Madras High Court
Murugesan vs Kaliyammal on 23 November, 2021
S.A.(MD) No.317 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATE: 23.11.2021
CORAM
THE HON'BLE MRS.JUSTICE V. BHAVANI SUBBAROYAN
S.A.(MD) No.317 of 2018
and
C.M.P(MD) No.8823 of 2018
Murugesan ... Appellant / Respondent / Plaintiff
Vs.
Chinnakandiyanagoundar (Died)
Kaliyammal ...Respondent / Appellant /
2nd Defendant
Second Appeal filed under Section 100 of CPC against the
Judgment and Decree, dated 19.07.2018 passed in A.S.No.07 of 2016,
on the file of Additional District Court (Fast Track Court), Palani,
reversing the Judgment and Decree, dated 28.02.2011 passed in
O.S.No.188 of 2006, on the file of the Sub Court, Palani.
For Appellant : Mr.K.Srinivasan,
Sr.Counsel
For Respondent : Mr.B.Rajesh Saravaan
1
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S.A.(MD) No.317 of 2018
JUDGMENT
The present second appeal has been preferred against the
Judgment and Decree, dated 19.07.2018 passed in A.S.No.07 of 2016,
on the file of Additional District Court (Fast Track Court), Palani,
reversing the Judgment and Decree, dated 28.02.2011 passed in
O.S.No.188 of 2006, on the file of the Sub Court, Palani.
2. For the sake of convenience, the parties are referred to as, as
described before the trial Court.
3.The case of the plaintiff, as per the averments made in the
plaint, in short, reads as follows:-
The 1st defendant received a sum of Rs.1,00,000/- from the
plaintiff on 10.12.2004 and agreed for payment of interest at the rate
of 0.75 paise, for Rs.100/- and had executed a promissory note.
Instead of repeated demands by the plaintiff, there was no payment by
the 1st defendant. On 23.03.2008, the 1st defendant died. Since the
2nd defendant, who is the wife of the 1st defendant, succeeded the
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S.A.(MD) No.317 of 2018
estate of the 1st defendant, she is liable to repay the amount borrowed
by her husband. Hence, the suit.
4. The second defendant filed a written statement, contending
interalia that the suit promissory note is a created and forged one.
Plaintiff is not entitled for any relief. The first defendant had not
executed any promissory note and not received amount, as claimed by
the plaintiff. The plaintiff has suppressed the relationship of his with
the 1st defendant. The plaintiff is the brother of the 1st defendant's
daughter. Since the plaintiff had not repaid the amount received
from one Unnamalaiyammal, she filed a Suit in O.S.No.845 of 1990 in
which, the plaintiff's property was taken over by one Palanichamy
through Court auction purchase. When the plaintiff has no other
property, except the court auctioned property, the question of lending
money to the 1st defendant does not arise all. Since this defendant
has no issue, the plaintiff forced the defendant to execute the property
in his favour. Since the defendant refused to execute the property in
favour of the plaintiff, the plaintiff filed the suit by creating the suit
promissory note. Hence, prayed for dismissal of the suit.
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S.A.(MD) No.317 of 2018
5. During trial, before the trial Court, on the side of the plaintiff,
two witnesses were examined as P.W.1 and P.W.2 and marked 4
documents as Exs.A1 to A4. On the side of the defendant, two
witnesses were examined as D.W.1 and D.W.2 and 2 documents were
marked as Exs.B.1 and B.2.
6. On analysis of materials adduced and on the basis of the rival
pleadings on either side, the trial Court, after framing necessary
issues and after evaluating both the oral and documentary evidence,
had decreed the suit in favour of the plaintiff .
7. Aggrieved by the Judgment and Decree passed by the trial
Court, the 2nd defendant, as appellant, had filed an Appeal Suit in
A.S.No.07 of 2016, on the file of the Additional District Court, (Fast
Track Court), Palani. The first appellate Court, after hearing both
sides and upon reappraising the evidence available on record, had
allowed the appeal by setting aside the Judgment and Decree of the
trial Court and dismissing the Original Suit.
