Madras High Court
M.Gopal vs P.Marimuthu on 16 November, 2021
S.A(MD)No.355 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 16.11.2021
CORAM
THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
S.A(MD)No.355 of 2019
and
C.M.P(MD)No.7113 of 2019
M.Gopal ... Appellant/Appellant/Defendant
Vs.
P.Marimuthu ... Respondent/Respondent/Plaintiff
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure against the judgment and decree, dated 06.03.2019 passed in
A.S.No.44 of 2016, on the file of the Fast Track Mahila Court, Dindigul,
confirming the judgment and decree, dated 23.02.2016 passed in
O.S.No.384 of 2012 on the file of the Additional Sub Court, Dindigul.
For Appellant : Mr.G.Mohankumar
For Respondent : Mr.J.Lawrance
1/12
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S.A(MD)No.355 of 2019
JUDGMENT
The concurrent Judgments and decrees, passed in O.S.No.384 of 2012
by the Additional Sub Court, Dindigul and in A.S.No.44 of 2016, by the Fast
Track Mahila Court, Dindigul, are being challenged in the present Second
Appeal.
2.The respondent herein as plaintiff has instituted a suit in O.S.No.384
of 2012 on the file of the trial Court for recovery of money of a sum of
Rs.4,00,000/- along with interest based on a pro-note, dated 01.06.2011,
wherein, the appellant has been shown as the defendant.
3.In the plaint it is averred that the defendant approached the plaintiff
on 01.06.2011 and obtained a sum of Rs.4,00,000/- with interest at the rate
of 1% for a sum of Rs.100/- per month, for his urgent family expenditure
and executed a promissory note on the same day. Due to non-payment of the
said amount, the plaintiff has sent a legal notice on 05.09.2012. Though the
defendant had received the notice, he had not repaid the amount. Hence, the
suit.
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S.A(MD)No.355 of 2019
4.In the written statement filed on the side of the defendant, it is
averred that one Chandra, who is the family friend of the defendant, had
borrowed a sum of Rs.4,00,000/- from one Mariammal, who is the sister of
the plaintiff. Since the defendant was a School Teacher, as a security for the
said amount, the defendant has signed in a blank pro-note. The defendant
has signed the pro-note and handed over to Chandra to be used by her as a
security for borrowal of money from the said Mariammal, as he has not
borrowed the said amount and he being a Government servant, he need not
borrow money from anybody. When the said Chandra requested the sister of
the plaintiff, as the loan is repaid, to return the documents entrusted as
security. Hence, the said Chandra had lodged a complaint against the
plaintiff's sister and his mother and a case was registered in Crime No.971 of
2012 on 11.08.2012. The said Mariammal is the sister of the plaintiff and he
has not obtained any loan from the plaintiff and the loan amount has already
been settled. In order to extract money from the defendant, the suit has been
filed and prayed for dismissal of the same.
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S.A(MD)No.355 of 2019
5. Before the trial Court, on the side of the plaintiff, the plaintiff
examined himself as P.W.1 and one Senthilkumar was examined as P.W.2
and Exs.A1 to A5 were marked. On the side of the defendant, the defendant
examined himself as D.W.1 and one Chandra was examined as D.W.2 and
one Thirumalai Nambi as D.W.3 and Ex.D.1 to D.4 were marked. On the
side of the witness, Ex.X.1 was marked.
6. On the basis of the rival pleadings on either side, the trial Court has
framed necessary issues and after evaluating both the oral and documentary
evidence, has decreed the suit in favour of the respondent / plaintiff and
directed the defendant to pay a sum of Rs.4,68,000/- with 6% per annum
from the date of petition till the date of realization for the principal amount
of Rs.4,00,000/-.
7.Aggrieved by the Judgment and decree passed by the trial Court, the
defendant as appellant, had filed an Appeal Suit in A.S.No.44 of 2016. The
first appellate Court, after hearing both sides and upon reappraising the
evidence available on record, has dismissed the appeal and confirmed the
Judgment and decree passed by the trial Court.
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S.A(MD)No.355 of 2019
8.Challenging the said concurrent judgments and decrees passed by
the Courts below, the present Second Appeal has been preferred at the
instance of the defendant as appellant.
9.The learned counsel appearing for the appellant/defendant
contended that both the Courts below have failed to see that the defendant
had signed the suit pro-note in a blank paper and it was handed over to
Chandra to be used by her as a security, for borrowing the amount from
Mariammal; the defendant is a Government servant and there is no necessity
for him to borrow loan from private persons for higher rate of interest; the
said Chandra had lodged a complaint as against the plaintiff's sister and
mother and the same was registered in Crime No.971 of 2012 on
11.08.2012, marked as Ex.B.1 and the present suit has been filed on
01.11.2012 and after lodging of the F.I.R under Ex.B.1 by the said Chandra
as against the plaintiff's sister and mother, the plaintiff has come forward
with the present suit and prayed for allowing the Second Appeal.
10.Heard the learned counsel for the appellant and the learned counsel
appearing for the respondent and perused the materials available on record.
