Madras High Court
Johnson vs Pudhumaipitchai on 29 September, 2021
SA(MD).No.547 of 2015
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 29.09.2021
CORAM:
THE HONOURABLE MR.JUSTICE A.D.JAGADISH CHANDIRA
SA(MD).No.547 of 2015 and
MP(MD).No.2 of 2015
Johnson ... Petitioner
-vs-
Pudhumaipitchai ... Respondent
PRAYER: The Second Appeal is filed under Section 100 C.P.C against
the Judgment and decree passed in A.S.No.16 of 2014 on the file of II
Additional District Court, Thoothukudi, dated 30.06.2014 reversing the
Judgment and decree in O.S.No.181 of 2008 on the file of the Trainee
District Judge Cum Additional Subordinate Judge, Thoothukudi, dated
29.02.2012.
For Appellant : Mr. T. Arivukumar
For Respondent : Mr. T. Anotony Arulraj
1
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SA(MD).No.547 of 2015
JUDGMENT
The Second Appeal has been filed seeking to set aside the
Judgment in A.S.No.16 of 2014 on the file of II Additional District Court,
Thoothukudi, dated 30.06.2014, reversing the Judgment and decree passed
in O.S.No.181 of 2008 on the file of the Trainee District Judge Cum
Additional Subordinate Judge, Thoothukudi, dated 29.02.2012.
2. The appellant is the defendant in O.S.No.181 of 2008 filed
by the plaintiff for recovery of a sum of Rs.3,53,667/- along with future
interest based upon the promissory note and the same has been dismissed
by the trial Court. Against the dismissal of the suit, the plaintiff filed First
Appeal in A.S.No.16 of 2014 and the Appellate Court by order dated
30.06.2014 reversed the Judgment of the trial Court and decreed the suit
directing the defendant to pay the said sum of Rs.3,53,667/- with
subsequent interest at 6% for the principal amount from the date of decreed
till the date of realization. Aggrieved by the same, the defendant has filed
the Second Appeal before this Court.
3. Earlier, this Court has referred the Second Appeal to the
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SA(MD).No.547 of 2015
Mediation Centre and the Mediation was conducted by Mr.C. Godwin on
31.07.2019 and the appellant has agreed to pay a sum of Rs.6,00,000/- as
per the following installments:
First payment on Rs.50,000/- on 19.08.2019
Second payment of Rs.50,000/- on 03.09.2019
Third payment of Rs.5,00,000/-
4. Pursuant to the settlement arrived at between the appellant
and the respondent before the Mediation, the appellant had handed over
the Demand Draft for Rs.70,000/- on 06.09.2019 and it was acknowledged
by the respondent. Thereafter, the balance amount of Rs.5,30,000/- had
not been paid. The Mediation Centre had referred the Appeal back to
Court.
5. The learned counsel appearing for the appellant would
submit that due to the poor financial condition, the petitioner was unable
to comply with the undertaking given by him before the Mediation Centre
and pay the balance amount of Rs.5,30,000/-. He would further submit
that the appellant had agreed to settle the balance amount and he has also
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SA(MD).No.547 of 2015
filed an undertaking. The respondent has also agreed to accept the
balance amount.
6. Today, the appellant has appeared before this Court through
virtual hearing and he has also filed an undertaking affidavit to pay the
balance amount of Rs.5,30,000/- to the respondent within a period of six
months. The said undertaking is recorded.
7. The learned counsel for the respondent submitted that the
respondent had agreed to receive the balance amount as per the
undertaking. He would further submit that in the event of any further
default, the respondent may be entitled to recover the amount at the rate of
6% interest from the date of failure to pay the amount.
8. The undertaking affidavit given by the appellant is
extracted hereunder:
“1. I am the appellant herein and the sole defendant in
the suit. I have been examined as DW.1 before the trial
Court. I am well conversant with the facts of the case.
2. The respondent herein instituted O.S.No.181 of 2008
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SA(MD).No.547 of 2015
before the Trainee District Judge cum Additional Sub Court,
Tuticorin, seeking the relief of recovery of sum of
Rs.3,53,667/- along with future interest and cost on the basis
of alleged loan said to have been borrowed by an alleged
promissory note said to have been executed by me.
3. I humbly submit that the trial Court after elaborate
discussion dismissed the said suit by its order dated
29.02.2012. Aggrieved by the said Judgment and decree the
respondent herein preferred A.S.No.16 of 2014 before the II
Additional District Court, Thoothukudi. The 1st Appellate
Court on an erroneous appreciation of law and facts reversed
the trial court judgment by allowing the appeal, by its order
dated 30.,06.2014. Aggrieved by the I Appellate Court
erroneous judgment and decree I have preferred this second
appeal.
4. I humbly submit that in pursuance of the order of
this Hon'ble Court the matter was referred to mediation.
Therein the mediation a settlement was arrived that I should
give Rs.6,00,000/- (Rupees Six Lakhs only) to the respondent.
In pursuance of the agreement I paid Rs.70,000/- (Rupees
Seventy Thousand only) by way of Demand Draft to the
respondent. Hereby I undertake to pay the balance amount of
Rs.5,30,000/- to the respondent within a period of six months
as assured before this Hon'ble Court on 22.09.2021.
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SA(MD).No.547 of 2015
5. It is therefore prayed that this Hon'ble Court may be
pleased to pass suitable orders accepting my undertaking
affidavit and thus render justice.”
8. Today, when the matter is taken up for hearing, the
appellant undertakes to be pay the balance amount of Rs.5,30,000/- to the
respondent within a period of six months as assured before this Court on
22.09.2021.
9. The appellant is directed to pay the balance amount of Rs.
5,30,000/- to the respondent within a period of six months as per the
undertaking given by him before this Court. In the event of any further
default, the respondent is entitled to recover the amount at the rate of 6%
interest from the date of failure to pay the amount. The undertaking
affidavit given by the appellant shall form part and parcel of this Judgment.
10. In pursuance of the undertaking, the appeal stands
dismissed and the order dated 30.06.2014 passed in A.S.No.16 of 2014, on
the file of the II Additional District Court, Thoothukudi is confirmed. No
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SA(MD).No.547 of 2015
costs. Consequently, the connected Miscellaneous Petition is closed.
29.09.2021
Internet : Yes / No
Index : Yes / No
trp
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SA(MD).No.547 of 2015
To:
1. The II Additional District Court, Thoothukudi.
2. The District Judge Cum Additional Subordinate Judge, Thoothukudi,
https://www.mhc.tn.gov.in/judis/
SA(MD).No.547 of 2015
A.D.JAGADISH CHANDIRA, J.
trp
SA(MD).No.547 of 2015 and
MP(MD).No.2 of 2015
29.09.2021
https://www.mhc.tn.gov.in/judis/
