Madras High Court
Regina Parveen vs Sulaiman on 3 September, 2021
1 A.S.(MD)NO.134 OF 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 03.09.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
A.S.(MD)No.134 of 2019
Regina Parveen ... Appellant / Defendant
Vs.
Sulaiman ... Respondent/Plaintiff
Prayer: Appeal suit filed under Section 96 of C.P.C.,
to set aside the judgment and decree passed in O.S.No.62 of
2013 dated 29.01.2019 on the file of the Additional District
Court(Fast Track Court), Kumbakonam, and to allow this
appeal suit.
For Appellant : Mr.T.R.Subramanian
For Respondents: Mr.V.S.Kumaraguru
***
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2 A.S.(MD)NO.134 OF 2019
JUDGMENT
The defendant in O.S.No.62 of 2013 on the file of the
Additional District Court(Fast Track Court), Kumbakonam, is
the appellant in this first appeal.
2. The suit was for recovering a sum of Rs.11,76,333/-
with interest from the appellant herein. The case of the
plaintiff/respondent herein is that the appellant availed a sum
of Rs.10,00,000/- on 15.02.2012 from him and executed Ex.A.1
promissory note. Since the defendant did not repay the loan,
the plaintiff issued Ex.A.2 notice dated 09.05.2013. Without
complying with the demand set out in the notice, the
defendant issued reply notice dated 12.05.2013(Ex.A.4). The
defendant denied the notice version in toto and came out with
a counter version. Therefore, the plaintiff filed O.S.No.62 of
2013 on 29.01.2019. After entering appearance, the appellant
filed written statement controverting the plaint averments.
Based on the divergent pleadings, the learned trial Judge
framed the necessary issues. The plaintiff examined himself as
P.W.1 and the attestors of the promissory note, namely,
Sathishkumar and Shajahan as P.W.2 and P.W.3. Ex.A.1 to
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3 A.S.(MD)NO.134 OF 2019
Ex.A.15 were marked. Defendant Regina Parveen examined
herself as D.W.1. Ex.B.1 to Ex.B.14 were marked. After a
consideration of the evidence on record, the learned trial
Judge by judgment and decree dated 29.01.2019 decreed the
suit and directed the appellant to pay the plaintiff a sum of Rs.
11,76,333/- together with interest @ 9% p.a. on the principal
amount of Rs.10,00,000/- from the date of the plaint till the
date of decree and thereafter @ 6% p.a.. Aggrieved by the
same, this appeal came to be filed.
3. The learned counsel appearing for the appellant
reiterated all the contentions set out in the memorandum of
grounds and called upon this Court to set aside the impugned
judgment and decree and dismiss the suit.
4. Per contra, the learned counsel appearing for the
respondent/plaintiff submitted that the impugned judgment
and decree do not warrant any interference.
5. I carefully considered the rival contentions and
went through the evidence on record.
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4 A.S.(MD)NO.134 OF 2019
6. The points for consideration are as follows:-
i) Whether the signature appearing in
Ex.A.1 is that of the defendant/appellant herein?
ii) Whether the presumption under
Section 118 of the Negotiable Instruments Act
can be raised against the defendant?
iii) If so, whether the defendant
rebutted the presumption?
iv) Whether the due execution of Ex.A.1
had been established?
7. The suit came to be filed on 06.08.2013 by the
respondent herein. It was preceded by notice dated
09.05.2013 (Ex.A.2). The defendant not only controverted the
notice averments but also came out with a counter version in
her reply notice dated 12.05.2013(Ex.A.4). In the reply notice,
the appellant had challenged the financial capacity of the
plaintiff to lend a huge sum of Rs.10,00,000/- to her. The
defendant also pointed out that she was under some kind of
influence of the plaintiff and that the plaintiff made use of her
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5 A.S.(MD)NO.134 OF 2019
condition and took away her jewellery and also a sum of
Rs.1,00,000/-. The defendant also stated that in this regard
she had given a complaint before Iyempettai police station on
30.04.2013. When the plaintiff examined himself as P.W.1, his
financial capacity and wherewithal to lend a sum of
Rs.10,00,000/- was specifically challenged. In response
thereto, the plaintiff could not adduce any evidence.
Admittedly, the plaintiff is eking out his livelihood only as a
driver. He does not even own a house. A sum of Rs.10,00,000/-
is certainly a huge sum and that would on the face of it attract
the taxation net. He is not an Income Tax assessee. The
transaction in question has not been reflected in his returns. A
person of normal prudence will not lend a huge sum without
taking any security. More than anything else, the plaintiff
claimed that by pledging his wife's jewellery, he was able to
generate the funds. In this regard, Ex.A.11 was marked.
8. A mere look at Ex.A.11 series would show that on
various dates in November and December 2011, the plaintiff
had approached Manappuram Finance Ltd., and availed loans
to the tune of few lakhs and rupees and earlier he approached
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S.S.Bank, Iyempettai, in August 2011 and December 2011 and
availed certain sums of money. It is inconceivable that a
person would pledge one's jewellery to advance loan to some
other person. This probabilises the case of the defendant that
the plaintiff had obtained 40 sovereigns of jewellery from her
and he was refusing to return the same. It is quite possible
that the subject matter of the pledged items covered under
Ex.A.11 are probably that of the defendant. However, I do not
render any firm finding in this regard. Even according to the
plaintiff, loan was given in February 2012. But Ex.A.11 series
indicates that the plaintiff had been availing loans from the
private finance institution even for sums as small as
Rs.12,000/- and Rs.13,000/-. The plaintiff has nowhere stated
as to when the defendant made a request for availing loan of
Rs.10,00,000/-. Ex.A.11 instead of strengthening the case of
the plaintiff, falsifies his testimony.
