Madras High Court
V.G.B.Sivaram Prasad … vs S.Ramesh Babu on 30 November, 2021
S.A.No.1011 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :30.11.2021
CORAM
THE HON'BLE Mr. JUSTICE G.CHANDRASEKHARAN
S.A.No.1011 of 2021
V.G.B.Sivaram Prasad …Appellant
Vs.
S.Ramesh Babu ...Respondent
PRAYER: Second Appeal is filed under Section 100 of the Code of Civil
Procedure, to set aside the judgment and decree dated 18.02.2020 made in
A.S.No.245 of 2019 on the file of the XVIII Additional City Civil Court,
Chennai, confirming the judgment and decree dated 12.12.2017 made in
O.S.No.1203 of 2016 on the file of the IV Assistant City Civil Court,
Chennai.
For Appellant : Mr.Mothilal
For Respondent : Mr.M.Kempraj
1/14
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S.A.No.1011 of 2021
JUDGMENT
This Second Appeal is directed against the judgment of the
learned XVIII Additional Judge, City Civil Court, Chennai, in A.S.No.245 of
2019 confirming the judgment of the learned IV Assistant Judge, City Civil
Court, Chennai, in O.S.No.1203 of 2016.
2. The appellant/plaintiff filed a suit against the respondent to
recover a sum of Rs.6,86,400/- and interest at 24%per annum on a sum of
Rs.4,00,000/- from the date of plaint till date of realization and for the cost of
the suit.
3. The case of the appellant, as seen from the plaint, in brief, is as
follows:
The respondent approached the appellant through V.Radha
Narasimha Rao, who is a friend of the appellant and an Auditor for huge
amount for his financial business as loan. Appellant paid a sum of
Rs.10,00,000/- to the respondent as loan and the respondent executed a
demand promissory note on 01.04.2009, repayable on demand together with
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S.A.No.1011 of 2021
interest at the rate of 24% per annum. Appellant and his family members have
also given earlier loan of Rs.90,00,000/- to the respondent. After repeated
reminders and request, the respondent paid interest on 31.03.2009 and he
paid a sum of Rs.10,00,000/- on 09.06.2010. On 24.03.2012, respondent paid
a sum of Rs.25,000/- and confirmed that there is an outstanding of
Rs.4,00,000/- and made endorsement accordingly acknowledging his
liability. The respondent has not paid the amount. However, respondent
threatened the appellant and forced the appellant to prefer a police complaint
in Cr.No.70/2015 in CCB FIR, Chennai, against the respondent. There is an
outstanding of Rs.4,00,000/- towards principal and a sum of Rs.2,86,400/-
towards interest. Therefore, the suit.
4. The case of the respondent, in brief, is as follows:
The claim that the respondent is liable to pay a sum of
Rs.6,86,400/- and interest at the rate of 24% per annum on Rs.4,00,000/- is
denied. It is claimed that this claim is hopelessly barred by law of limitation.
Respondent admits that he borrowed a sum of Rs.10,00,000/- from the
appellant on 01.04.2009. It is denied that appellant and his family members
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S.A.No.1011 of 2021
gave a loan of Rs.90,00,000/- to the defendant. The claim that on 24.03.2012,
respondent paid a sum of Rs.25,000/- and confirmed the outstanding of
Rs.4,00,000/- is a blatant lie. Respondent paid interest at the rate of 24% per
annum that is, Rs.20,000/- per month from 01.05.2009 to 31.03.2010 which
comes to a total of Rs.2,20,000/-. After two months, that is on 09.06.2010, he
paid principal sum of Rs.10,00,000/- with interest. But the appellant
suppressed the interest paid by the respondent while settling the principal
amount of Rs.10,00,000/-. An endorsement was made in the promissory note
that only a sum of Rs.10,00,000/- was paid on 09.06.2010. When he paid the
entire principal amount on 09.06.2010 what is the necessity for paying
Rs.20,000/- towards interest and acknowledging liability of Rs.4,00,000/-.
