Madras High Court
S. Kumaraswamy vs Kanniappan on 22 September, 2021
S.A.No.309 of 2008
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 22.09.2021
CORAM
THE HONOURABLE MRS. JUSTICE R.HEMALATHA
S.A.No.309 of 2008
S. Kumaraswamy ...Appellant
Vs.
Kanniappan ... Respondent
Prayer : Second Appeal filed under Section 100 of CPC, 1908 against
the decree and judgment dated 29.01.2007 passed in A.S. No.82 of 2006,
on the file of the Subordinate Judge, Maduranthakam, Kanchipuram
District, upholding the decree and judgment dated 27.10.2004 passed in
O.S. No.94 of 2004, on the file of the District Munsif, Maduranthakkam,
Kanchipuram District.
For Appellant : Mr. Nagusah
For Respondent : Mr. Govi Ganesan
JUDGMENT
The unsuccessful plaintiff before both the courts below has
filed the present second appeal.
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S.A.No.309 of 2008
2. For the sake of convenience, the parties are referred to as
per their ranking in the trial court and at appropriate places, their ranking
in the present appeal would also be indicated.
3. The case of the appellant/plaintiff is that the
respondent/defendant borrowed a sum of Rs.40,000/- on 15.11.1998,
promising to repay the principal together with interest @ 12% per annum
and that despite repeated demands made by the plaintiff, the defendant
did not pay any amount due under the promissory note Ex.A1.
Therefore, a notice dated 31.10.2000, a copy of which is marked as
Ex.A2, was issued by the plaintiff to the defendant, for which the
defendant sent a reply notice dated 17.11.2000, a copy of which is
marked as Ex.A3, containing false allegations. He, therefore, filed a suit
for recovery of a sum of Rs.54,373-70 together with interest @ 12% per
annum from the date of plaint till the date of realisation.
4. The suit was resisted by the defendant on the following
grounds.
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S.A.No.309 of 2008
1) The defendant borrowed a sum of Rs.50,000/- on
11.11.1998 and executed three promissory notes each
for a sum of Rs.40,000/- agreegating to Rs.1,20,000/-.
2) He had paid a sum of Rs.44,000/- towards the same.
3) The promissory notes were not supported by
consideration.
4) Since his wife was admitted in the hospital, he had
signed on revenue stamped papers to meet his wife's
urgent medical expenses.
5) The defendant had also issued a reply notice dated
17.11.2000 (Ex.B1) to the notice of the plaintiff dated
31.10.2000 (Ex.B2).
6) The suit promissory note has also been materially
altered by changing the date from 11.11.1998 to
15.11.1998.
5. On the basis of the above pleadings, the Trial Court framed
the following issues.
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S.A.No.309 of 2008
1) Whether the suit promissory note is materially
altered?
2) Whether the promissory note is supported by
consideration?
3) Whether the plaintiff is entitled to the suit claim as
prayed for?
4) To what relief the plaintiff is entitled??
6. In the Trial Court the plaintiff examined himself and one
another witness and marked Ex.A1 to Ex.A3. The defendant examined
himself and Ex.B1 to Ex.B3 were marked. After full contest, the learned
District Munsif, Maduranthakam, dismissed the suit filed by the plaintiff
holding that
1) The suit promissory note Ex.A1 is materially altered.
2) The suit is barred by limitation.
Aggrieved over the same, the plaintiff filed an appeal in A.S.
No.82 of 2006 before the Subordinate Judge, Maduranthakam. The
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S.A.No.309 of 2008
learned Subordinate Judge, Maduranthakam, after analysing the evidence
on record, dismissed the appeal filed by the plaintiff.
7. Now the second appeal is filed on the following substantial
questions of law.
(1) Whether the courts below erred in law and mis
directed themselves by wrongly presuming that the
suit filed on 12.11.2001 was time barred and even
assuming that the suit promissory note was dated
11.11.1998 as per the defendant, the suit was rightly
filed on time with the preceding dates 10.11.2001 and
11.11.2001 were holidays.
(2) Whether the courts below erred in law and mis
directed themselves in not considering Ex.A2 notice
and Ex.A3 reply notice when the issuance of the
above notices were expressly admitted by the
defendant himself in his written statement.
(3) Whether the courts below erred in law and mis
directed themselves in shifting the burden on the
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S.A.No.309 of 2008
plaintiff to prove that the alteration was not done by
him when they concurrently held that the defendant
had executed the suit promissory note.
(4) Whether the courts below erred in law and mis
directed themselves by not noticing that the alteration
of date in the suit promissory note cannot be held to
be material alteration if the suit was filed within the
limitation period.
8. Normally, this court sitting in Second Appeal is not expected
to reassess the evidence and to interfere with the findings of facts
rendered by the courts below concurrently. But, when the court finds
prima facie that the appreciation of evidence is perverse and the findings
are not supported by materials on record, this Court has not only power
but also the duty to interfere with such findings.
