Madras High Court
K.Kuppusamy vs N.Natarajan on 24 June, 2021
S.A.(MD)No.659 of 2012
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 24.06.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.659 of 2012
and
M.P.(MD)No.1 of 2012
K.Kuppusamy ... Appellant/Appellant/Defendant
-Vs-
N.Natarajan .. Respondent/Respondent/Plaintiff
PRAYER: Second Appeal is filed under Section 100 of the Civil Procedure
Code, against the Judgment and Decree in A.S.No.2 of 2008 on the file of
the Principal District Court, Dindigul, dated 30.11.2009 confirming the
Judgment and decree passed in O.S.No.134 of 2003 on the file of the Sub
Court, Palani, dated 31.08.2007.
For Appellant : Mr.D.Venkatesh
For Respondent : Mr.S.Satheeskumar
JUDGMENT
The defendant in O.S.No.134 of 2003 on the file of the Sub Court,
Palani, is the appellant in this second appeal. The suit was filed by the
respondent herein Thiru.Natarajan for recovering a sum of Rs.1,24,500/-
from the appellant herein.
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.659 of 2012
2.The case of the plaintiff is that Kuppusamy / defendant borrowed a
sum of Rs.1,00,000/- on 21.07.2000 agreeing to repay the same with
interest at the rate of 12% per annum. He also executed the suit pro-note.
The plaintiff issued notice dated 10.04.2003 calling upon the defendant to
clear the loan liability. Since the defendant did not come forward to do so,
the said suit came to be filed.
3.The defendant Kuppusamy filed his written statement denying the
plaint averments. He contended that the plaintiff's family and the
defendant's family though relatives were not on talking terms for several
years. The defendant's father is said to have given a complaint against the
plaintiff's father before the local police station. According to the defendant,
he was working as Sub Contractor along with relatives by name
Thambidurai and Subramani. The business venture ended in loss.
Therefore, they had to borrow a sum of Rs.50,000/- from one Kalimuthu.
The said Kalimuthu insisted that the defendant should execute a blank
promissory note. The defendant executed a blank promissory note and gave
it to the said Kalimuthu. Later, the defendant paid a sum of Rs.25,000/-
representing his share of liability. The said Kalimuthu is said to have stated
that only if the balance amount is also paid, the promissory note would be
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.659 of 2012
returned. According to the defendant, the said Thambidurai managed to
obtain the promissory note from the said Kalimuthu, filled it up and filed
the instant suit through the plaintiff. The trial Court framed the necessary
issues. The plaintiff examined himself as P.W.1. Interestingly,
Thambidurai who is referred to in the written statement of the defendant
was examined as P.W.2 as the attestor of Ex.A1-promissory note. The
plaintiff marked the suit notice Ex.A2, dated 10.04.2003 and the reply
issued by the defendant as Ex.A3. The defendant examined himself as D.W.
1 and marked Ex.B1 to Ex.B5. The trial Court came to the conclusion that
the plaintiff has established his case and decreed the suit as prayed for.
Aggrieved by the same, the defendant filed A.S.No.2 of 2008 before the
Principal District Judge, Dindigul. By Judgment and decree dated
30.11.2009, the appeal was dismissed. Challenging the same, this second
appeal came to be filed.
4.The second appeal was admitted on the following substantial
questions of law:-
“Whether the Courts below are right in law in granting decree
when the plaintiff did not discharge his onus of proof after the burden
was shifted to him?”
5.Heard the learned counsel on either side.
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.659 of 2012
6.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 question of law in favour of the appellant
and allow this appeal and dismiss the suit filed by the respondent herein.
7.Per contra, the learned counsel appearing for the respondent
submitted that the Judgments of the Courts below do not call for any
interference. I carefully considered the rival contentions and went through
the evidence on record.
8.This second appeal arise out of a money suit. The suit was laid on
the strength of Ex.A1-pro-note. There is no dispute that the appellant /
defendant K.Kuppusamy had signed in the said pro-note. Therefore, the
learned counsel appearing for the plaintiff would submit that the
presumption under Section 138 of the Negotiable Instruments Act will get
attracted and the onus was entirely on the defendant to rebut the
presumption.