Even after the payment of principal amount on 09.06.2010, appellant has not
returned the promissory note. Respondent caused legal notice on 26.03.2016,
calling upon the appellant and his wife and son to return the time barred and
fully discharged promissory note. The suit was filed without paying proper
Court fee. Only a sum of Rs.100/- was paid at the time of filing of the suit.
After several returns, deficit Court fee was paid. Therefore, the suit has no
merits and liable to be dismissed.
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5. On the basis of this pleadings, the learned Trial Judge framed the
following issues:
i) Whether the plaintiff is entitled for the amount claimed?
ii) To what other relief?
6. During the trial, PW1 and PW2 were examined and Exhibits A1
and A2 were marked on the side of the plaintiff. On the side of the defendant,
no witness was examined and Exhibit B1 was marked. On considering the
oral and documentary evidence, the learned Trial Judge found that the Court
fee was not paid in time and therefore, the suit was barred by limitation. That
apart, it was also found by the learned Trial Judge, that when the respondent
paid the amount on 31.03.2010, there is no acceptable reason given for
claiming outstanding of Rs.4,00,000/-. Thus it is found that claim of the
plaintiff cannot be entertained and dismissed the suit. Appellant/plaintiff
preferred appeal in A.S.No.245 of 2019. The learned Appellate Judge also
considered the evidence, submissions of the learned counsel appearing for the
parties and judgment of the Trial Court and found no reason to interfere with
the view taken by the learned Trial Judge and confirmed the judgment of the
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Trial Judge and dismissed the appeal. Against the said judgment, this Second
Appeal is preferred.
7. The learned counsel for the appellant, submitted that though the
Court fee was not paid in full at the time of filing the suit, subsequently, the
Trial Court has condoned the delay in payment of Court fee. Therefore, that
issue cannot be agitated now. Exhibit B1 interest calculation memo produced
by the respondent shows that respondent is liable to pay the sum of
Rs.4,13,367/-. However, without considering these aspects, both the Courts
below have wrongly dismissed the suit.
8. In response, learned counsel for the respondent submitted that it
is admitted by the appellant that interest was paid upto 31.03.2010. The
principal sum of Rs.10,00,000/- was paid on 09.06.2010. Therefore, there is
no justification for claiming that there is still a sum of Rs.4,00,000/- due. The
claim that the respondent paid Rs.25,000/- on 24.03.2012 and acknowledged
the liability if Rs.4,00,000/- is totally denied by the respondent. This
endorsement was created by forgery just to make it appear that the suit was
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filed in time. When it is specifically contended that the signature of the
respondent in the alleged endorsement is forged, appellant has not taken any
steps to prove that the signature is that of the respondent in the endorsement.
Thus, it is submitted that Courts below have rightly, on proper appreciation
of the evidence, dismissed the suit and that requires no reconsideration.
9. Considered the rival submissions of the learned counsel
appearing for the parties and perused the records.
10. As narrated above, it is submitted by the respondent/defendant
that he borrowed a sum of Rs.10,00,000/- from the appellant on 01.04.2009
and executed a promissory note, Exhibit A2. It is also admitted by the
appellant that respondent paid interest upto 31.03.2010 and he paid a sum of
Rs.10,00,000/- on 09.06.2010. Now the suit is filed for the claim of
Rs.4,00,000/- plus interest. How this Rs.4,00,000/- is arrived? There is no
proper explanation in the plaint. When it is admitted that respondent paid
interest upto 31.03.2010, it can only be taken that interest from 01.05.2009 to
31.03.2010 was paid. That is, what the case of the respondent in the written
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statement. On 09.06.2010, a sum of Rs.10,00,000/- was paid. So whatever the
interest that remains to be paid is for the month of April and May 2010. It is
also said in the written statement of the respondent that two months interest
of Rs.40,000/- was paid but omitted to be mentioned in the endorsement.
Even assuming that interest for two months that is, Rs.40,000/- was not paid,
it is barred by limitation.
