Subramanian,
of Mettur during the course of which he signed a pro-note. The said
A.S.Gopala Kannan had misused the signed pro-note and filed the present
suit through the plaintiff herein. The defendant's specific stand was that he
had no contact whatsoever with the plaintiff. The plaintiff was an utter
stranger to him. Based on the divergent pleadings, the Court below framed
the necessary issues. The plaintiff examined himself as P.W.1 and the
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A.S.(MD)No.168 of 2020
attestor of the pro-note as P.W.2. Ex.A1 to Ex.A5 were marked. The
defendant examined himself as D.W.1. Three other witnesses were marked
on his side. Ex.X1 was marked through D.W.2. After considering the
evidence on record, the Court below came to the conclusion that the
plaintiff had established the genuineness of Ex.A1-pro-note and decreed the
suit by the impugned judgment and decree dated 13.02.2020. The
defendant was directed to pay a sum of Rs.13,06,350/- with interest at the
rate of 12% on Rs.9,00,000/- from the date of plaint till the date of decree
and thereafter @ 6% per annum. Challenging the same, this appeal came to
be filed.
4. The point for determination in this appeal is whether the impugned
judgment and decree can be sustained by upholding the genuineness of
Ex.A1-pro-note. The learned counsel appearing for the appellant reiterated
all the contentions set out in the memorandum of grounds and called upon
this Court to reverse the impugned judgment and decree and allow this
appeal and dismiss the suit.
5.Per contra, the learned counsel appearing for the respondent/
plaintiff submitted that the trial Judge had correctly appreciated the
evidence on record and wanted this Court to sustain the impugned judgment
and decree.
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A.S.(MD)No.168 of 2020
6.I carefully considered the rival contentions and re-appreciated the
evidence on record.
7. The learned counsel appearing for the respondent pointed out that
the defendant failed to respond to the pre-suit notice dated 06.11.2014.
The defendant received the same on 11.11.2014. The suit came to be filed
only on 01.12.2014. If the stand of the defendant was that the plaintiff was
an utter stranger, certainly, the defendant would have responded to the suit
notice immediately. He had not done so. Though this contention of the
learned counsel appearing for the respondent is well founded, it is well
settled that failure to respond to the suit notice cannot always be fatal to the
defence of the defendant.
8.It is also true that the defendant had not examined A.S.Gopala
Kannan with whom the defendant admittedly had transaction. Yet failure to
examine A.S.Gopala Kannan is not fatal to the defence of the appellant.
It is obvious that the relationship between the defendant and A.S.Gopala
Kannan had broken down and they were antagonistic to each other. The
defendant could not have summoned him and examined him. Had he so
examined him, the witness would have definitely taken an adverse stand
and thereafter, the defendant would have to have him declared as hostile.
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A.S.(MD)No.168 of 2020
Therefore, the defendant was probably advised not to summon the said
Gopala Kannan.
9. The next question is whether the defence of the appellant can be
said to have been established on a balance of probabilities. As already
pointed out, the suit was laid on the strength of Ex.A1-pro-note. The
defendant is a permanent resident of Mettur in Salem District. The plaintiff
is a permanent resident of Thoothukudi. The categorical stand of the
defendant in the written statement is that the plaintiff is an utter stranger
and that they have not had any kind of relationship between them.
Therefore, the plaintiff ought to have adduced some kind of evidence to
show that the defendant was known to him and that is why, the plaintiff
advanced a sum of Rs.9,00,000/- even without security. In the course of
cross examination, a specific question was put to the plaintiff as to how he
made the demand for repayment. The plaintiff answered that he had met the
defendant in person and demanded repayment. Interestingly, the plaintiff
would state that he never telephonically contacted the defendant. The
plaintiff was not even aware of the mobile phone number of the defendant.
When the defendant is based in Salem District and the plaintiff is based in
Thoothukudi District, the claim that they never had any telephonic contact
or conversation through mobile phone sounds highly improbable. It must
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A.S.(MD)No.168 of 2020
be stressed that a huge sum of Rs.9,00,000/- was made without any security.
10. In the written statement, the wherewithal of the plaintiff has not
been challenged. But during the course of cross examination, several
questions had been put in this regard. The plaintiff is a retired Government
Servant. He admitted that he is an IT assessee and that he was filing his
annual returns till 01.03.2012. But after his retirement, he did not file any
return. It is well known that an IT assessee is statutorily obliged to file his
annual returns even if there is no taxable income. A sum of Rs.9,00,000/-
would definitely fall within the taxation net. Income Tax Act also
contemplates that transaction beyond a certain ceiling limit will have to be
done only through instruments. The suit transaction is not finding place in
the income tax returns of the plaintiff. During the course of cross
examination, the plaintiff further admitted that his nephew is an advocate
before the Court at Mettur. His brother is also based in Mettur.
11. From these circumstances, I hold that the defendant on a balance
of probabilities has effectively rebutted the presumption that was bound to
be raised against him under Section 118 of the Negotiable Instruments Act.
The defendant had admitted the signature in Ex.A1-pro-note. Since the
plaintiff had also examined the attestor, the Court below was justified in
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A.S.(MD)No.168 of 2020
raising presumption under Section 118 of the Negotiable Instruments Act
against the defendant. By his effective cross examination, the defendant
had rebutted the said presumption. Therefore, I have to necessarily
interfere with the finding of the trial Court that the genuineness of Ex.A1-
pro-note had been established. The plaintiff could have filed his bank
passbook to show that he was in possession of a sum of Rs.9,00,000/- for
the purpose of lending. The plaintiff would make a vague claim that he
had sold a piece of land and that is how, he was in possession of the funds.
12. But then, I cannot lose sight of the admitted case of the defendant.
The defendant admits that he had borrowed a sum of Rs.7,00,000/- from
A.S.Gopala Kannan. Though the defendant would make a claim that he
had repaid the said amount, there is absolutely no proof for having made
such repayment. If really, the defendant had made the repayment, he would
have definitely sent a communication to A.S.Gopala Kannan demanding
return of the blank pro-note signed by him.
13. The defendant is not an illiterate villager. He is a businessman.
Therefore, final installment would not have been paid without getting back
the document from the creditor. It is obvious that the plaintiff is batting for
the said A.S.Gopala Kannan. This being the admitted case of the defendant,
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A.S.(MD)No.168 of 2020
the learned counsel appearing for the appellant on instructions, informs the
Court that the impugned decree may be modified to a sum of Rs.7,00,000/-
instead of Rs.9,00,000/-. The learned counsel appearing for the appellant
also states that the appellant is agreeable to pay the cost awarded by the trial
Court.
14. Taking note of the aforesaid submission made by the counsel for
the appellant, on instructions, the impugned judgment and decree passed by
the Court below is modified. The appellant is directed to pay a sum of
Rs.7,00,000/-with interest at the rate of 12% from the date of pro-note till
the date of decree ie., 13.12.2020 and at the rate of 6% per annum on
Rs.7,00,000/- from the date of decree till the date of realization. The appeal
is partly allowed. No costs. Consequently, connected miscellaneous
petition is closed.
08.07.2021
Internet : Yes/No
Index : Yes/No
rmi
https://www.mhc.tn.gov.in/judis/
A.S.(MD)No.168 of 2020
To
1.The first Additional District Court, Thoothukudi.
2.The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis/
A.S.(MD)No.168 of 2020
G.R.SWAMINATHAN.J.,
rmi
Judgment made in
A.S.(MD)No.168 of 2020
and
C.M.P.(MD)No.6191 of 2020
08.07.2021
https://www.mhc.tn.gov.in/judis/
