Baskaran vs Senthilvel
2022 Latest Caselaw 7289 Mad

                                                                             A.S. (MD) No. 47 of 2017


                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                               DATED : 07.04.2022

                                                     CORAM

                                  THE HONOURABLE MS. JUSTICE R.N.MANJULA

                                          A.S. (MD) No. 47 of 2017 and
                                          C.M.P. (MD) No. 2665 of 2017
                     Baskaran                                      ... Appellant / Defendant

                                                      Vs.

                     Senthilvel                                      ... Respondent / Plaintiff

                     PRAYER: Appeal Suit filed under Section 96 r/w Order 41 and Rule 1 and
                     2 of the Civil Procedure Code, 1908 against the judgment and decree of the
                     learned Principal District Judge, Virudhunagar, dated 28.08.2014 in O.S.
                     No. 121 of 2007.
                                         For Appellant   : Mr.F.X.Eugene
                                         For Respondent : Mr.A.Sivaji

                                                JUDGMENT

This Appeal has been preferred challenging the judgment and decree of the

learned Principal District Judge, Virudhunagar, dated 28.08.2014 made in

O.S. 121 of 2007.

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2. The appellant is the defendant; the suit has been filed for the recovery of

money based on the promissory note; as per the allegations of the plaintiff,

the defendant had availed a loan of Rs.5,00,000/- (Rupees Five Lakhs only)

on 30.09.2005 and executed a promissory note on the said date and agreed

to pay the interest at the rate of 12% per annum; despite it was agreed that

he would repay the principal and interest when demanded, the defendant did

not repay the same; after sending a legal notice on 17.05.2007 and waited

for the repayment, the plaintiff had filed the suit for recovery of a sum of

Rs.5,99,000/- (Rupees Five Lakhs and Ninety Nine Thousand only) which is

inclusive of principal and interest.

3. The defendant resisted the suit by denying the receipt of the loan and he

has stated that he was the employee of the plaintiff and he was engaged to

drive tractors and trailers belonging to the plaintiff; the plaintiff was

involved in sand theft, for which, his tractors and trailers were seized and he

also paid fine; so, the plaintiff wanted to take revenge on one Tahsildar, by

name, Pichaiyah who had seized his vehicle; so, he wanted the defendant to

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tell a false statement that the said Tahsildar demanded a sum of Rs.10,000/-

(Rupees Ten Thousand only) as bribe; though the defendant had affixed the

signature in the complaint against the Tahsildar out of compulsion, he did

not depose against the Tahsildar when the Sub Collector conducted an

enquiry; only because of this, the plaintiff got enraged and filed the suit.

4. The defendant had availed only a sum of Rs.50,000/- (Rupees Fifty

Thousand only) from the plaintiff for his urgent expenses during the month

of December 2006; the signature obtained by the defendant on the blank

stamp promissory note by way of security of amount of Rs.50,000/- (Rupees

Fifty Thousand only) given to him; by misusing the above promissory note,

the plaintiff has filed the suit and hence, the suit should be dismissed.

5. On the basis of the above pleadings, the learned trial Judge framed the

following issues:

(i) jhth flDWjpr; rPl;ow;F gpujpgpunah$dk;

                     vJt[k; ,y;iyah>



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https://www.mhc.tn.gov.in/judis
                                                                               A.S. (MD) No. 47 of 2017


                                  (ii)   thjpf;F   tHf;Fiuapy;     nfhhpago     bjhif
                     fpilf;ff; Toajh>
                                  (iii) thjp nfhhpa[s;s tl;o rhpahdjh >
                                  (iv) ntW vd;d ghpfhuk; fpilf;ff;ToaJ>

6. During the course of trial, on the side of the plaintiff, three witnesses

were examined as PW1 to PW3 and Exs.A1 to A3 were marked. On the side

of the defendant, two witnesses were examined as DW1 and DW2 and

Exs.B1 to B4 were marked. On conclusion of the trial, the learned Judge

decreed the suit and aggrieved over the same, the defendant has preferred

the Appeal Suit.

7. The learned counsel for the appellant submitted that the appellant did not

avail a sum of Rs.5,00,000/- (Rupees Five Lakhs only) as claimed by the

respondent; the appellant was employed as a Driver to the respondent and

he was involved in sand smuggling; since he was made to pay fine for his

illegal activities to the Government Authorities, the respondent wanted the

appellant to co-operate with him to give false evidence against the Authority

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by alleging that he demanded bribe; since the appellant refused to give

evidence as requested by the plaintiff, the plaintiff had filed the false suit

against him; the learned trial Judge did not appreciate the rebuttal proof

produced by the appellant and wrongly decreed the suit; hence, the appeal

should be allowed.

8. The learned counsel for the respondent submitted that the appellant did

not deny his signature on Ex.A1 – promissory note; hence, the plaintiff is

entitled to the benefit of presumption in his favour under Section 118 of the

Negotiable Instruments Act, 1881; the attester of promissory note also

supported the case of the plaintiff and the appellant had won over the scribe

and he was examined as PW2; however, the consisting evidence of plaintiff

and defendant themselves would prove the veracity of the suit transactions

and hence, the judgment of the trial Court does not require any interference.

9. On the basis of the rival submissions, the following point for

consideration is found to be relevant for the purpose of this appeal:

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"Whether the judgment and decree of the trial Judge

in decreeing the suit is fair and proper?"

