Madras High Court
M.Arumugam vs M.V.P.Mariappan on 26 November, 2021
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATE: 26.11.2021
CORAM
THE HON'BLE MRS.JUSTICE V. BHAVANI SUBBAROYAN
S.A.(MD) No.28 of 2018
and
CMP(MD) No.510 of 2018
M.Arumugam Appellant
vs.
1. M.V.P.Mariappan
2. I.Shakthivel Respondents
Second Appeal filed under Section 100 of CPC against the
Judgment and Decree dated 06.07.2017 passed in A.S. No.196 of
2011 on the file of the Sub Court, Thoothukudi confirming the
judgment and decree dated 21.11.2009 passed in O.S.No.689 of 2004
on the file of the Principal District Munsif, Thoothukudi.
For Appellant : Mr.M.P.Senthil
For Respondents :
No.1 : Mr. S.Senthil Sankaranathakumar
No.2 : Dispensed with
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2
JUDGMENT
The present second appeal has been filed challenging the
judgment and decree dated 06.07.2017 passed in A.S. No.196 of 2011
on the file of the Sub Court, Thoothukudi, confirming the judgment
and decree dated 21.11.2009 rendered in O.S. No.689 of 2004, on the
file of the Principal District Munsif Court, Thoothukudi.
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 he
plaint, in short, reads as follows :
The plaintiff is running a money lending business in the name
and style of 'Venkatachalapathy Bankers' in Thoothukudi. On
28.05.2003, the defendants had obtained Rs.2,50,000/- from the
plaintiff Bankers, for purchasing a lorry, and agreed for payment of
interest @Rs.1 for Rs.100/- and executed a promissory note. The
second defendant had executed an equitable mortgage by an
unregistered document dated 29.05.2003. Thereafter on 28.08.2003,
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the defendants paid a part amount of Rs.2,25,000/- and the same has
been entered in the ledger book maintained by the plaintiff. When the
plaintiff asked for the balance amount of Rs.25,000/-, the defendants
have not paid the said amount. For non payment of balance amount,
the plaintiff has sent a legal notice to the defendants on 27.08.2004 .
The first defendant received the legal notice on 01.09.2004 and the
second defendant refused to receive the same. Hence, the plaintiff has
filed a suit seeking for recovery of a sum of Rs.28,316.64/- with 12%
interest, in case of failure to repay the said amount, to execute the
equitable mortgage deed executed by the 2nd defendant and to to sale
the same.
4. The first defendant filed a written statement, denying the
allegations made in the plaint, submitted that the first defendant had
not executed any promissory note and not received any amount, as
claimed by the plaintiff. The signature in the pronote does not belong
to him. The first defendant, after filing the written statement has filed
additional written statement wherein, he had admitted that he had
received a sum of Rs.30,000/- only on 10.09.2001 from the plaintiff
and agreed to pay 12 % interest for the same, for which, the plaintiff
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has taken cheque leaves from the first defendant and on 24 occasions
the plaintiff had withdrawn money from the first defendant's bank
account, through his agents namely Selvaraj, Meharaj, Namachivayam
and Rajendraprasad. Further, on 21.06.2003, one Rajendraprasad had
taken a sum of Rs.45,000/- from the account of the first defendant, for
which, he has given a complaint against him before the Superintendent
of Police, Thoothukudi District, on 04.07.2003. Since no action has
been taken by the Superintendent of Police, Thoothukudi, he has
approached the High Court and the Supreme Court. The plaintiff has
taken seven cheque leaves, bearing Nos.915553 to 915560 and
immediately, the first defendant has sent 'stop payment' instruction to
the bank by way of telegram on 25.07.2003. The plaintiff issued notice
under Section 138 of the Negotiable Instrument Act, to pay a sum of
Rs.2,50,000/-,failing which, he will initiate legal action. The cheque
leaf bearing No.915555, which is one of the cheque taken away by
plaintiff, by way of extortion. It is alleged that on 18.12.2003 the
plaintiff had requested the first defendant not to appear before the
Vigilance enquiry held by the High Court and if he do not appear as
per request, he will withdraw the case suit in O.S. No.232 of 2003 and
therefore, prayed for dismissal of the suit.