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S.A.(MD) No.317 of 2018
8. Being disconcerted and aggrieved by the said Judgement and
Decree of the first appellate Court, the plaintiff filed this Second
Appeal on various grounds and also suggesting some substantial
questions of law, as below:-
“1. Whether the lower appellate Court is
right in law in mechanically accepting the
version of the respondent as if the appellant
has no means to advance the amount involved
in the pro-note under Ex.A1 merely on the basis
of Ex.B1 without adverting to the presumption
provided under Section 118 of the Negotiable
Instruments Act?
2. Has not the lower appellate Court
erred in law in dismissing the Suit by reversing
the findings of the trial Court absolutely
without any cogent reasons, merely on
surmises and conjectures, even overlooking the
evidence of P.W.1 and P.W.2 as well as the very
admission of D.W.1 in a right perspective?.”
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S.A.(MD) No.317 of 2018
9. Mr.K.Srinivasan, the learned Senior Counsel appearing for
the appellant / plaintiff would submit that the first appellate court has
failed to advert that the due executioin of pronote has been proved by
the plaintiff by examining the attesting witness viz., P.W.2 and no
contra evidence was adduced by the 2nd defendant to tilt or
overwhelm the evidence adduced by the plaintiff. The first appelalte
Court has mechanically accepting the version of the 2nd defendant, as
if the plaintiff has no means to advance the amount involved in the
pronote under Ex.A1 merely on the basis of Ex.B1 without adverting
to the presumption relating to passing of consideration provided
under Section 118 of the Negotiable Instruments Act. The first
appellate Court completely overlooked even assuming without
admitting the plea of the 2nd defendant relating to inheritance of
property by her through Ex.B2 still she is liable to repay the amount
borrowed by her husband / 1st defendant, as she has succeeded in the
estate of the 1st defendant on the very own plea of the defendant
herself.
10. The learned Senior Counsel would further submit that the
lower appellate Court has completely overlooked the due execution of
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S.A.(MD) No.317 of 2018
the pronote under Ex.A1, which has been proved without any doubt by
examining the plaintiff himself as P.W.1 as well as attesting witness of
Ex.A1 viz.,P.W.2. The lower appellate Court having accepted the plea
of the plaintiff, the due execution of Ex.A1 ought to have decreed the
suit on the basis of evidence of P.W.2, attestor of Ex.A1. It is his
further submission that whenever the Judgment of the first appelalte
Court was a Judgment of reversal, it is the primary duty of the first
appellate Court while reversing the findings of the trial Court to
consider the reasons given by the trial Court and those reasons must
also be reversed, but the same was not done in this case. Therefore,
the findings of the first appelalte Court is not binding on the Second
Appellate Court.
11. Adding further, the learned Senior Counsel appearing
for the appellant / plaintiff would contend that to upturn a well
considered judgment of the trial court, the first appellate court,
dealing with an Appeal under Section 96 C.P.C., should assign
reasons indicating as to where the trial court has gone wrong
and what should have been the right approach. This exercise
must be done by the first appellate court, when it intends to
upturn a well considered judgment. Suffice to state that the first
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S.A.(MD) No.317 of 2018
appellate has not done this important duty, keeping in mind the
rigor of Section 96 C.P.C., which is a statutory right available to
the aggrieved person. Hence, the learned counsel prayed for
setting aside the Judgment made by the first appellate Court
and allowing the Second Appeal.
12. Mr.B.Rajesh Saravaan, the learned Counsel appearing
for the Respondent / Defendant would submit that the first
appellate court upon considering the materials adduced on either
side and after hearing the submissions came to a right
conclusion, by reversing the Decree and Judgment of the trial
Court. The well considered Judgment of the first appellate
court need not be interfered with and prayed for dismissal of
the second appeal.
13.This Court paid its anxious consideration to the
rival submissions made and also perused the materials placed on
record.