10. The suit has been filed for recovery of money basing upon the

promissory note – Ex.A1. The appellant did not deny the execution of the

promissory note and his signature. His only contention is that he did not

avail a sum of Rs.5,00,000/- (Rupees Five Lakhs only) as seen in Ex.A1,

but he had availed only a sum of Rs.50,000/- (Rupees Fifty Thousand only)

for his urgent expenses. Once the execution of Ex.A1 is not denied, the

respondent / plaintiff is entitled to get the initial presumption under Section

118 of the Negotiable Instruments Act in his favour. However, the

appellant / defendant has got the liberty to rebut the initial presumption and

prove that the promissory note was not supported by consideration as found

therein. The appellant was working as a Driver under respondent / plaintiff.

11. The specific allegation is that the respondent is involved in sand

smuggling and for which, he paid fine to the Government on various

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occasions. His further contention is that the respondent wanted to put him a

false allegation against the Tahsildar, who was instrumental in failing the

case against the respondent / plaintiff, for which, the appellant refused. In

order to show that in the year 2007, the respondent has paid a loan of Rs.

25,535/- (Rupees Twenty Five Thousand Five Hundred and Thirty Five

only) in connection with sand smuggling and his tractor was also seized.

The appellant / defendant attempted to connect this 2007 incident to the

loan transaction taken place in the year 2005. In order to substantiate the

allegation in Exs.B1 and B2, he was also not examined by the authorities of

the Government. Even if he could have proved that the plaintiff has paid

fine for the alleged sand smuggling, that cannot have any relevance on the

loan transaction between the plaintiff and the defendant.

12. Though it is specifically claimed by the appellant that the plaintiff

wanted to give him false allegation against one Tahsildar, by name,

Pichaiyah and he had also given a complaint against the said Tahsildar on

the compulsion of the respondents, the said files were not produced before

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this Court. The attestor of Ex.A1 – promissory note has stated only as to the

passing of the consideration in favour of the defendant as found in Ex.A1 –

promissory note. The attestors have spoken about the transaction in a clear

manner and the evidence was not demolished in the cross examination.

13. Before filing the suit, the plaintiff has sent a legal notice to the

defendant and that was received by him. The legal notice and the

acknowledgment were produced as Exs.A2 and A3. Though the appellant

received notice, he did not choose to send any reply by alleging his defence

which he had taken in the suit. Though the initial presumption that would be

drawn in favour of the respondent / plaintiff is subjected to rebuttal proof,

that would be given by the defendant, the rebuttal proof should be strong

enough to neutralise the initial presumption. Excepting the examination of

scribe of the promissory note as DW2, no other evidence is produced by the

appellant to disprove the case of the plaintiff. Even DW2 did not deny his

participation in writing the promissory note, though he has stated that he

had written the promissory note subsequent to the transaction. During cross-

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examination of DW2, he has admitted about his scribing of the promissory

note. Though he has stated that he had written the promissory note after a

week from 30.09.2005 by putting the date on 30.09.2005, the fact was not

informed by him to the appellant. In his evidence itself, he has stated that he

did not inform the appellant about the alleged filing of the promissory note

which contains the signatory of the appellant. DW2 had filled up the

promissory note as per the whims and fancies of the respondent, he would

have chosen to pass information to appellant whose signature is found in the

promissory note. So, the evidence of DW2 is found to be unreliable. As per

the evidence of DW2, the appellant also involved in sand business. DW2 is

involved in construction work. So, it is possible that DW2 would have got

a business connection with the appellant and chosen to give evidence in his

favour.

14. Even though the appellant has taken specific defence of alleging motive,

the said motive was not substantiated and proved before the Court. Since the

appellant did not rebut the initial presumption satisfactorily, the initial

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presumption would culminate into the conclusive proof. The learned trial

Judge has rightly appreciated the evidence on record and decreed the suit as

prayed for. Hence, I do not find any reason for interference. Thus, the point

is answered.

15. It is seen that the learned trial Judge has awarded interest at the rate of

9% per annum from the date of the suit till the date of the recovery. It is

seen that the appellant is involved in sand business even as per the evidence

of his own witness DW2. In Ex.A1 also, it is found that, the loan was

availed by the appellant for the purpose of his business necessities.

Considering the less rate of interest now existing, I feel that indulgence may

be shown for modifying the interest alone.

16. In the result, this Appeal Suit is disposed of and the judgment and

decree in O.S. No. 121 of 2007 on the file of the Principal District Court,

Virudhunagar, dated 28.08.2014, is hereby modified to the effect that the

suit is decreed along with interest at the rate of 7.5% per annum from the

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date of filing of the suit till the date of decree and 6% per annum from the

date of decree till the date of realization.

During the pendency of the first appeal proceedings, as per the direction of

this Court, the appellant has remitted a sum of Rs.2,50,000/- (Rupees Two

Lakhs Fifty Thousand only) in the Civil Court account. The respondent /

plaintiff is at liberty to withdraw the said amount by making proper

applications and the time for payment is three months. No costs.

Consequently, connected Miscellaneous Petition is closed.

07.04.2022 Index : Yes / No Speaking Order : Yes / No vji To

1. The learned Principal District Judge Virudhunagar.

2. The Section Officer, VR Section, Madurai Bench of Madras High Court, Madurai.

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https://www.mhc.tn.gov.in/judis A.S. (MD) No. 47 of 2017

R.N.MANJULA, J.

vji

A.S. (MD) No. 47 of 2017 and C.M.P. (MD) No. 2665 of 2017

07.04.2022

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