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5. On the side of the the plaintiff, two witnesses were examined
as P.W.1 and P.W.2 and 13 documents were marked as Exs.A1 to A13.
On the side of the defendants, three witnesses were examined as D.W.
1 to D.W.3 and 23 documents were marked as Exs. B.1 to B.23 . One
Court witness was examined as X.W.1 and through him Exs.X1 to X5
were marked.
6.On analysis of the oral and documentary evidence, the Trial
Court has allowed the suit. Aggrieved by the same, the first defendant
has preferred an appeal in A.S. No.196 of 2011, on the file of the
learned Subordinate Judge, Thoothukudi.
7. The first appellate court, after considering the oral and
documentary evidence of the parties, had dismissed the appeal suit.
Aggrieved by the Judgment and decree passed by the first appellate
Court, the present Second Appeal has been filed the 1st defendant.
8. At the time of admission of the Second Appeal, this Court has
formulated the following substantial questions of law?
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a) Whether the judgment and decree of the
Courts below are vitiated in decreeing the suit even
with adverting that the 1st respondent as plaintiff has
not even discharged the initial onus of proof relating
to the due execution of Ex.A.1, alleged pronote,
especially it is the specific caseof the appellant is that
he has not executed Ex.A.1 at all ?
b)Have not the Courts below committed a
serious error in law in decreeing the suit on the basis
of Ex.A.2 even without adverting that the very
document itself is admissible in evidence, as it is not
only duly stamped as well as unregistered?
c)Whether the Courts below are right in
decreeing the suit even after the examination of the
Branch Manager of the Bank as XW.1 and marking
Ex.X.1 to X5 which would prima facie show that the
appellant has paid an extensive sum to the 1st
respondent in respect of the money earlier borrowed?
d) Have not the Courts below committed a
serious error in law in not legally inferring that the 1st
respondent/plaintiff is in the habit of creating
documents and filing vexatious suits which has been
clearly substantiated by the appellant by producing
document under Ex.B.1 2 to Ex.B.21?
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9. The learned counsel appearing for the appellant / 1st
defendant would submit that the very execution of pronote under
Ex.A1, the alleged pronote, has been disputed in the written statement
and no tangible steps was taken by the plaintiff to prove the due
execution of Ex.A1, either for seeking expert opinion for comparing the
signature. The Courts below have committed error in entertaining
Ex.A2 in evidence without adverting to the specific bar provided under
the Indian Stamp Act as well as the express provisions under the
Indian Registration Act in receiving the said document even in
evidence. The courts below completely overlooked that the 1st
defendant has specifically pleaded that the amount borrowed by him
has been duly discharged which has also been substantiated on the
basis of the evidence of X.W.1 and the same has been substantiated by
the evidence of P.W.2, which clearly shows that the 1st defendant has
received the entire amount which has to be paid by the 1 st appellant .
The Courts below ought to have inferred from the complaint preferred
by the 1st defendant against the plaintiff and his wife before the
Registrar (Vigilance) of the High Court in Ex.B5 are much earlier to the
legal notice sent by the plaintiff, under Ex.A10, dated 27.08.2004.
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Hence, the learned counsel prayed for setting aside the order of Courts
below.
10. The learned counsel appearing for the 1st respondent /
plaintiff would submit that the plaintiff is running a money lending
business in the name and style of 'Venkatachalapathy Bankers' in
Thoothukudi. On 28.05.2003, the defendants had obtained
Rs.2,50,000/- from the plaintiff Bankers and executed a promissory
note to that effect. The second defendant had executed an equitable
mortgage by an unregistered document dated 29.05.2003. It is the
contention of the plaintiff the balance amount of Rs.25,000/- has not
been paid by the defendants and therefore, he filed the suit for
recovery of sum of Rs.28,316.64/- with 12% interest. According to
the 1st defendant, the first defendant had not executed any promissory
note and signature in the pronote does not belong to him.
