Madras High Court
Vasantha vs Iyyappan on 14 June, 2021
S.A(MD).No.784 of 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 14.06.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A(MD).No.784 of 2014
1.Vasantha
W/o.Mathias
2.Prasanth
S/o.Mathias
3.Pradeese
S/o.Mathias
4.Anu
D/o.Mathias ...Appellants
Vs
Iyyappan
S/o.Arumugam Pillai ...Respondent
Prayer : Second Appeal filed under Section 100 of the Code of Civil
Procedure, to set aside the judgment and decree passed in A.S.No.87 of
2012 dated 22.08.2013, on the file of the First Additional Subordinate
Court, Nagarcoil, Camp at Padmanabhapuram and which was reversed the
judgment and degree passed in O.S.No.69 of 2011 dated 22.12.2011, on the
file of the learned Principal District Munsif-Cum-Judicial Magistrate Court,
Eraniel.
1/9
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S.A(MD).No.784 of 2014
For Appellants : Mr.K.Vamanan
For Respondent : Mr.T.Arul
JUDGEMENT
The defendants in O.S.No.69 of 2011 on the file of the learned
Principal District Munsif-Cum-Judicial Magistrate Court, Eraniel are the
appellants in the second appeal.
2.The said suit was instituted by one Iyyappan. The case of the
plaintiff was that on 08.09.2008, the husband of the first appellant namely
Mathias borrowed a sum of Rs.1,40,000/- and executed Ex.A1/Pro-Note. He
returned a sum of Rs.1,00,000/- on 25.01.2009 and the endorsement was
also made on Ex.A1. Mathias passed away on 08.12.2009 and there upon,
the plaintiff issued legal notice dated 08.02.2010 to the defendants and the
defendants sent reply notice dated 16.02.2010, denying the notice
averments. Thereafter, the aforesaid suit for recovery of money came to be
filed.
3.The defendants filed their written statement denying the suit claim.
It was also contented that the said Mathias never borrowed any money from
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S.A(MD).No.784 of 2014
the plaintiff and that Ex.A1 has been fabricated. The plaintiff examined
himself as P.W.1 and the attestor, namely, Suresh was examined as P.W.2
and Exs.A1 to A7 were marked. Pradeese/D3 examined himself as D.W.1
and no document was marked on the side of defendants. After considering
the evidence on record, the trial Court, by judgement and decree dated
24.12.2011 dismissed the suit. Questioning the same, the plaintiff filed
A.S.No.7 of 12 before the First Additional Sub Court, Nagarcoil, Camp at
Padmanabhapuram. By judgement and decree dated 22.08.2013, the appeal
was allowed, the decision of the trial Court was set aside and the suit was
decreed. Challenging the same, this second appeal came to be filed. It was
admitted on the following substantial questions of Law:-
''1.whether first Appellate Court was right in construing
Ex.A.1 as promissory note in the light of the evidence of P.W.2
and decreeing the suit?
2.Whether Ex.A.1 suffers from vice of material
alteration?''
4.The learned counsel for the appellant submitted that the Appellate
Court ought not to have decreed the suit by reversing the well considered
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S.A(MD).No.784 of 2014
decision of the trial Court. He would further point out that in the written
statement, the genuineness of Ex.A1 has been specifically impeached.
Therefore, the burden fell entirely on the plaintiff to prove Ex.A1. Ex.A1
indicates that the borrowal was for urgent family purposes, but a reading of
the evidence of P.W.2/Suresh would show that there were some other
transactions between the plaintiff and Mathias. According to the learned
counsel for the appellants, Ex.A1 cannot be considered as promissory note
at all. The learned counsel for the appellants called upon the Court to
answer the substantial questions of law in favour of the appellants and to
restore the decision of the trial Court.
5.Per contra, the learned counsel for the respondent submitted that the
first Appellate Court correctly appreciated the evidence on record and
decreed the suit and the said judgement and decree do not call for any
interference.
6.I carefully considered the rival contentions and went through the
evidence on record. Section 4 of Negotiable Instrument Act 1881, defines
promissory note in the following terms:-
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S.A(MD).No.784 of 2014
“Promissory note”- A “promissory note” is an instrument
in writing (not being a bank-note or a currency-note) containing
an unconditional undertaking, signed by a maker, to pay a certain
sum of money only to, or to the order of, a certain person, or to
the bearer of the instrument.”
A mere look at Ex.A1 would show that it contains an unconditional
undertaking to pay a sum of Rs.1,40,000/- to the plaintiff on demand. I
therefore come to the conclusion that Ex.A1 was rightly treated as
promissory note by the first Appellate Court. I answer the first substantial
question of law against the appellants.
7.The said document on a careful perusal does not indicate any
material alteration. ExA1 was originally executed for a sum of Rs.
1,40,000/-. The endorsement made on Ex.A1 shows that on 25.01.2009 a
sum of Rs.1,00,000/- was received from Mathias by the plaintiff Iyyappan.
P.W.2/Suresh had signed as attestor on both the occasions, that is, when the
original borrowing took place and again when, a portion of the amount was
returned. Therefore, the second substantial question of law is also answered
against the appellants.
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S.A(MD).No.784 of 2014
8. The appellants in their written statement had taken the plea, that
Ex.A1 is a fabricated document. In view of such denial by the defendants,
the initial burden squarely lay on the plaintiff. The plaintiff discharged the
same by examining the attestor. Thereafter, the defendants ought to have
discharged the onus, after it was shifted to them. The defendants could have
produced the admitted signature of Mathias that was contemporaneous. If
the defendants had done so, the plaintiff would have sought forensic
opinion. The defendants did not produce any such material.
9.I come to the conclusion that the evidence produced by the plaintiff
stood unrebutted. In a case of this nature, when the executor had passed
away, the plaintiff can only be expected to examine himself and the attestor
of the document. The document was written on a stamp paper. The stamp
paper was purchased only in the name of T.Mathias. The name of the stamp
vendor is also mentioned. The defendants could have examined the stamp
vendor. In these circumstances, the first Appellate Court was justified in
reversing the decision of the trial Court and decreeing the suit as prayed for.
Of course, the first Appellate Court rightly held that the appellants will not
be personally liable or responsible for satisfying the decree. Their liability is
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S.A(MD).No.784 of 2014
limited to the extent of the inheritance from the deceased Mathias. If the
appellants have not inherited any property from the Mathias, then obviously,
the decree cannot be executed against the appellants personally. The
impugned judgment and decree passed by the first appellate Court do not
call for any interference.
10.Though I have answered the second question of law against the
appellants, I am of the view that the plaintiff is entitled to interest only @
6% per annum from the date of plaint till the date of realization. The
Impugned judgment and decree are modified to this limited extent.
Accordingly, the second appeal is partly allowed. No Costs.
14.06.2021
tta
Index: Yes/ No
Internet: Yes/No
Speaking Order/Non-speaking Order
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S.A(MD).No.784 of 2014
To
1.The First Additional Subordinate Judge, Nagarcoil, Camp at
Padmanabhapuram.
2.The Principal District Munsif-Cum-Judicial Magistrate, Eraniel.
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S.A(MD).No.784 of 2014
G.R.SWAMINATHAN,J.,
tta
S.A(MD).No.784 of 2014
14.06.2021
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