R.Ramasamy vs P.Chinraju
2021 Latest Caselaw 12210 Mad

                                                                                 S.A.(MD)No.859 of 2010

                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                     DATED: 23.06.2021

                                                            CORAM:

                              THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN

                                                  S.A.(MD)No.859 of 2010


                   R.Ramasamy                                 ... Appellant/Respondent/Plaintiff

                                                            -Vs-


                   P.Chinraju                                .. Respondent/Appellant/Defendant


                   PRAYER: Second Appeal is filed under Section 100 of the Civil Procedure
                   Code, against the Judgment and Decree in A.S.No.7 of 2008, dated
                   29.09.2009 on the file of the learned District Judge, Karur, by reversing the
                   Judgment and Decree passed in O.S.No.23 of 2004, dated 04.11.2006 on
                   the file of the learned Sub Judge, Karur.


                                            For Appellant          : Mr.S.Madhavan
                                             For Respondent        : Mr.K.Govindarajan


                                                        JUDGMENT

The plaintiff in O.S.No.23 of 2004 on the file of the Sub Court,

Karur is the appellant in this second appeal. The appellant instituted the

said suit for recovering a sum of Rs.4,29,836/- from the respondent on the

strength of Ex.A1-pro-note dated 17.12.2000. https://www.mhc.tn.gov.in/judis/

S.A.(MD)No.859 of 2010

2.The case of the plaintiff is that the defendant borrowed a sum of

Rs.2,50,000/- on 17.12.2000 and executed the suit promissory note. The

plaintiff alleged that the defendant did not repay any amount either towards

principal or towards interest. On 31.12.2002, the plaintiff issued notice

calling upon the defendant to repay the borrowed amount with interest. The

defendant issued reply dated 03.01.2003 denying the notice claim.

Therefore, the appellant had to file the said suit on 16.12.2003. The

defendant filed a detailed written statement denying the plaint averments.

3.The case of the defendant was that he borrowed only a sum of

Rs.50,000/- from the plaintiff and that he had repaid a sum of Rs.25,000/-

already. Only a further sum of Rs.25,000/- remained to be paid and the

defendants had even issued a cheque dated 30.06.2003 for the said sum.

The defendant further alleged that on 26.11.2002, he was abducted and his

signatures were obtained in the unfilled promissory note. The defendant,

therefore, lodged a complaint before the Velayuthampalayam Police Station

in that regard. An enquiry was conducted and the plaintiff had agreed on

19.07.2003 that he would give a quietus to the issue by accepting a sum of

Rs.50,000/- from the defendant. Based on the rival pleadings, the trial

Court framed the necessary issues. The plaintiff examined himself as P.W.1 https://www.mhc.tn.gov.in/judis/

S.A.(MD)No.859 of 2010

and the scribe Ilangovan as P.W.2. Exs.A1 to Ex.A4 were marked. The

defendant examined himself as D.W.1 and Natarajan, Sub Inspector of

Police, Velayuthampalayam Police Station as D.W.2. Ex.B1 to Ex.B3 were

marked. Court exhibits 1 to 3 were marked. The learned trial Judge, after

considering the evidence on record, decreed the suit as prayed for vide

Judgment and decree dated 04.11.2006. Questioning the same, the

defendant filed A.S.No.7 of 2008 before the District Judge, Karur. The first

Appellate Court by Judgment and decree dated 29.09.2009 allowed the

appeal and modified the Judgment and decree passed by the trial Court.

The first appellate Court after considering the exhibits and the statement

given by the plaintiff before the Velayuthampalayam Police Station held

that the plaintiff had advanced only a sum of Rs.50,000/- and therefore,

decree can be passed only to that extent. Challenging the same, this second

appeal came to be filed.

4.The second appeal was admitted on the following substantial

questions of law:-

1.Whether the lower Appellate Court erred in stating that the defendant has not accepted the execution of the promissory note, when he has clearly admitted his signature found in Ex.A1?

2.Whether the lower appellate Court erred in rejecting the finding of the trial Court that Ex.X1 to Ex.X3 are not admissible? https://www.mhc.tn.gov.in/judis/

S.A.(MD)No.859 of 2010

5.The learned counsel appearing for the appellant reiterated the

contentions set out in the memorandum of grounds and called upon this

Court to answer the substantial questions of law in favour of the appellant

and allow this appeal and restore the decision of the trial Court.

