Venkataraman vs Alagu
2021 Latest Caselaw 11565 Mad

                                                                          S.A.(MD)No.1025 of 2011

                         BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                DATED: 14.06.2021

                                                        CORAM:

                             THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN

                                              S.A.(MD)No.1025 of 2011

                   Venkataraman                                                ... Appellant
                                                        -Vs-


                   Alagu                                                       ...Respondent


                   PRAYER: Second Appeal is filed under Section 100 of the Civil Procedure
                   Code, against the Judgment and Decree dated 20.07.2011 in A.S.No.3 of
                   2011 on the file of the Principal District Judge, Dindigul reversing the
                   Judgment and Decree, dated 06.12.2010 in O.S.No.298 of 2004 on the file
                   of the Additional Subordinate Judge, Dindigul.


                                        For Appellant     : Mr.C.Jeyaprakash

                                        For Respondent : Mr.A.Hariharan


                                                    JUDGMENT

The plaintiff in O.S.No.298 of 2004 on the file of the Additional

Subordinate Judge, Dindigul is the appellant in this second appeal. The suit

was filed for recovering a sum of Rs.1,35,640/- from the defendant-Alagu.

It was filed on the strength of Ex.A1 pro-note dated 10.09.2003. The

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S.A.(MD)No.1025 of 2011

plaintiff examined himself as P.W.1. The attestors and the scribe of the pro-

note were examined as P.W.2 to P.W.4. Ex.A.1 pro-note was marked. The

defendant examined himself as D.W.1 and two other witnesses as D.W.2

and D.W.3. Ex.B.1 to Ex.B.11 were marked.

2.After considering the evidence on either side, the learned trial

Judge by Judgment and Decree dated 06.12.2010 decreed the suit and

directed the defendant to pay a sum of Rs.1,35,640/- together with interest

at the rate of 6% p.a., on the principal sum of Rs.1,20,000/- from the date of

claim till the date of payment. Aggrieved by the same, the defendant filed

A.S.No.3 of 2011 before the Principal District Judge, Dindigul. By

Judgment and Decree dated 20.07.2011, the appeal was allowed and the

decision of the trial Court was set aside. Challenging the same, the plaintiff

filed this second appeal.

3.The second appeal was admitted on the following substantial

questions of law:-

“i)Whether the lower appellate Court is right in dismissing

the suit when there is a statutory presumption available under

Section 118 of the Negotiable Instruments Act especially when the

defendant has admitted the signature in the promissory note?

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S.A.(MD)No.1025 of 2011

(ii)Whether the learned District Judge was right and justified

in law in reversing the decree passed by the trial Court without

dislodging the reason given by the trial Court and acting on the oral

testimony of DW3 alone in regard to suit promissory note which is

contrary to Section 92 of Evidence Act?

(iii)Whether the first appellate Court is justified in not

following the well settled principle that once the signature is

admitted, onus shifts to defendant to disprove the contents of the

instrument as contemplated under Section 118 of the Negotiable

Instruments Act?

(iv)Whether Ex.B.11 can be taken as substantive piece of

evidence, since the appellant is not a party to that proceeding?”

4.The learned counsel appearing for the appellant submitted that the

defendant had not denied the signature found in Ex.A.1. Therefore, the

presumption under Section 118 of the Negotiable Instruments Act would

automatically get attracted. The learned counsel would contend that the

first appellate Court had chosen to reverse the decision of the trial Court by

taking into account Ex.B.11. Ex.B.11 is the deposition of D.W.3 in another

proceeding. The appellant is not a party to the said proceeding. According

to the learned counsel, the said Ex.B.11 is inadmissible in evidence. In this https://www.mhc.tn.gov.in/judis/

S.A.(MD)No.1025 of 2011

regard, he placed reliance on the decision reported in 2010 (2) MWN

(Civil) 636 [Kumaravel Vs. Naina Mohammed]. He called upon this Court

to answer all the substantial questions of law in favour of the appellant and

restore the Judgment and Decree passed by the trial Court.

5.Per contra, learned counsel appearing for the respondent submitted

that the Judgment passed by the first appellate Court is a well considered

one and that it does not call for any interference. He called upon this Court

to dismiss this second appeal.

6.I carefully considered the rival contentions and went through the

evidence on record.