14. It is the case of the plaintiff that the 1st defendant received
a sum of Rs.1,00,000/- from the plaintiff on 10.12.2004 and agreed
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S.A.(MD) No.317 of 2018
for payment of interest at the rate of 0.75 paise, for Rs.100/- and had
executed a promissory note to that effect. Instead of repeated
demands by the plaintiff, there was no payment by the 1st defendant.
On 23.03.2008, the 1st defendant died. Since the 2nd defendant, who
is the wife of the 1st defendant, succeeded the estate of the 1st
defendant, she is liable to repay the amount borrowed by her
husband.
15. It is the case of the defendant that the first defendant had
not executed any promissory note and not received amount, as
claimed by the plaintiff. The plaintiff has suppressed the relationship
of his with the 1st defendant. The plaintiff is the brother of the 1st
defendant's daughter. Since the plaintiff had not repaid the amount
received from one Unnamalaiyammal, she had filed a Suit in O.S.No.
845 of 1990 in which, the plaintiff's property was taken over by one
Palanichamy through Court auction purchase. When the plaintiff has
no other property, except the court auctioned property, the question of
lending money to the 1st defendant does not arise all. Since this
defendant has no issue, the plaintiff forced the defendant to execute
the property in his favour. Since the defendant refused to execute the
property in favour of the plaintiff, the plaintiff filed the suit by
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S.A.(MD) No.317 of 2018
creating the suit promissory note. The suit promissory note is a
created and forged one. Plaintiff is not entitled for any relief.
16. Ex.B1 is the Sale Deed, dated 15.12.2004. On perusal of
Ex.B1 would reveal that one Unnamalai Ammal filed a suit in O.S.No.
845 of 1993, before the District Munsif Court, Palani, against P.W.1,
for not repaying the amount, which he borrowed. The Suit is ended
in favour of Unamalai Ammal. Pursuant to the Execution Petition filed
by the said Unnamalai Ammal in E.P.No.483 of 1993 in O.S.No.845 of
1990, on 18.02.1993, one Chidambaram Chettiar purchased the
property of P.W.1 through Court Auction Purchase and he sold the
same to one Palanichamy Gounder, for Rs.80,000/- and the sale
certificate was issued on 08.12.2004.
17. Ex.A1 is the pro-note, dated 10.12.2004 said to have been
executed by 1st defendant in favour of the plaintiff. According to the
plaintiff, he had given a sum of Rs.1,00,000/- to the 1st defendant for
interest at the rate of Rs.0.75/- for Rs.100/- per month. Had it been
true, P.W.1 ought to have handed over the money to Unnamalai
Ammal, which he received and prevented the Court auction purchase
and kept his property with him, but P.W.1 had not done so. Further, in
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S.A.(MD) No.317 of 2018
this regard, the plaintiff has not produced any document to
substantiate his stand. Therefore, this Court has no hesitation to
come to a categorical conclusion that P.W.1 has no means to advance
the amount involved in the pro-note under Ex.A1. When that being the
case, the trial Court merely on surmises and conjunctures, without
properly appreciating the evidence P.W.1 and P.W.2, held Ex.A-1 is true
and genuine, which this Court unable to accept.
18.In fine, the Second Appeal is dismissed, confirming
the Judgment and Decree, dated 19.07.2018 passed in A.S.No.07 of
2016, by the learned Additional District Judge (Fast Track Court),
Palani, in reversing the Judgment and Decree, dated 28.02.2011
passed in O.S.No.188 of 2006, by the learned Sub Judge, Palani.
However, there shall be no order as to costs. Consequently, the
connected miscellaneous petition is also closed.
23.11.2021
Index: Yes/No.
Internet: Yes/No.
dn
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S.A.(MD) No.317 of 2018
Note: In view of the present lock down
owing to COVID 19 pandemic, a web
copy of the order may be utilised 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 Court
(Fast Track Court),
Palani.
2. The Sub Court,
Palani.
3. The Record Clerk
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
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S.A.(MD) No.317 of 2018
V. BHAVANI SUBBAROYAN, J.
dn
S.A.(MD) No.317 of 2018
23.11.2021
https://www.mhc.tn.gov.in/judis