9.The specific stand of the appellant is that he handed over a signed
blank pro-note to one Kalimuthu and that the same was obtained by P.W.2-
Thambi Durai who was the erstwhile business partner of the appellant and
misused. The learned counsel appearing for the appellant took me through
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.659 of 2012
the deposition of the plaintiff / witness. P.W.2-Thambidurai who is shown
as the attestor in Ex.A1 deposed that Ex.A1 was written down by one
Marichamy and that the defendant as well as P.W.2 signed in the document.
He categorically stated that all of them put their signature by using the very
same pen. The original pro-note is before me. Even an examination with
naked eye would show that the parties have signed it by using different
pens. That may not really go to the root of the matter. The pro-note was
said to have been executed on 21.07.2000, while P.W.2 was examined in
July 2007. Therefore, there is likely to be some lapse of memory. What
clinches the case in favour of the appellant is that the signature has been put
by using one pen, while the date has been put by using some other pen.
Normally, when a person puts one signature with date, it will normally be
by using one and the same instrument. It is not the case of the plaintiff's
witnesses that after Kuppusamy put his signature, the ink ran dry and that
the date was written by using some other pen. P.W.2 has flatly denied that
he had any business relationship with the defendant. To controvert the
same, the defendant had marked Ex.B5 which is the copy of the deposition
given by the principal contractor Subramani in C.C.No.41 of 2003 on the
file of the Judicial Magistrate, Tharapuram. It was a private complaint
filed under Section 138 of the Negotiable Instruments Act against P.W.2
-Thambidurai by the said Subramani. In the said testimony, Subramani had
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.659 of 2012
categorically stated that he had subcontracted the works to Thambidurai,
Palanisamy and one Kuppusamy.
10. The learned counsel for the appellant wants me to go by this
testimony to probabilise his case. There was a business relationship
between the defendant and P.W.2. Though the contention is rather
persuasive, I am afraid that Ex.B5 may not be admissible in view of Section
33 of the Evidence Act. The said testimony was given in a criminal case
between P.W.2 and Subramani. It is not the case of the appellant that
Subramani was no more or could not be produced. Therefore, Ex.B5 was
clearly inadmissible in evidence and I therefore refuse to take it into
account. However, from a consideration of the overall evidence on record, I
hold that the Courts below ought to have held that the defendant had clearly
rebutted the presumption on a balance of probabilities. Even though I
answer the substantial question of law in favour of the appellant and the
impugned Judgment and decree passed by the Court below are set aside,
this appeal cannot be allowed in toto.
11.The admitted case of the appellant is that a sum of Rs.50,000/-
was borrowed from Kalimuthu. Though the appellant would claim that he
had paid his share of liability i.e., Rs.25,000/-, still there is no proof for the
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.659 of 2012
same. Kalimuthu was not examined as a witness. No receipt has been
produced. If really the appellant had paid his share of liability, he would
have certainly got back the blank signed pro-note given by him to
Kalimuthu. The appellant had not issued any notice or communication in
this regard either to P.W.2 or to Kalimuthu. Therefore, I have to necessarily
hold that the loan of Rs.50,000/- availed from Kalimuthu remains uncleared
and that the same has been put to use through the plaintiff. The appellant's
counsel is ready to clear the principal liability of Rs.50,000/- together with
interest at the rate of 6% per annum.
12.Since the transaction between the parties is commercial in nature,
interest of justice requires that the defendant is directed to pay interest at
the rate of 12% per annum. Therefore, the impugned decree passed by the
Court below is modified and the defendant is directed to pay a sum of
Rs.50,000/- to the plaintiff together with interest at the rate of 12% per
annum to be calculated from the date of execution of the pro-note i.e., on
21.07.2000. Time for payment is twelve weeks.
13.The second appeal is partly allowed. No costs. Consequently,
connected miscellaneous petition is closed.
24.06.2021
Internet : Yes/No
Index : Yes/No
rmi
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.659 of 2012
G.R.SWAMINATHAN.J.,
rmi
To
1.The Principal District Court, Dindigul.
2.The Sub Court, Palani.
3.The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
Judgment made in
S.A.(MD)No.659 of 2012
and
M.P.(MD)No.1 of 2012
24.06.2021
https://www.mhc.tn.gov.in/judis/