7.The second appeal arises out of a money suit. It was laid on the

strength of Ex.A.1 pro-note. There is no dispute that the signature

attributed to the defendant in Ex.A.1 is that of the defendant. Therefore,

the presumption under Section 118 of the Negotiable Instruments Act can

be straightaway invoked. The said presumption however is a rebuttable

one. The only question is whether the defendant had rebutted the same on a

balance of probabilities. In the case on hand, the defendant in his written

statement had taken a specific plea that he had monetary transaction only https://www.mhc.tn.gov.in/judis/

S.A.(MD)No.1025 of 2011

with Kamatchi, the father-in-law of the plaintiff. It was specifically pleaded

that at the time of taking the loan, Kamatchi had taken the signatures of the

defendant in quite a few conquer sheets. The defendant had further stated

that those blank signed papers had been misused and suits had been filed on

that basis. The father-in-law of the plaintiff, namely, Kamatchi filed

O.S.No.333 of 2004 on the file of the Principal Sub Court, Dindigul. The

plaintiff's mother-in-law (Bagavathi) filed O.S.Nos.75 of 2005 and 335 of

2004. Based on the remaining document, the instant suit namely, O.S.No.

298 of 2004 was filed through the plaintiff. The specific stand of the

defendant is that he had no transaction whatsoever with the plaintiff

(Venkataraman) and that the transaction was only with Kamatchi, the father-

in-law of the plaintiff.

8.The defendant took the risk of examining the plaintiff's mother-in-

law (Bagavathi) as D.W.3. Only through Bagavathi, Ex.B.1 was marked.

Interestingly, the plaintiff did not choose to cross examine Bagavathi.

Of course, at the time of marking Ex.B1 an objection was raised. Ex.B1 is

the testimony of DW.3 rendered in another civil proceeding to which the

appellant herein was not a party. Therefore, as rightly contended by the

learned counsel appearing for the appellant, Ex.B1 is inadmissible in view

of Section 33 of the Indian Evidence Act. I answer the fourth substantial

question of law in favour of the appellant.

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S.A.(MD)No.1025 of 2011

9.But eschewing Ex.B1 from consideration may not still help the

appellant to restore the trial court's decision. It is seen that the defendant

had marked Exs.B.2, B.3 and B.4, which are the promissory notes executed

in favour of Kamatchi and Bagavathi. They are the in-laws of the

plaintiff/appellant. The relationship between them is admitted. A mere look

at Ex.A.1 pro-note and Exs.B.2, B.3 and B.4 would show that all the four

have been attested by the very same witnesses and prepared by the very

same scribe (Vanchimuthu).

10.The defence of the defendant is that he had transaction only with

Kamatchi and that at the time of taking loan, his signature was taken in four

blank papers. It is seen that as many as four suits were filed on the strength

of four documents; one was filed in the name of the father-in-law, two filed

in the name of mother-in-law and the present suit in the name of the

plaintiff. It is seen that all the witnesses are from the same village, to which

the plaintiff's father-in-law belongs. In the additional written statement, the

defendant had taken a further plea that the plaintiff does not even belong to

Natham Taluk and that he hails from Dindigul Taluk. Therefore, I have no

hesitation to hold that the defendant had rebutted the presumption raised

against him on a balance of probabilities. The first and third substantial

questions of law are answered accordingly.

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S.A.(MD)No.1025 of 2011

11.The first appellate Court had correctly appreciated the evidence on

record and non-suited the plaintiff by reversing the decision of the trial

Court. The first appellate court has given convincing reasons in support of

its conclusion that the defendant had rebutted the statutory presumption

raised against him. This is a case in which the defence was that the signed

blank pro-note given while taking another loan has been misused.

Therefore, the question of invoking Section 92 of the Indian Evidence Act

will not arise at all. The second substantial question of law is answered

against the appellant. The second appeal is dismissed. No costs.

14.06.2021 Internet : Yes/No Index : Yes/No skm

To

1.The Principal District Judge, Dindigul.

2.The Additional Subordinate Judge, Dindigul.

3.The Record Keeper, V.R.Section, Madurai Bench of Madras High Court, Madurai.

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S.A.(MD)No.1025 of 2011

G.R.SWAMINATHAN, J.

skm

Judgment made in S.A.(MD)No.1025 of 2011

14.06.2021

https://www.mhc.tn.gov.in/judis/