11. Next aspect of the matter is that the appellant heavily relied on
Exhibit B1 account statement produced by the respondent to claim that
respondent is liable to pay Rs.4,13,367/-. This accounts statement, according
to this Court, is contradictory to the pleadings raised by the respondent in the
written statement. Assuming that this accounts statement is true, the question
arises is whether the appellant can claim this amount on the basis of the
endorsement dated 24.03.2012. The suit was filed in 2015. Only if
endorsement dated 24.03.2012 is true, the suit can be saved from limitation.
If this endorsement is not proved, the suit is barred by limitation. It is
specifically denied by the respondent that he has not made this endorsement.
When the execution of this endorsement is denied by the respondent, it is for
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the appellant to prove by examining concerned witnesses or by subjecting it
to hand writing experts opinion. Unfortunately, there is no attestors to this
promissory note or to the endorsement. Only the course open to the appellant
for proving this endorsement is subjecting this endorsement to hand writing
expert's opinion to find out whether the signature found in the endorsement is
that of the respondent. That was not done.
12. It is pertinent to refer to the evidence of PW1 in this regard. PW1
admitted that he has not taken any steps for sending the promissory note for
proving the signature in the endorsement is that of the respondent. It is also
admitted by him that Rs.25,000/- said to have been paid by the respondent on
24.03.2012. It is not mentioned in the endorsement as to whether it relates to
interest or principal. He admitted that he has not explained as to how did he
arrive at the sum of Rs.4,00,000/- in the plaint. It is also his submission that
he has not given any pre-suit notice before instituting the suit. He admitted
that as per the written statement of the respondent, he claimed to have paid
interest till 31.03.2010. He also admitted that respondent, paid interest once
in an year and he paid interest upto 31.03.2010. There is a plain and clear
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admission that on 09.06.2010, respondent repaid Rs,10,00,000/- borrowed
through promissory note.
13. It is clear from his evidence that the respondent paid interest till
31.03.2010 and repaid the principal amount of Rs.10,00,000/- on 09.06.2010.
He is also not able to say how did he arrive at the sum of Rs.4,00,000/-.
Therefore, this Court finds that the claim of Rs.4,00,000/- is not supported by
any acceptable reasons. Not only that the respondent failed to establish that
the endorsement was made by the respondent acknowledging the liability of
Rs.4,00,000/-. Therefore, this Court is of the considered view that, appellant
is not entitled to claim a sum of Rs.4,00,000/- with interest.
14. The issue that was canvassed by both the parties is non-payment
of proper Court fee at the time of filing the suit. Honb'le Supreme Court held
in the judgment reported in CDJ 2012 SC 441 that the Court must scrutinize
the explanation offered for the delayed payment of the deficit Court fee
carefully because exercising its discretion under Section 149 CPC and
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Section 149 CPC does not confer an absolute right in favour of the plaintiff to
pay the Court fee as and when would it pleases the plaintiff. The Trial Court
chose to condone the delay. It was not agitated any further by the respondent
after he entered appearance in the suit. Therefore, this Court does not want,
this stage to deal with this aspect. Suffice it is to say that the appellant has not
made out a case for claiming Rs.4,00,000/- with interest from the respondent.
On that score, this Court agrees with the findings arrived by both the Courts
below and confirms the judgment.
15. This Court finds no reason to interfere with the judgment and
decree of the Appellate Court confirming the judgment and decree of the
Trial Court. There is no substantial question(s) of law involved in this Second
Appeal. In this view of the matter, the judgment and decree of the learned
XVIII Additional Judge, City Civil Court, Chennai in A.S.No.245 of 2019
confirming the judgment and decree of the learned IV Assistant Judge, City
Civil Court, Chennai, in O.S.No.1203 of 2016 is confirmed.
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16. In fine, this Second Appeal is dismissed. No costs.
30.11.2021
ep
Index:Yes/No
Internet:Yes/No
Speaking Order: Yes/No
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S.A.No.1011 of 2021
To
The Section Officer,
VR Section,
High Court of Madras.
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S.A.No.1011 of 2021
G.CHANDRASEKHARAN.J,
ep
S.A.No.1011 of 2021
30.11.2021
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