Madras High Court
K.Periyasamy vs P.Saroja on 3 January, 2022
S.A(MD)No.508 of 2015
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 03.01.2022
CORAM
THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
S.A(MD)No.508 of 2015
K.Periyasamy ... Appellant/Appellant/Defendant
Vs.
1.P.Saroja
2.P.Nagalakshmi
3.P.Kanagaraj ... Respondents/Respondents/Plaintiffs 2 to 4
Prayer : Second Appeal filed under Section 100 of the Code of Civil
Procedure against the judgment and decree, dated 04.12.2014 passed in
A.S.No.23 of 2012, on the file of the Additional District Court,
Dindigul, confirming the judgment and decree, dated 16.04.2012
passed in O.S.No.171 of 2004 on the file of the Principal Subordinate
Court, Dindigul.
For Appellant : Mr.B.Saravanan
For Respondents : Mr.M.R.Sreenivasan
for Mr.R.Nandakumar
1/15
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S.A(MD)No.508 of 2015
JUDGMENT
The second appeal is directed against the concurrent
Judgments and decrees, passed in O.S.No.171 of 2004 by the Principal
Subordinate Court, Dindigul and in A.S.No.23 of 2012, passed by the
Additional District Court, Dindigul.
2. For the sake of convenience, the parties are referred to
herein, as per their own ranking as before the Trial Court.
3.The respondents herein as plaintiffs 2 to 4 have
instituted a suit in O.S.No.171 of 2004 on the file of the trial Court for
recovery of money of a sum of Rs.3,40,750/- along with interest based
on a pro-note, dated 28.05.2001, wherein, the appellant has been
shown as the defendant.
4.In the plaint, it is averred that the defendant approached
the deceased first plaintiff on 28.05.2001 and obtained a sum of
Rs.2,50,000/- with interest at the rate of 1% for a sum of Rs.100/- per
month, for his agricultural expenses and executed a promissory note on
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S.A(MD)No.508 of 2015
the same day. Due to non-payment of the said amount, the first
plaintiff has sent a legal notice on 16.12.2002. Though the defendant
had received the notice, he had not repaid the amount. Hence, the suit.
Pending suit the first plaintiff died and his legal heirs were impleaded
as plaintiffs 2 to 4.
5.In the written statement filed on the side of the
defendant, it is averred that the defendant never borrowed a sum of
Rs.2,50,000/- from the plaintiff nor executed the suit promissory note
dated 28.05.2001. The defendant's son Sakthivel had borrowed loan
from Pavunan @ Palanisamy and others and as he could not repay the
amount and he filed an insolvency petition in I.A.No.1 of 2002 on the
file of the Subordinate Court, Dindigul. Due to the enmity, at
7.30 p.m., on 07.02.2002, Pavunan @ Palanisamy and two others
kidnapped the defendant in a Car and threatened him with dire
consequences and forcibly obtained his signature and left thumb
impression (LTI) in many blank papers and stamp papers and snatched
away Rs.10,000/- from him. Further, the defendant lodged a complaint
before the Oddanchatram Police Station and a case has been registered
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S.A(MD)No.508 of 2015
against Pavunan @ Palanisamy and two others. So the defendant
issued a warning notice in Daily Thanthi on 08.02.2002. The
defendant has filed a suit in O.S.No.171 of 2004 against three persons
for declaration that those persons are not entitled to trump up
instrument on the blank papers and stamp papers bearing left thumb
impression and the signatures of the defendant obtained by coercion
and intimidation. The first plaintiff being the co-brother of Pavunan @
Palanisamy has been set up to institute a suit on the basis of the forged
suit promissory note. The suit promissory note is not supported by any
consideration. There is no cause of action for filing the suit. The suit
is devoid of merits and prayed for dismissal of the same.
6. Before the trial Court, on the side of the plaintiffs,
P.W.1 to P.W.3 were examined and Exs.A1 to A3 were marked. On the
side of the defendant, one Palanisay was examined as D.W.1 and
Exs.B.1 and B.2 were marked.
7. On the basis of the rival pleadings on either side, the
trial Court has framed necessary issues and after evaluating both the
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S.A(MD)No.508 of 2015
oral and documentary evidence, has decreed the suit in favour of the
respondents / plaintiffs and directed the defendant to pay a sum of
Rs.3,40,750/- with 6% per annum from the date of plaint, till the date
of realization for the principal amount of Rs.2,50,000/-.