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S.A(MD)No.355 of 2019
11.On going through the materials available on record, it is seen that
the appellant/defendant had obtained loan from the plaintiff on 01.06.2011
and has also executed a promissory note agreeing for the terms and
conditions contained therein on 01.06.2011. Inspite of repeated demands for
payment of principal as well as the interest, he has not paid even a single
paise and he sent a legal notice on 05.09.2012 and the said defendant has
also sent a reply notice denying all the averments. It is the case of the
appellant/respondent that he denied the execution of promissory note in
favour of the plaintiff, but admitted that he has signed the said promissory
note, which was a blank one and handed it over to one Chandra, who is the
wife of Kanagaraj, who is doing sale of egg as business and who had sought
for a loan from Mariammal, wife of Ravikumar and she also agreed to pay
the same and who directed the said Chandra to give a security from a person,
who is working in a appropriate job. Then the said Chandra requested the
appellant to execute a pro-note and in order to help them, he has signed in
the blank pro-note and handed it over to Chandra and Chandra in turn as
security for loan obtained from Mariammal. As Mariammal and Chandra had
a dispute with regard to the payment of the said amount, Chandra filed a
complaint before the District Superintendent of Police, Dindigul and the
same has been taken on file in Crime No.971 of 2012 and the said
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S.A(MD)No.355 of 2019
Mariammal was arrested and remanded to judicial custody. Due to said
vengeance, the plaintiff, who is an Advocate, has clandestinely taken out the
said pro-note and has filed the suit. It was also further stated that in the
Police Station when they returned all the document of the said Chandra,
Mariammal informed that she had misplaced the pro-note and will return it
later was not proved. It is the defendant's plea that there are some material
alterations found in the pro-note and also variation regarding the signature
and handwriting in the pro-note which differs and prayed for dismissal of
the plaint.
12.It is further found that the detail in the pro-note has been denied,
the handwriting and other material differences in pro-note and further the
mode of writing down and execution of pro-note and as per the
discrepancies found in the plaint, the defendant has raised various
allegations. He also stated that he reserve his right for sending the document
for chemical examination, but has not chosen to take the matter further for
examining the documents by a handwriting expert. He has also not taken any
application for sending the said document for chemical analysis report or to
a handwriting expert. It is also further found that even though the defendant
denied the written statement had examined only one Chandra, who is D.W.2,
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S.A(MD)No.355 of 2019
who deposed contrary when the defendant has accepted his signature in the
reply notice as well as the written statement, D.W.1 has given an evidence
that the said signature of the defendant itself was not accepted as genuine
and she submitted that there was difference between these signatures. When
the defendant himself has admitted that the evidence of D.W.2 was not
accepted and the trial Court as well as the first Appellate Court who had
come to the conclusion that when the stand taken by the defendant that only
for Chandra's loan, he has given it as a security, but when Mariammal has
not returned the said documents, which has been accepted by her cross-
examination, how she has kept quite by not insisting the Mariammal to
return the said document and no proper answer has been given by D.W.2 to
prove her stand. It is also further observed that D.W.2 chandra's son in
Ex.P.5 has admitted that he has agreed that they will pay both the amounts to
persons from whom they have obtained the loan. Hence the Courts below
have come to the conclusion that the defendant has not proved under what
circumstances, he had executed the said pro-note to the plaintiff and when
there is no other clinching evidence to prove the same, the trial Court as well
as the first Appellate Court has come to the conclusion and accepted the
signature in the pro-note as true and he was not in a position to prove his
case by letting appropriate evidence. All the material alterations were also
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S.A(MD)No.355 of 2019
not proved by the said defendant. As already admitted that he has only
signed the blank pro-note and when there is some other ink issued and some
other handwriting found in the pro-note, that alone cannot be a reason to
prove that this pro-note has not been executed in favour of the plaintiff.
13.As no valid evidence has been let in or no evidence that the
defendant has not obtained any loan from the plaintiff, this Court is of the
view that both the trial Court as well as the first Appellate Court, after
considering the evidences and the documents produced, has decreed the suit
in favour of the plaintiff and there is no necessity for this Court to interfere
with the well reasoned judgments of both the Courts below. Regarding the
questions of law raised by the learned counsel for the appellant, as the
matter has not been admitted and it is only a notice of motion, this Court
need not go into the question of law raised. Regarding the material
alterations and other aspects raised are all factual in nature and this Court
need not dwell on this aspect and the criminal proceedings initiated also
ended in acquittal of Mariammal, this Court is of the view that the defendant
has miserably failed to prove the case and the same is hereby dismissed.
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S.A(MD)No.355 of 2019
14.For the reasons aforesaid, this Court is of the considered view that
no questions of law much less substantial questions of law, has been made
out by the appellant / defendant calling for interference by this Court in the
well-considered judgments and decrees rendered by the Courts below and
accordingly, the Second Appeal stands dismissed. No costs. Consequently,
connected Miscellaneous Petition is closed.
16.11.2021
Index : Yes/No
Internet : Yes/No
ps
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.
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S.A(MD)No.355 of 2019
To
1.The Fast Track Mahila Court,
Dindigul.
2.The Additional Sub Court,
Dindigul.
3.The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
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S.A(MD)No.355 of 2019
V.BHAVANI SUBBAROYAN, J.
ps
Judgment made in
S.A(MD)No.355 of 2019
16.11.2021
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