Madras High Court
M.E.Arun vs R.Sellamuthu on 18 April, 2022
SA.No.433 of 2013
In the High Court of Judicature at Madras
Dated : 18/4/2022
Coram :
The Honourable Mr.Justice N.ANAND VENKATESH
Second Appeal No.433 of 2013
& MP.Nos.1 and 2 of 2013
1.M.E.Arun
2.M.N.Saraswathi ...Appellants
Vs
R.Sellamuthu ...Respondent
APPEAL under Section 100 of the Civil Procedure Code against
the judgment and decree dated 07.12.2012 in A.S.No.94 of 2012 on
the file of the Principal District and Sessions Judge, Erode reversing
the judgment and decree dated 04.8.2012 in O.S.No.47 of 2009 on
the file of the Principal Subordinate Court, Erode.
For Appellants : Mr.R.Sankarasubbu
For Respondent : Mr.V.Anandhamoorthy
JUDGMENT
The defendants are the appellants in this second appeal.
2. The respondent - plaintiff filed a suit seeking for the relief of
recovery of money along with interest against the defendants.
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SA.No.433 of 2013
3. The case of the plaintiff is that defendants borrowed a sum of
Rs.1 lakh on 25.6.2006 towards urgent family expenses. They also
executed a promissory note dated 25.6.2006, marked as Ex.A1, in
favour of the plaintiff.
4. The grievance of the plaintiff was that the defendants failed to
pay the interest and the principal in spite of repeated demands and
requests made by the plaintiff. According to the plaintiff, the first
defendant was working as a surveyor in the Survey Department at
Erode and the second defendant, who is the wife of the first defendant,
was working as a Superintendent in the Survey Department at Erode
and they were possessed with sufficient income to repay back the loan
to the plaintiff. Since the amount was not repaid, the suit came to be
filed seeking for the relief of recovery of money.
5. The defendants filed a written statement and denied the
entire loan transaction. According to the defendants, the plaintiff is not
known to them and one P.Mathiyan had connived along with the
plaintiff due to previous enmity with the defendants and had made the
plaintiff file the suit with a false claim.
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SA.No.433 of 2013
6. The Trial Court, on considering the facts and circumstances of
the case and on appreciation of the oral and documentary evidence,
came to the conclusion that the very promissory note that is said to
have been executed by the first defendant was doubtful and there was
a lot of discrepancy in the claim made by the plaintiff and accordingly,
the suit came to be dismissed through judgment and decree dated
04.8.2012.
7. Aggrieved by the same, the plaintiff filed an appeal in
A.S.No.94 of 2012 before the Principal District and Sessions Court,
Erode. The Lower Appellate Court, on re-appreciation of the oral and
documentary evidence and after considering the findings of the Trial
Court, was pleased to allow the appeal through judgment and decree
dated 07.12.2012 and thereby the judgment and decree of the Trial
Court were set aside and the suit was decreed as prayed for.
Aggrieved by the same, the defendants filed this second appeal.
8. This Court heard Mr.R.Sankarasubbu, learned counsel for the
appellants and Mr.V.Anandhamoorthy, learned counsel appearing for
the respondent. This Court carefully went through the materials
available on record and the findings rendered by both the Courts
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SA.No.433 of 2013
below.
9. The respondent - plaintiff, in order to prove the execution of
the pronote, marked as Ex.A1, examined himself as PW1 and also
examined PW2 and PW3, who are attesting witnesses.
10. The Lower Appellate Court, on considering the oral evidence
of PW1 to PW3, came to a categorical conclusion that the defendants
signed the pronote and the execution of the pronote has been proved.
The Lower Appellate Court also took into consideration the defense
raised by the defendants as if the suit was filed at the behest of the
said P.Mathiyan. The Lower Appellate Court found that except for the
ipse dixit of the defendants, there was absolutely no proof to show
that the suit was filed by the plaintiff on the instigation of the said
P.Mathiyan. The Lower Appellate Court rightly applied the statutory
presumption available under Section 118 of the Negotiable
Instruments Act and found that the defendants have not discharged
the burden. The defendants also did not take any steps to send the
disputed pronote for expert opinion, if they are very sure that the
signature found therein is not their signature.
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SA.No.433 of 2013
11. Unfortunately, the Trial Court took upon itself the task of
comparing the signatures and it was rightly commented upon by the
Lower Appellate Court and the conclusion arrived at by the Trial Court
in that regard was set aside. The Lower Appellate Court, after taking
note of the various decisions of the Hon'ble Supreme Court rendered
under Section 118 of the Negotiable Instruments Act, found that the
Court has to necessarily raise a presumption in favour of the plaintiff,
since the execution of the pronote has been proved. After rendering
such a finding, the Lower Appellate Court came to the conclusion that
the defendants did not discharge the burden that was cast upon them
and as a consequence, the claim made by the plaintiff must be taken
to have been proved.
12. The Lower Appellate Court had assigned cogent reasons
while reversing the findings of the Trial Court and it is in line with
Order XLI Rule 31 of the Civil Procedure Code. This Court does not find
any perversity in the findings rendered by the Lower Appellate Court.
In any event, this Court does not find any substantial question of law
involved in the present second appeal.
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SA.No.433 of 2013
13. In the result, the second appeal stands dismissed with costs.
Consequently, the connected MPs are also dismissed.
/4/2022
Index : Yes (or) No
To
1.The Principal District and Sessions Judge, Erode
2.The Principal Subordinate Court, Erode.
RS
https://www.mhc.tn.gov.in/judis
SA.No.433 of 2013
N.ANAND VENKATESH,J
RS
Pre-delivery judgment in
SA.No.433 of 2013 &
MP.Nos.1 and 2 of 2013
18/4/2022
https://www.mhc.tn.gov.in/judis