8. Aggrieved by the Judgment and decree passed by the
trial Court, the defendant as appellant, had filed an Appeal Suit in
A.S.No.23 of 2012. The first appellate Court, after hearing both sides
and upon reappraising the evidence available on record, has dismissed
the appeal and confirmed the Judgment and decree passed by the trial
Court.
9.Challenging the said concurrent judgments and decrees
passed by the Courts below, the present Second Appeal has been
preferred at the instance of the defendant as appellant.
10. Heard the learned counsel for the appellant and the
learned counsel appearing for the respondents and perused the
materials available on record.
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S.A(MD)No.508 of 2015
11. At the time of admitting the present second appeal, the
following substantial question of law has been framed for
consideration:
"a) Whether the Courts below are right in
decreeing the suit especially when the witness to the
promissory note has not supported the case of the
plaintiffs ?
b) Whether the Courts below are right in
decreeing the suit when P.W.1 did not speak anything
as to the passing of consideration ?
c) Whether the Courts below are right in not
considering the pendency of criminal case with regard
to the defence of the defendant ?
12.The learned counsel appearing for the
appellant/defendant contended that both the Courts below have failed
to consider that the appellant was kidnapped by Povunan @
Palanisamy and others and obtained signature and left thump
impression of the defendant under threat and intimidation and in
respect of the said occurrence, a criminal case in C.C.No.873 of 2010
is pending before the Court below; the said Povunan @ Palanisamy,
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S.A(MD)No.508 of 2015
who is the co-brother of the deceased first plaintiff was present at the
time of cross examination of P.W.1 and the same has also been
admitted by P.W.1; the respondents / plaintiffs have not proved the
passing of consideration and failed to discharge their burden and
therefore, the defendant prayed for allowing the Second Appeal.
13.The learned counsel appearing for the
respondents/plaintiffs 2 to 4 would submit that the first Appellate
Court, after analysing the documents available on record, has rightly
allowed the Appeal in favour of the respondents/plaintiffs 2 to 4 and
prayed for dismissal of the Second Appeal.
14.This Court paid its anxious consideration to the rival
submissions made and also carefully perused the materials placed on
record.
15.On going through the documents, it is seen that during
the pendency of the appeal, the defendant had filed I.A.No.10 of 2014
for receiving additional documents. The appellant had admitted his
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S.A(MD)No.508 of 2015
signatures in Ex.A.1 promissory note and has taken a defence plea that
he was kidnapped by one Pavunan @ Palanisamy and two others and
obtained his signature and left thump impression in stamp papers by
coercion and threat and the appellant had immediately lodged a
complaint in this regard and a charge sheet has been filed and the
appellant has produced additional documents based on the complaint
filed by him and other connected records to substantiate his plea. The
respondents / plaintiffs 2 to 4 have not raised any serious objection to
mark those documents on the side of the appellant. The defendant has
explained why this documents could not be filed before the trial Court
and therefore, the said petition seeking permission to mark additional
documents was allowed and the said documents were marked as
Ex.B.3 to B.16.
16. The case of the plaintiffs is that originally the
deceased Palanisamy, as plaintiff has filed a suit in O.S.No.171 of
2004 against the defendant stating that the defendant has borrowed a
sum of Rs.2,50,000/- as a loan and executed a suit promissory note-
Ex.A.1 dated 28.05.2001. In spite of repeated demands made by the
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S.A(MD)No.508 of 2015
respondents, the defendant failed to repay the loan amount and hence,
the deceased Palanisamy has issued a legal notice on 06.12.2002 to
settle the entire loan amount and the defendant has also sent a reply
notice denying the borrowal of loan amount and execution of
promissory note. Therefore, the said Palanisamy was constrained to
file a suit for recovery of money based on the promissory note.
Pending the suit, Palanisamy died and his legal heirs were impleaded
as Plaintiffs 2 to 4, who are the respondents in this Second Appeal.
17. The first plaintiff's son was examined as P.W.1 and he
witnessed the borrowal of Rs.2,50,000/- by the defendant from his
father and execution of Ex.A.1 promissory note dated 28.05.2001. At
the time of execution of Ex.A.1, he was studying +2 in Higher
Secondary School, Oddanchatram and Ex.A.1 was executed around
12.00 noon at his residence and in his presence a sum of
Rs.2,50,000/- was handed over to the defendant by his father. The
entire evidence of the chief and cross examination of P.W.1 would
show that the first plaintiff's son was present along with his father at
the time of lending money and he has proved his presence at the time.
