Madras High Court
T.Murugan vs Pagirathan on 29 June, 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 29.06.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
AS(MD)No.57 of 2019
and
CMP(MD)No.3235 of 2019
T.Murugan S/o.Thirumalaichamy
... Appellant/Defendant
Vs.
Pagirathan ... Respondent / Plaintiff
Prayer : Appeal Suit is filed under Section 96 of Civil Procedure Code
against the judgment and decree dated 28.04.2018 allowing the suit
made in O.S No.41 of 2017 on the file of the Additional District
Court / Fast Track Mahila Court, Karur.
For Appellant : Mr.C.Mayil vahana rajendran
For Respondent : No appearance
JUDGEMENT
The defendant in O.S No.41 of 2017 on the file of the Additional
District Judge/FTC, Karur is the appellant in this first appeal. The
respondent Pagirathan filed the said suit for recovery of a sum of Rs.
11,20,000/- with interest from the appellant. According to the
plaintiff, the defendant was known to him and that on 03.08.2016, the
https://www.mhc.tn.gov.in/judis/
defendant borrowed a sum of Rs.10.00 lacs from the plaintiff and
executed Ex.A1 promissory note. The defendant agreed to pay the
principal with interest on demand. However, the defendant committed
default. Therefore, the plaintiff issued Ex.A2 notice dated 21.02.2017
calling upon the defendant to pay the amount with interest. The
defendant sent a reply dated 09.03.2017 (Ex.A4) denying the notice
averments. Hence, the suit was filed on 07.04.2017. The defendant
filed written statement denying the plaint averments. According to the
defendant, he borrowed a sum of Rs.10.00 lacs only from
Sabarinathan Finance at Karur on 27.03.2015. At the time of
borrowal, the financier had obtained eight unfilled signed promissory
notes from the defendant. The defendant claims to have repaid the
loan amount in installments. However, the financier did not return
the documents obtained from the defendant. The plaintiff is one of the
partners in the said company. Even though there was no individual
dealing between the plaintiff and the defendant, through the plaintiff,
the documents given by the defendant to the finance company were
made use of and the present suit had been laid.
2.The trial court framed the necessary issues. The plaintiff
examined himself as PW.1 and the attestor of the promissory note as
P.W.2. Exs.A1 to A11 were marked. The defendant examined himself
https://www.mhc.tn.gov.in/judis/
as DW.1 and marked Exs.B1 to B3. The trial court after considering
the evidence on record decreed the suit as prayed for. Questioning
the same, this first appeal has been filed.
3.Even though the respondent has been served through court,
he has not chosen to enter appearance. However, his name has been
printed in the cause list. The learned counsel for the appellant
reiterated all the contentions set out in the memorandum of grounds
of appeal. He would state that the transaction was only between the
appellant and Sabarinathan Finance and that the plaintiff did not
have any individual dealing with the appellant. He would point out
that when the unfilled documents were not returned, he lodged a
complaint before the Reddiyarchatram Police Station. Pursuant to the
same, an enquiry was conducted. That the defendant lodged a police
complaint has been established by marking Ex.B1. He submitted
that Ex.B2 and B3 clearly show that certain sums were withdrawn by
the defendant for the purpose of settling the dues of the finance
company. The learned counsel would submit that the trial court
erroneously held that execution of Ex.A1 had been established. He
called upon this Court to reverse the impugned judgment of the trial
court and allow this appeal and dismiss the suit.
https://www.mhc.tn.gov.in/judis/
4.I carefully considered the contentions of the learned counsel
for the appellant. The point for consideration is whether the finding of
the trial court that the execution of Ex.A1 has been established is
liable to be interfered with. The suit is one for recovery of money. It
has been instituted on the strength of Ex.A1 promissory note. The
signature found in Ex.A1 has not been contested by the defendant.
The defendant's stand is that an unfilled pro note was obtained from
him by the Sabarinathan Finance and that the same has been
purposely filled up and converted into Ex.A1. The defendant also
admits that he borrowed Rs.10.00 lacs as loan from the said
financier. There is again no dispute that the plaintiff is one of the
partners in the said finance company. In fact, the police complaint
given by the defendant was directed against Pagirathan/plaintiff. It
was the plaintiff who appeared before the Reddiyarchatram Police
Station and informed the police that since he had already filed a civil
suit for recovery of money, enquiry into the said complaint may be
dropped.
5.I repeatedly queried the learned counsel for the appellant as to
whether there is any proof indicating repayment of the sum of Rs.
10.00 lacs borrowed from Sabarinathan finance. Exs.B2 and B3 are
only bank statements of the defendant indicating withdrawal of certain
https://www.mhc.tn.gov.in/judis/
sums from the defendant's bank account. There is nothing on record
to show that the defendant had made any payment to Sabarinathan
Finance. The plaintiff by examining himself and PW.2 had established
the due execution of Ex.A1. Thereupon, the presumption under
Section 118 of the Negotiable Instruments Act got attracted. The
defendant could not rebut the presumption drawn against him.
Therefore, the trial court was justified in coming to the conclusion that
Exs.B2 and B3 would not advance the defence taken by the
defendant. The trial court had given a further finding that by
marking Exs.A8 to A11, the plaintiff had established his capacity to
lend the said amount also. In any event, the defendant admits that
the plaintiff was one of the partners in Sabarinathan Finance. The
trial court was fully right in concluding that the plaintiff had proved
the due execution of Ex.A1 by the defendant and hence entitled to the
relief prayed for. I do not find any ground to interfere with the
impugned judgment and decree passed by the trial court. The First
Appeal stands dismissed. No costs. Connected miscellaneous
petition is closed.
29.06.2021
Index : Yes / No
Internet : Yes/ No
skm
https://www.mhc.tn.gov.in/judis/
Note :In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may
be utilized for official purposes, but, ensuring that
the copy of the order that is presented is the
correct copy, shall be the responsibility of the
advocate/litigant concerned.
To:
1.The Additional District Judge / Fast Track Mahila Judge, Karur.
Copy to :
The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis/
G.R.SWAMINATHAN, J.
skm
AS(MD)No.57 of 2019
and
CMP(MD)No.3235 of 2019
29.06.2021
https://www.mhc.tn.gov.in/judis/