6.Per contra, the learned counsel appearing for the respondent

submitted that the Judgment and decree passed by the first Appellate Court

does not call for any interference.

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

evidence on record. As already pointed out, the suit was laid on the

strength of Ex.A1 pro-note. The signature found in Ex.A1 is not in dispute.

The learned counsel appearing for the respondent would contend that the

defendant was abducted and his signatures were obtained in a blank unfilled

pro-note and after filling up the same, the suit came to be laid. But no

contemporaneous complaint was lodged. Therefore, I have to necessarily

hold that the allegation of abduction and obtaining of signature in the suit

pro-note under coercive circumstances has not at all been established. I

must also sustain the contention of the appellant's counsel that the first

Appellate Court had completely misconstrued Court exhibits 1 to 3. The

defendant lodged a complaint against the appellant on 19.07.2003 before https://www.mhc.tn.gov.in/judis/

S.A.(MD)No.859 of 2010

the local police station. The appellant / plaintiff was summoned and he had

agreed to receive a sum of Rs.50,000/- from the defendant. The appellant

nowhere conceded the claim of the defendant that the amount borrowed by

the defendant was only Rs.50,000/-. When the claim of the plaintiff is for a

larger sum, it is certainly open to him to receive a portion of the amount

towards partial satisfaction of the claim. The first Appellate Court went

completely wrong in concluding that the appellant had admitted that he had

lent only a sum of Rs.50,000/- to the defendant. Even though I hold that

Court Ex.3 has been misconstrued, that would still not be sufficient for this

Court to upset the impugned Judgment and decree. This is because, in

Court Ex.3, the appellant had admitted that he came to meet the defendant

to demand payment of a sum of Rs.2,00,000/-. When even according to the

plaintiff, the amount payable by the defendant was only Rs.2,00,000/- as

on 19.07.2003, it is inconceivable that on 17.12.2000, the defendant had

executed a pro-note for a sum of Rs.2,50,000/-. The case of the plaintiff is

contradicted by his own stand as reflected in Court Ex.3. It is true that

when the signature found in the pro-note is admitted, the onus certainly

shifted to the defendant. If the defendant had only admitted his signature in

the pro-note but denied having executed it, presumption under Section 118

of the Negotiable Instruments Act may not be straight away attracted.

Even then, the onus definitely shifted to the defendant, the moment he https://www.mhc.tn.gov.in/judis/

S.A.(MD)No.859 of 2010

admitted the signature attributed to him in Ex.A1. The defendant had

discharged the onus cast on him by marking Court Ex.3 through the official

witness D.W.2. Of-course, the plaintiff was entitled to fill up the unfilled

portion of the pro-note by invoking the power under Section 20 of the

Negotiable Instruments Act. But then, the pro-note cannot be filled up for

any imaginary figure or fancy figure. It should not exceed the actual

liability of the executant. Even according to the plaintiff, the actual liability

of the defendant was only Rs.2,00,000/- as on 19.07.2003. Therefore, the

figure of Rs.2,50,000/- mentioned in Ex.A1 was obviously false. Since the

defendant himself admitted that he had borrowed a sum of Rs.50,000/-, the

Court below had passed a decree in favour of the appellant for a sum of

Rs.50,000/- .The substantial questions of law are answered against the

appellant.

8.A reading of the evidence on record would indicate that the nature

of transaction between the parties was commercial in nature. The

promissory note talks of 24% interest per annum. Considering the facts and

circumstances, I am of the view that the plaintiff should be awarded

interest at the rate of 18% per annum from the date of filing of the suit.

The second appeal is partly allowed by modifying the impugned Judgment

and decree passed by the first Appellate Court as regards the rate of interest https://www.mhc.tn.gov.in/judis/

S.A.(MD)No.859 of 2010

alone. The respondent is directed to pay the plaintiff the sum of Rs.50,000/-

with interest @ 18% p.a with effect from 16.12.2003. No costs.

Consequently, connected miscellaneous petition is closed.

23.06.2021

Internet : Yes/No Index : Yes/No

rmi

To

1.The District Judge, Karur,.

2.The Sub Judge, Karur.

3.The Section Officer, Vernacular Records, Madurai Bench of Madras High Court, Madurai.

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

S.A.(MD)No.859 of 2010

G.R.SWAMINATHAN.J.,

rmi

Judgment made in S.A.(MD)No.859 of 2010

23.06.2021

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