9. Ex.A.1 has been signed by two persons, namely,
Sathishkumar and Shajahan. They were examined as P.W.2
and P.W.3. Both of them admitted during the course of cross
examination that the signatures put by them before the Court
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7 A.S.(MD)NO.134 OF 2019
was at variance with the signatures attributed to them in
Ex.A.1. P.W.3 Shajahan would state that the defendant signed
Ex.A.1 in violet ink. However when confronted with Ex.A.1, he
admitted that it was signed in black ink. There are
discrepancies between the testimonies of P.W.2 and P.W.3.
P.W.1 would state at one place that Ex.A.1 was written by one
Ashok Kumar and in other place he would state that Ex.A.1
was written by one Vivek.
10. Of course the defendant had virtually conceded
that the signature found in Ex.A.1 is hers. Her specific defence
was that since she was under the influence of the plaintiff, she
had parted with 40 sovereigns of jewellery. She also stated
that her signatures were taken in stamp papers for the
purpose of obtaining electricity connection. Her stand appears
to be that the signed documents were misused by the plaintiff
and made the basis for filing the suit.
11. Since the signature in Ex.A.1 is that of the
appellant/defendant, the trial Court was justified in drawing
presumption under Section 118 of the Negotiable Instruments
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Act. The only question that calls for consideration is whether
the defendant rebutted the said presumption. The
presumption raised under Section 118 of the Negotiable
Instruments Act can be rebutted in several ways. It can be not
only by adducing positive evidence, but also by eliciting
appropriate answers from the plaintiff side witnesses. I have
already noted that even though the wherewithal to lend the
suit amount was specifically challenged, the plaintiff could not
adduce any satisfactory evidence to show that he had the
financial capacity.
12. Ex.A.6 is the notice sent by the plaintiff's wife to
the Inspector of Police, Iyempettai police station, Thanjavur.
In the said notice, the plaintiff's wife has stated that the
defendant had given a false complaint against the plaintiff on
30.04.2013 before Iyempettai police station as if the plaintiff
had misappropriated her 40 sovereigns of gold. It is clear that
even before the issuance of the demand notice, the defendant
had already gone to the local police. When the plaintiff was
summoned for enquiry, he appeared and the police have
advised the parties to resolve the matter before the civil
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Court. Only thereafter, the suit notice dated 09.05.2013 came
to be issued. The defendant had also marked Ex.B.13 which is
a medical prescription dated 15.05.2010. From the said
evidence, one can come to the conclusion that the defendant
was taking treatment for psychiatric issues. The defendant's
specific stand was that the plaintiff assured her that he will be
able to cure the defendant of her mental illnesses and that is
why, she came under his influence. The stand of the defendant
is highly probable. Before the issuance of the suit notice and
after filing of the suit, the defendant had repeatedly moved the
local police.
13. From the overall consideration of the evidence, I
firmly come to the conclusion that the defendant had rebutted
the presumption raised against her and onus once again fell
on the plaintiff. The plaintiff should establish that he had lent
a sum of Rs.10,00,000/- to the defendant as per Ex.A.1. Since
it has not been established by the plaintiff, the suit has to
necessarily fail. The Court below failed to consider the
circumstances projected by the defendant. Since the signature
appearing in Ex.A1 is that of the appellant, presumption was
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rightly raised against her. But then, on a balance of
probabilities, the defendant had rebutted the presumption.
The plaintiff never had the financial capacity to lend the sum
of Rs.10.00 lakhs to the defendant. The defendant was having
psychiatric issues and she had under influence of the plaintiff
and making use of the same, the plaintiff had obtained certain
signed blank documents from her. Ex.A1 was one such
document. The plaintiff had filled up the signed blank
document and projected it as if it is the pro-note executed by
the defendant. The testimony of the attestors does not inspire
the confidence of this Court. After re-appreciating the entire
evidence on record, I come to the conclusion that due
execution of Ex.A1 has not at all been established. The
judgment and decree dated 29.01.2019 passed in O.S.No.62 of
2013 on the file of the Additional District Court(Fast Track
Court), Kumbakonam, is set aside. This appeal suit is allowed.
No costs.
03.09.2021
Index : Yes / No
Internet : Yes/ No
PMU
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11 A.S.(MD)NO.134 OF 2019
Note: 1. 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.
2. Web copy of this order shall be
uploaded on .10.2021.
To:
1. The Additional District Judge(Fast Track Court),
Kumbakonam,
2. The Record Keeper, V.R.Section,
Madurai Bench of Madras High Court, Madurai.
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12 A.S.(MD)NO.134 OF 2019
Note : Web copy of this order
shall be uploaded on .10.2021.
G.R.SWAMINATHAN,J.
PMU
A.S.(MD)No.134 of 2019
03.09.2021
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