Madras High Court
K.P. Subramaniam vs M. Palanisamy on 7 February, 2022
S.A.No.1236 of 2010
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07.02.2022
CORAM
THE HONOURABLE MRS. JUSTICE R.HEMALATHA
S.A.No.1236 of 2010
K.P. Subramaniam ...Appellant
Vs.
M. Palanisamy ... Respondent
Prayer : Second Appeal filed under Section 100 CPC, 1908 against the
decree and judgment dated 09.01.2009 passed in A.S. No.51 of 2008, on
the file of the Additional District and Sessions Judge, Dharapuram,
reversing the decree and judgment dated 03.03.2008 passed in
O.S. No.11 of 1999, on the file of the Subordinate Judge, Dharapuram.
For Appellant : Mr. R. Asokan
For Respondent : Mr.A. Tamilvanan
JUDGMENT
The appellant K.P. Subramaniam is the plaintiff in O.S. No.11
of 1999 on the file of the Subordinate Court, Dharapuram. He filed the
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S.A.No.1236 of 2010
suit for recovery of a sum of Rs.3,36,800/- together with interest @ 12%
per annum from M. Palanisamy (respondent/defendant) due on a
promissory note.
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 plaintiff is that the defendant borrowed a
sum of Rs.3,00,000/- from him on 05.01.1998 and executed a promissory
note Ex.A1 promising to repay the principal together with interest @
12% per annum on demand by the plaintiff or to his order. The further
case of the plaintiff is that in spite of repeated demands made by him, the
defendant did not come forward to make good the payment and therefore,
he filed the suit for recovery of the amount due under the promissory
note before the Subordinate Judge, Dharapuram.
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S.A.No.1236 of 2010
4. The defendant filed a written statement contending that he
borrowed a sum of Rs.80,000/- only from the plaintiff and that he paid
interest upto October 1998. According to him, the plaintiff demanded
him to pay the entire amount due under the promissory note and that as
he could not pay the entire amount as demanded by the plaintiff, the
plaintiff filled one of the blank promissory notes signed by the defendant
and filed the suit. He also filed an additional written statement
contending that the defendant executed a promissory note only in favour
of Jai Karthik Finance during the year 1995-96 where the plaintiff was
employed as a manager. His further contention is that the cause of action
as alleged in the plaint is false and the plaintiff did not have any house at
Kozumangulli village where the suit promissory note was executed.
5. The trial court, based on these pleadings framed necessary
issues and decreed the suit in favour of the plaintiff vide its decree and
judgment dated 03.03.2008 and directed the defendant to pay a sum of
Rs.3,36,800/- together with interest @ 9% per annum from the date of
plaint till the date of decree and thereafter @ 6% per annum till the date
of realisation.
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S.A.No.1236 of 2010
6. Aggrieved over the same, the defendant filed an appeal in
A.S. No.51/2008 before the Additional District and Sessions Court,
Erode. The learned Additional District Judge, Erode, held that since the
plaintiff did not prove that he owns any house at Kozumangulli village,
the Subordinate Court, Dharapuram, does not have territorial jurisdiction
to try the suit. However, the learned Additional District Judge,
Dharapuram, did not render any finding with regard to the execution of
the promissory note and passing of consideration and dismissed the suit
filed by the plaintiff vide his decree and judgment dated 09.01.2009 in
A.S. No.51 of 2008.
7. Now the present second appeal is filed by the plaintiff on the
following substantial questions of law.
1) When the defendant admitted borrowal of Rs.80,000/- and paid
interest upto December, 1998 in his original written statement
whether the court below was right in holding that the defendant
did not borrow any amount from the plaintiff?
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S.A.No.1236 of 2010
2) When the loan transaction and the execution of the suit promissory
note at Kozumangulli were established by the plaintiff by
examining witnesses whether the court below was right in holding
that the loan transaction did not take place at Kozumangulli
village and the Sub-Court, Dharapuram had not territorial
jurisdiction to try the suit?
3) Whether the lower appellate court was right in holding that the
appellant failed to prove his residence at the time of the loan
transaction when the defendant did not dispute the same in his
original written statement?
4) Whether the lower appellate court was right in relying upon the
additional written statement which was filed to fill up the lacuna
after examination of the witnesses and especially taking a contra
stand to the original written statement?
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S.A.No.1236 of 2010
8. Heard Mr. R. Asokan, learned counsel for the appellant and
Mr. A. Tamilvanan, learned counsel for the respondent.
