Ashok Kumar vs K.Mohanan
2021 Latest Caselaw 23099 Mad

                           IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED :25.11.2021

                                                       CORAM

                           THE HON'BLE Mr. JUSTICE G.CHANDRASEKHARAN

                                               S.A.No.876 of 2021
                                           and C.M.P.No.16642 of 2021
               Ashok Kumar                                                       ...Appellant

                                                        Vs.

               K.Mohanan                                                         ...Respondent

               PRAYER: Second Appeal filed under Section 100 of the Code of Civil
               Procedure, to set aside the judgment and decree passed in A.S.No.2 of 2017
               by the Additional District Sessions Court (Fast Track Court), Arani dated
               13.04.2018 confirming the judgment and decree made in O.S.No.144 of 2010
               on the file of the Sub Court, Cheyyar dated 06.08.2013.


                                       For Appellant    :     Mr.S.Sridevi
                                       For Respondent   :     Mr.K.G.Senthil Kumar


                                                   JUDGMENT

This Second Appeal is directed against the judgment of the

learned Additional District Sessions Court (Fast Track Court), Arani in

A.S.No.2 of 2017 confirming the judgment in O.S.No.144 of 2010 on the file

of the Sub-Court, Cheyyar.

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

2. Respondent filed the suit against the appellant and one Bastimal

Jain for recovery of money. The case of the respondent/plaintiff as seen from

the plaint averment is that, the appellant borrowed a sum of Rs.1,50,000/- on

19.07.2006 for his business purposes and family expenses. He agreed to pay

interest at the rate of Rs.150/- per Rs.100 and promised to return the amount

to the plaintiff or his order. The appellant has also executed a promissory

note on 19.07.2006 evidencing the said loan transaction. Despite repeated

demands to return the loan amount, appellant has not returned the loan

amount. Therefore, respondent sent legal notice dated 17.07.2009 to the

appellant. Even thereafter, the appellant has not repaid the loan amount.

Therefore, the suit for recovery of amount.

3. Appellant/Defendant filed written statement and he denied the

execution of promissory note dated 19.07.2006. It is his specific case that he

has not received any amount under the alleged promissory note dated

19.07.2006. He has no necessity to borrow the said amount from the

respondent. It is his specific case that defendants had no occasion to meet the

plaintiff. The sending of legal notice dated 17.07.2009 by the respondent is

denied. It is also denied that the defendants are doing jewelery business along

https://www.mhc.tn.gov.in/judis with Krishnakumar. The interest claimed is excessive therefore, the appellant

prayed for dismissal of the suit.

4. On the basis of the above pleadings the Trial Court framed the

following issues:

i)Whether the suit promissory note is true and executed for

proper consideration?

ii)Whether the plaintiff is entitled in the suit claim?

iii)To what relief if any, the plaintiff is entitled?

5. During the trial, PW1 was examined and Exhibits A1 and A2

were marked on the side of the plaintiff. DW1 to DW3 were examined and no

document was marked on the side of the defendants.

6. On considering the oral and document evidence, the learned Sub

Judge, Cheyyar, found that the suit promissory note was true and valid,

promissory note and was executed for consideration. In view of this matter,

the learned Sub Judge, Cheyyar, decreed the suit. The appellant filed appeal

in A.S.No.19 of 2014. The learned Principal Judge, Thiruvannamalai, also

https://www.mhc.tn.gov.in/judis found no reason to interfere with the judgment of the learned Sub Judge,

Cheyyar, and confirmed the judgment of the learned Sub Judge, Cheyyar and

dismissed the appeal in A.S.No.19 of 2014. Therefore, appellant is before this

Court by way of this Second Appeal.

7. Heard the learned counsel for the appellant and perused the

records.

8. The learned counsel for the appellant submitted that the

appellant has not really borrowed any money from the respondent. The fact

remains that the respondent is conducting a chit. The appellant was the

highest bidder for chit and he was paid chit amount. As a security for his bid

amount, respondent got blank signed promissory note from the appellant and

filled it to suit his convenience and filed the suit. Not only that appellant had

initiated insolvency proceedings. It is further submitted that in support of the

case of the appellant, appellant/defendants were examined as DW1 to DW3

and their evidence was not properly considered by the Court below.

Therefore, the learned counsel for appellant prayed for setting aside the

judgments of the Court below and for allowing this Second Appeal.

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

9. The pleadings of the suit had been extracted, especially written

statement filed by the appellant. The written statement filed by the appellant

is very limited and it is only in the mode of denial of allegations of

plaintiff/respondent. No specific case of the appellant is adverted to in the

written statement. It is now claimed by the learned counsel for the appellant

that there was no loan transaction, but there was only a chit transaction

between the appellant and respondent and the suit promissory note came to be

given to the respondent in a signed blank promissory note as a security. This

is a very important defense. Unfortunately, this defense has not been set up in

the written statement. Fundamental principle of law is that no amount of

evidence can be let in without proper foundation, that is pleadings. In the

absence of any pleadings no amount of evidence can be let in and even if it is

let in that cannot be looked into.

10. The other contention of the learned counsel for the appellant is

that he initiated insolvency proceedings. We are not concerned about the

insolvency proceedings, at this stage. Even as per the submissions made by

the learned counsel for the appellant that insolvency proceedings was

dismissed for non-prosecution. Therefore there is nothing survives in the

https://www.mhc.tn.gov.in/judis Second Appeal to adjudicate. The Courts below have, on proper appreciation

of oral and documentary evidence rightly decreed the suit. There is no

substantial question of law involved in this Second Appeal to entertain. This

Court finds no reason to interfere with the judgment and decree of the first

appellate Court, confirming the judgment and decree of the Trial Court.

11. In view of this matter, the judgment and decree of the learned

Additional District Judge, Sessions Court (Fast Track Court) Arani, in

A.S.No.2 of 2017 confirming the judgment and decree of the learned Sub

Judge, Cheyyar, in O.S.No.144 of 2010 is confirmed. Accordingly, this

Second Appeal is dismissed. No costs. Consequently, connected

miscellaneous petition stands closed.

25.11.2021

ep Index:Yes/No Internet:Yes/No Speaking Order: Yes/No

https://www.mhc.tn.gov.in/judis To The Section Officer, VR Section, High Court of Madras.

https://www.mhc.tn.gov.in/judis G.CHANDRASEKHARAN.J,

ep

S.A.No.876 of 2021 and C.M.P.No.16642 of 2021

25.11.2021

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