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S.A(MD)No.508 of 2015
The attestor - P.W.2, also deposed that he has also seen the execution
and payment of money. Hence, both the Courts below have come to
the conclusion as per the evidence of P.W.1 and P.W.2 and other
evidence, the defendant has obtained a loan amount of Rs.2,50,000/-
from the deceased Palanisamy by executing Ex.A.1-promissory note
and the appellant has also acknowledged the same.
18.The only contention raised by the defendant is that his
signature was obtained in Ex.A.1 only by coercion and threat and he
did not borrow any amount from the deceased Palanisamy as alleged.
The co-brother of the deceased Palanisamy has obtained the signature
of the defendant in the blank promissory note by kidnapping him and it
is also not supported by any consideration. Immediately the defendant
has filed a suit in O.S.No.689 of 2003 for declaration and the same was
also dismissed by the trial Court and aggrieved over the same, the
defendant has preferred an appeal in A.S.No.22 of 2012 and the same
was also dismissed holding that the plea of the defendant that he was
kidnapped and his signature in Ex.A.1 promissory note was obtained
on force, as unsustainable.
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S.A(MD)No.508 of 2015
19. According to the defendant, his son Sakthivel had
borrowed loan from Pavunan @ Palanisamy and others and as he could
not repay the amount and he filed an insolvency petition in I.A.No.1 of
2002 on the file of the Subordinate Court, Dindigul. The alleged
kidnapping, registration of FIR, filing of charge sheet, paper
publication, certified copies of depositions and also the decree passed
in O.S.No.369 of 2008 are not helpful in substantiating his case. The
additional documents already received, did not help the defendant in
proving that the alleged Ex.A.1 is an manipulated document or forged
one.
20. Further the defendant and his son are in the habit of
obtaining loan from several persons and when they could not repay the
said amount several suits have been filed against them for recovery of
money. The defendant's son has already filed an insolvency petition to
declare him as insolvent. Further, to defeat the rights of plaintiffs
2 to 4, the defendant has taken a precautionary plea, as if he was
kidnapped under coercion and threat and obtained his signature and
left thumb impression in blank stamp papers.
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S.A(MD)No.508 of 2015
21.Further the defendant was successful in registering a
criminal case against the plaintiffs and mere filing of a criminal
complaint alleging that he was kidnapped and obtained signature and
left thump impression in the blank papers are not sufficient to prove
the case of the defendant. It is pertinent to note that the defendant has
not made a mention in the complaint or in his deposition that under
coercion and threat he affixed his signature in the blank promissory
notes. However, the plaintiffs 2 to 4 have proved that the deceased
Palanisamy has lent a sum of Rs.2,50,000/- as demanded by the
defendant and Ex.A.1 promissory note was executed for such purpose.
22.From the above facts, it is seen that the defendant has
not proved his case by let in appropriate and cogent evidence.
However, the plaintiffs 2 to 4 have proved their case that the defendant
has executed a promissory note-Ex.A.1, for borrowing a sum of
Rs.2,50,000/- from the first plaintiff, who is the father of the plaintiffs
2 to 4 for his agricultural expenses. Therefore, this Court is of the
view that the appellant / defendant has not made out a prima facie case
as prayed for by him and hence, the substantial questions of law are
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S.A(MD)No.508 of 2015
answered against the appellant / defendant and in favour of the
respondents/plaintiffs 2 to 4.
23. For the reasons aforesaid, this Court is of the
considered view that there is no illegality or infirmity in the well-
considered judgments and decrees rendered by the Courts below and
accordingly, the Second Appeal is liable to be dismissed.
24. In the result, the Second Appeal is dismissed. No
costs.
03.01.2022
Index : Yes/No
Internet : Yes/No
rm
Note : In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may
be utilized for official purposes, but, ensuring that
the copy of the order that is presented is the correct
copy, shall be the responsibility of the
advocate/litigant concerned.
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S.A(MD)No.508 of 2015
To
1.The Additional District Court,
Dindigul.
2.The Principal Subordinate Court,
Dindigul.
3.The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
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S.A(MD)No.508 of 2015
V.BHAVANI SUBBAROYAN, J.
rm
Judgment made in
S.A(MD)No.508 of 2015
03.01.2022
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