9. At the outset it may be observed that in the promissory note,
the defendant had clearly mentioned that he obtained a sum of
Rs.3,00,000/- from the plaintiff K.P. Subramaniam, residing at
Kozumangulli village, Dharapuram Taluk, Erode District. Nowhere in
the promissory note it is stated that the defendant executed the
promissory note in favour of Jai Karthik Finance, which is located at
Tirupur. It is also pertinent to mention that in the original written
statement,the defendant did not contend that the suit promissory note was
not executed at Kozumangulli village and executed only at Thirupur,
where Jai Karthik Finance is located. Only in the additional written
statement which was filed after 8 years of filing of the original suit, such
a plea has been taken by the defendant. In any event the additional
written statement has been received by the trial court. The learned First
Additional District Judge had observed that the plaintiff did not adduce
any acceptable oral and documentary evidence to show that he owns a
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S.A.No.1236 of 2010
house at Kozhumanguli village and also did not produce any property tax
receipt, electricity bills, etc. He therefore, concluded that the Sub-court,
Dharapuram, does not have jurisdiction to entertain the suit filed by the
plaintiff and dismissed the suit by allowing the first appeal.
10. Mr.A. Tamilvanan, learned counsel for the respondent
contended that as per Order 7 Rule 10 of Code of Civil Procedure, the
plaint should be returned to the plaintiff to be presented before the proper
court. In the instant case, as already observed, even in the promissory
note Ex.A1, it is clearly indicated that it was executed at Kozhumanguli
village. On the side of the plaintiff, Arumugam (P.W.2), the scribe of the
promissory note, Damodharan (P.W.3), one of the attestors were
examined and both of them had deposed that the suit promissory note
Ex.A1 was executed at Kozumangulli village. Nothing useful was
suggested to P.W.2 and P.W.3 during the course of cross examination to
discredit or disbelieve their evidence.
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S.A.No.1236 of 2010
Section 20 of Code of Civil Procedure reads as follows:
20. Other suits to be instituted where defendants
reside or cause of action arises.
Subject to the limitations aforesaid, every suit shall be instituted in a
Court within the local limits of whose jurisdiction
(a) the defendant, or each of the defendants where
there are more than one, at the time of the
commencement of the suit, actually and voluntarily
resides, or carries on business, or personally works for
gain; or
(b) any of the defendants, where there are more than
one, at the time of the commencement of the suit,
actually and voluntarily resides, or carries on business,
or personally works for gain, provided that in such
case either the leave of the Court is given, or the
defendants who do not reside, or carry on business, or
personally works for gain, as aforesaid, acquiesce in
such institution; or
(c)The cause of action, wholly or in part, arises.
Therefore, as per Ex.A1, the cause of action arose within the jurisdiction
of the Subordinate Court, Dharapuram and in such circumstances, the
observation of the first appellate court that the Subordinate Court,
Dharapuram, does not have jurisdiction to entertain the plaint filed by the
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S.A.No.1236 of 2010
plaintiff is totally wrong. Even assuming that Dharapuram court does not
have jurisdiction, the first appellate court should have returned the plaint
to the plaintiff for presenting the same before the proper court. The first
appellate court did not also give its finding with regard to the merits of
the case. The promissory note Ex.A1 coupled with the evidence of
P.W.1 to P.W.3 shows that the promissory note was executed only at
Kozumangulli village and in such circumstances, the suit filed by the
plaintiff before the Subordiante Court, Dharapuram, is perfectly right and
the substantial questions of law are answered accordingly.
11. Since the first appellate court did not give its finding with
regard to the merits of the case, this case has got to be remitted back to
the first appellate court with instructions to go into the merits of the case
and decide it in accordance with law. The suit was filed in the year 1999
and therefore, the first appellate Court is directed to dispose of the
appeal suit in A.S. No.51 of 2008 within a period of three months form
the date of receipt of a copy of this order.
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S.A.No.1236 of 2010
12. In the result,
i. the second appeal is allowed partly and the case is
remitted back to the first appellate court with
instructions to go into merits of the case in
A.S. No.51/2008 according to law. No costs.
ii. the decree and judgment dated 09.01.2009 passed in
A.S. No.51 of 2008, on the file of the Additional
District and Sessions Judge, Dharapuram, is set aside.
iii. The Additional District and Sessions Judge,
Dharapuram, is directed to dispose of the appeal suit
in A.S. No.51 of 2008 on merits within a period of
three months from the date of receipt of a copy of this
order.
07.02.2022
Index: Yes/No
Internet: Yes/No
Speaking/Non-Speaking order
bga
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S.A.No.1236 of 2010
To
1. The Additional District and Sessions Judge, Dharapuram,
2. The Subordiante Judge, Dharapuram
3. The Section Officer, VR Section, High Court, Madras.
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S.A.No.1236 of 2010
R. HEMALATHA, J.
bga
S.A.No .1236 of 2010
07.02.2022
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