9. The defendant did not deny his signatures on the suit
promissory note Ex.A1. In fact, it was admitted by him during the course
of cross examination that the entire pro-note was written and signed by
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S.A.No.309 of 2008
him. However, in the written statement, he has stated thus:
"This defendant submits that he has borrowed a sum of
Rs.50,000/- from the plaintiff for the medical expenses of his
wife on 11.11.98 and wherein the defendant has paid a sum
of Rs.44,000/- towards the interest to the plaintiff till
30.09.2000. This defendant further submits that on
11.11.98 the defendant has obtained two promissory notes
for Rs.40,000/- each and obtained a promissory note for
Rs.40,000/- similarly and wherein the said amounts to the
tune of Rs.1,20,000/- was never paid by the plaintiff to the
defendant. This defendant further submits that since the
defendant had to attend to the immediate medical needs of
his wife who was admitted at the Krishna nursing home,
Pondicherry, the defendant in order to borrow the money
had no other option than to sign the revenue stamped
papers without having received the consideration since the
plaintiff had demanded the signing of the said papers by the
defendant to make payment of the amount to satisfy the
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S.A.No.309 of 2008
medical needs of his wife. This defendant further submits
that the plaintiff has also issued a suit notice dated
31.10.2000 and for which the defendant has suitably replied
by his reply notice dated 17.11.2000 and wherein the
defendant has set out the facts categorically in his reply."
In the reply notice Ex.A3/Ex.B1, the defendant had stated that he
borrowed a sum of Rs.50,000/- from the plaintiff on 11.11.1998 and that
he paid a sum of Rs.44,000/- for which he executed two promissory notes
for Rs.30,000/- and Rs.12,500/- and a sum of Rs.1,500/- was paid by way
of cash. Therefore, it is clear from the above that the defendant had
taken a different stand in his written statement that he signed on revenue
stamped papers on two promissory notes for Rs.40,000/- on 11.11.1998
to meet the urgent medical expenses of his wife. This is in sharp contrast
to the contents of the legal notice.
10. Ex.A1 promissory note is dated 15.11.1998. The date '15'
appears to be over written/smudged. Based on this, both the courts
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S.A.No.309 of 2008
below concurrently held that the suit promissory note Ex.A1 is materially
altered. But a careful perusal of the entire promissory note Ex.A1 shows
that in many places, the words appear to have been over
written/smudged. It is pertinent to point out that the defendant was the
author of the instrument having written it in his own hand and signed the
same. It is admitted by the defendant in the written statement that notice
dated 31.10.2000 (Ex.A2) sent by the plaintiff was received by him for
which he sent a reply on 17.11.2000 (Ex.A3). However, both the courts
below had concluded that the plaintiff did not state anything about Ex.A2
in his plaint and therefore, it has to be construed that there was no
demand from the plaintiff. Such an observation of both the courts below
cannot be accepted since in the instant case, the defendant himself had
admitted that he received the notice of demand dated 31.10.2000 from
the plaintiff. Significantly, it is also found in the written statement that
the defendant had also borrowed a sum of Rs.50,000/- from the plaintiff
on 11.11.1998 for which a separate promissory note was executed by him
similar to Ex.A1.
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S.A.No.309 of 2008
11. As already observed, the suit promissory note Ex.A1 shows
that there are over writings in several places and D.W.1, the defendant,
admitted that he wrote the entire Ex.A1 in his own hand and signed the
same. This aspect was not at all considered by both the courts below.
Even assuming that the defendant executed Ex.A1 only on 11.11.1998
and not on 15.11.1998, the suit is not barred by limitation since the suit is
filed on 12.11.2001 with the preceding two days 10.11.2001 and
11.11.2001 were holidays. Therefore, the over writing of date on Ex.A1
does not make the entire document void as it could not serve any
purpose other than extending the limitation period. Both the courts
below did not advert their attention to the pleading in the written
statement as well as the deposition of the defendant as D.W.1 properly
and therefore, the same warrant interference by this Court. The
substantial questions of law are answered in favour of the appellant.
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S.A.No.309 of 2008
12. In the result,
i. the appeal is allowed. No costs.
ii. the decree and judgment dated 29.01.2007 passed in
A.S. No.82 of 2006, on the file of the Subordinate
Judge, Maduranthakam, Kanchipuram District,
upholding the decree and judgment dated 27.10.2004
passed in O.S. No.94 of 2004, on the file of the
District Munsif, Maduranthakkam, Kanchipuram
District, are set aside.
iii. The suit filed by the appellant/plaintiff in O.S. No.94
of 2004 is decreed with costs, directing the defendant
to pay a sum of Rs.54,374/- together with interest @
6% per annum from the date of plaint till the date of
realisation.
22.09.2021
Index: Yes/No
Internet: Yes/No
Speaking/Non-Speaking order
bga
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S.A.No.309 of 2008
R. HEMALATHA, J.
bga
To
1. The the Subordinate Judge, Maduranthakam, Kanchipuram District.
2. The District Munsif, Maduranthakkam, Kanchipuram District,
3. The Section Officer, VR Section, High Court, Madras
S.A.No .309 of 2008
22.09.2021
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