Madras High Court
Rajangam vs V.Santha on 16 July, 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 16.07.2021
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.1509 of 2008
&
M.P.No.1 of 2008
Rajangam ...Appellant
Vs.
V.Santha ...Respondent
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure against the Judgment and Decree dated 29.07.2008 passed in
A.S.No.63 of 2007 on the file of the Principal District Court,
Cuddalore reversing the Judgement and Decree dated 04.09.2007
passed in O.S.No.24 of 2004 before the Subordinate Court, Panruti.
For Appellant : Mrs.R.Meenal
For Respondent : No Appearance
https://www.mhc.tn.gov.in/judis/
JUDGMENT
The defendant is the appellant before this Court challenging the
Judgement and Decree of the learned Principal District Judge,
Cuddalore in A.S.No.63 of 2007 in and by which the learned Judge has
reversed the Judgement and Decree of the Subordinate Judge, Panruti
in O.S.No.24 of 2004. The brief facts which has led to the filing of the
above Second Appeal are as follows.
2. The respondent herein had filed the suit O.S.No.24 of 2004 on
the file of the Subordinate Court, Panruti seeking recovery of a sum of
Rs.1,27,000/- together with interest of a sum of Rs.1,00,000/- from the
date of suit till date of decree. The claim of the respondent as pleaded
in the plaint is that on 21.01.2001 the appellant had executed a
promissory note in favour of the respondent, the appellant had
undertaken to repay on demand a sum of Rs.1,00,000/- together with
interest at Rs.1/- per Rs.100/- either to the respondent or to her
authorised agent. The promissory note was executed at Keezhakuppam
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village, Panruti Taluk.
3.It is the further case of the respondent that despite demanding
repayment of loan both in person and through representatives the
appellant had not come forward to repay the amounts. The respondent
would further pleaded that the appellant was not entitled to the benefits
of Act 8/73 and was an agriculturalist and therefore interest is sought
for at 9%. Since the payment was not made the respondent had come
forward with the above suit.
4.The appellant had contested the above claim inter alia
contending that he has not borrowed any sum from the respondent. On
the contrary, he had recommended a loan to one of his friends Rajaram
Reddiar from the respondent's husband. While giving a loan to the said
Rajaram, the respondent's husband had obtained a signature in the
blank paper and the blank paper has now been fabricated into the suit
promissory note and this fact came to be known to the appellant only
after he had received notice dated 09.06.2003 from the respondent.
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5.In fact the appellant had sent a detailed response denying the
borrowal. The specific case of the appellant is that the promissory note
is not supported by consideration.
6.Before the learned Subordinate Judge, Panruti the respondent
had examined herself as P.W.1, one Govindaraju the attestor as P.W.2
and Ramalingam, the scribe as P.W.3 and she had marked Ex.A.1 to
ExA.4. The appellant had examined himself as D.W.1.
7.The learned Subordinate Judge, Panruti taking into
consideration the fact that the passing of consideration had not been
proved due to the contradictions in the evidence of the plaintiff /
respondent as P.W.1 regarding the reasons for the borrowal had
ultimately dismissed the suit. The learned Subordinate Judge, Panruti
had come to the conclusion on the basis of two circumstances:
(a)There was contradictions regarding the purpose for which the
borrowal is made.
https://www.mhc.tn.gov.in/judis/
(b)The respondent has not been able to prove the passing of
consideration as onus of proof had shifted to the respondent.
8.Aggrieved by this Judgement and Decree, the respondent had
filed A.S.No.63 of 2007 on the file of the Principal District Judge,
Cuddalore. The learned Judge allowed the appeal and consequently
decreed the suit. Challenging this Judgement and Decree the appellant
is before this Court.
9.Mrs.Meenal, appearing on behalf of the appellant would submit
that the defense of the appellant was that though the suit promissory
note has been executed by them as a security the same was for the
borrowal of another person and further the sum of Rs.1,00,000/- has
never been paid by the respondent to the appellant.
10.She would submit that the reasons for the borrowal are
pleaded differently at each stage. In the pre-suit notice, the purpose is
for discharging the debt incurred for the marriage of the appellant's
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daughter and for other family purposes. The plaint is silent in this
regard and in the chief examination the plaintiff would reiterate what
was stated in the pre suit notice marked as Ex.A.3. However, in the
cross examination, the plaintiff would submit that the borrowal was for
meeting the expenses of marriage. The learned Appellate Judge has
brushed aside this very vital difference by stating that this discrepancy
is trivial. A reading of the Judgement of the Principal District Judge,
Cuddalore would show that the learned Judge has failed to see that
there is contradiction in the evidence of P.W.1 regarding the purpose of
borrowal and the evidence of P.W.2 and P.W.3.