11. Heard the learned counsel for the appellant / 1 st defendant
and the learned counsel for the plaintiff / 1st respondent and also
perused the materials available on record.
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12. It is not in dispute that the plaintiff is running a money
lending business in the name and style of 'Venkatachalapathy
Bankers' in Thoothukudi. On 28.05.2003, the defendants had obtained
Rs.2,50,000/- from the plaintiff Bankers, for purchasing a lorry, and
agreed for payment of interest @ Rs.1 for Rs.100/- and executed a
promissory note. The second defendant had executed an equitable
mortgage by an unregistered document dated 29.05.2003.
Thereafter on 28.08.2003, the defendants paid a part amount of
Rs.2,25,000/- and the same has been entered in the ledger book
maintained by the plaintiff. When the plaintiff asked for the balance
amount of Rs.25,000/-, the defendants have not paid the said
amount. For non payment of balance amount, the plaintiff has sent a
legal notice to the defendants on 27.08.2004 . The first defendant
received the legal notice on 01.09.2004 and the second defendant
refused to receive the same. Hence, the plaintiff has filed a suit
seeking for recovery of a sum of Rs.28,316.64/- with 12% interest, in
case of failure to repay the said amount, to execute the equitable
mortgage deed executed by the 2nd defendant and to sale the same.
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13. In the additional written statement filed by the first
defendant, he admitted that on 10.09.2001, he had received a sum of
Rs.30,000/- from the plaintiff, agreeing to pay 10% interest for the
same, for which, the first defendant executed Ex.A1 – Pronote, to the
wife of the plaintiff. Ex.A2 is an unregistered equitable mortgage
executed by the 2nd defendant, dated 29.05.2003. As per the
contention of the 1st defendant, he paid the entire amount of
Rs.30,000/- to the plaintiff along with interest. When that being the
case, this court at loss to understand why the 1st defendant agreed to
pay the interest in the subsequent months to the wife of the plaintiff.
Ex.A9 is the Ledger containing the details of income and expenditure,
which has been produced by the plaintiff. On perusal of Ex.A9 it is
clear that the 1st defendant received Rs.2,50,000/- from the plaintiff
and paid Rs.2,25,000/-. The 1st defendant has not raised any serious
objection, when Ex.19, produced before this Court as document and
the genuinity of the document had also not been questioned by the 1 st
defendant in his additional written statement. Therefore, this Court
unable to agree with the contention of the 1st defendant in respect of
the plea that he had not received Rs.2,50,000/- from the plaintiff.
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According to the appellant he received only Rs.30,000/- f rom the
plaintiff and paid the same. The contention of the 1 st defendant that
the plaintiff is the habit of creating documents and filing vexatious
suits, cannot be accepted without any valuable proof. No valuable
evidence has been adduced by the 1st defendant to prove his case. As
noted earlier, the courts below, on appreciation of the oral and
documentary evidence on record, accepted the case of the plaintiff and
decreed the suit and I have no reason to interfere with the same.
The substantial questions of law are answered accordingly.
14. There is no answer from the defendants what was the further
action taken after issuance of 'stop payment' to the bank. What is the
action taken for allowing the agents to encash the cheques. When
there is no answer, whether he has appeared before the High Court for
enquiry or not and the results not known, this Court is not inclined to
accept the case as projected by the defendants.
15. In the result, the Second Appeal is dismissed, confirming the
Judgment and Decree, passed in A.S.No.196 of 2011, by the learned
Sub Judge, Thoothukudi, confirming the judgment and decree dated
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21.11.2009 rendered in O.S. No.689 of 2004, on the file of the
Principal District Munsif Court, Thoothukudi. However, there shall be
no order as to costs. Consequently, the connected miscellaneous
petition is also dismissed.
26.11.2021
Index: Yes/No.
Internet: Yes/No.
aav
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 Sub Court, Thoothukudi
2. The Principal District Munsif, Thoothukudi.
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V. BHAVANI SUBBAROYAN, J.
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S.A.(MD) No.28 of 2018
26.11.2021
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