11.That apart, according to the learned counsel for the appellant
there is no proof to show the passing of consideration of huge sum of
Rs.1,00,000/- by the respondent to the appellant in a suit on a
promissory note based on the Negotiable Instruments Act. Once the
passing of consideration is questioned, it is the duty of the plaintiff /
respondent herein to prove the passing of consideration. This,
according to the appellant has not been discharged and therefore the
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Second Appeal has to be allowed and the decree of the Trial Court
confirmed.
12.The above Second Appeal has been admitted on the following
Substantial Questions of Law:
“i.Whether in law the lower Appellate Court was right in holding
that the appellant had not rebutted the presumption under Section 118
of the Negotiable Instruments Act?
(ii) Whether in law the lower Appellate Court was not wrong in
failing to see that the suit pronote was not suppressed [sic]
“supported” by consideration?”
13. The respondent though served has not chosen to enter
appearance either in person or through counsel therefore the Court has
proceeded to hear the appellant and pass orders.
14.The respondent / plaintiff has contended that the appellant
had borrowed a sum of Rs.1,00,000/- from her to settle the debt
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incurred by him for the marriage of his daughter and to meet certain
family expenses. This is the stand taken by the respondent in the pre
suit notice and the chief examination. However, the plaint is silent
about this. Ex.A.1 promissory note would also indicate that the
borrowal was to settle the debts that had arisen on account of the
daughter of the appellant herein. Therefore, a reading of these
documents would indicate that the marriage has already been
conducted. However, in her cross examination P.W.1 would state that
the borrowal was for the purpose of meeting the marriage expenses of
the appellant's daughter. In fact P.W.1 would in her cross examination
depose that the borrowal was made 2 / 3 months prior to the wedding.
Therefore, here the respondent would take a stand that the borrowal
was prior to the wedding.
15. Therefore, from a conjoint reading of the evidence, it is the
case of the respondent on one hand that the borrowal was to settle the
debts that had been incurred by the appellant in connection with his
daughter's marriage in the other breath the respondent would submit
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that the borrowal was to meet the expenses of the marriage.
16.The Appellate Court has failed to appreciate this glaring
discrepancy which assumes significance since the respondent is a
relative of the appellant who is very much aware about the wedding of
the appellant's daughter. That apart, the appellant who has
acknowledged their signature in Ex.A.1 promissory note has raised a
defense that no consideration has been passed under the agreement.
17.Analysing the purpose put forward by the respondent /
plaintiff for which the loan is taken would also be necessary for
considering if consideration has passed. A perusal of the evidence both
oral and documentary would show that the respondent has not
independently proved that the appellant had received a sum of
Rs.1,00,000/- from them. The amount involved is a huge sum and
there is no documents to show the wherewithal of the respondent
except for a stray statement of the respondent that her mother owned
lands. Such a feeble assertion does not discharge the respondent's onus
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of proving the passing of consideration.
18.P.W.2 would in the affidavit, filed in lieu of chief examination
contend that promissory note was signed after receiving the money.
However, it is not stated as to where the money had been given to the
appellant. Further, in the plaint the specific case of the respondent is
that the promissory note was written at Keezhakuppam Village.
However in the evidence of P.W.2 and P.W.3 they would state that the
promissory note was executed at Kadampuliyur Village.
19.Therefore, the passing of consideration is shrouded in
suspicion. In fact, none of the witnesses have deposed as to where the
sum of Rs.1,00,000/- had been handed over and whether the same had
been handed over. Once the plaintiff / respondent fails to discharge
this onus the suit automatically fails. A reading of the Judgement of
the Appellate Court shows that there is special pleadings in favour of
the respondent.
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20.Be that as it may, considering the fact that the respondent has
not been able to prove the passing of consideration and also since there
are contradictions in the evidence of P.W.1 herself the Judgement of
the lower Appellate Court has to be set aside.
21. Therefore, the Substantial Question of law Nos.1 and 2 are
answered in favour of the appellant. The Second Appeal is allowed.
The Judgement and Decree of the learned Principal District Judge,
Cuddalore in A.S.No.63 of 2007 is set aside and the Judgement of the
learned Subordinate Judge, Panruti in O.S.No.24 of 2004 is confirmed.
Consequently, connected Miscellaneous Petition is also closed. No
costs.
16.07.2021
Index : Yes/No
Internet : Yes/No
kan
To
1.The Principal District Judge, Cuddalore.
2.The Subordinate Judge, Panruti.
https://www.mhc.tn.gov.in/judis/
P.T. ASHA, J,
kan
S.A.No.1509 of 2008
16.07.2021
https://www.mhc.tn.gov.in/judis/
