Madras High Court
Rabel vs E. Soundararajan on 3 January, 2022
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATE: 03. 01.2022
CORAM
THE HON'BLE MRS.JUSTICE V. BHAVANI SUBBAROYAN
S.A.(MD) No.593 of 2020
and
CMP(MD) No.6340 of 2020
Rabel ...Appellant
vs.
E. Soundararajan ...Respondent
Second Appeal filed under Section 100 of CPC against the
Judgment and Decree passed in A.S. No.101 of 2018 dated
29.07.2019 on the file of the III Additional District Court, Tirunelveli
confirming the judgment and decree passed in O.S. No.160 of 2016
dated 03.08.2018 on the file of the Sub Court, Sankarankovil.
For Appellant : Mr.H.Arumugam
For Respondent :Mr.F.X.Eugene
JUDGMENT
The present second appeal has been filed challenging the
judgment and decree passed in A.S. No.101 of 2018 dated 29.07.2019
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on the file of the III Additional District Court, Tirunelveli confirming the
judgment and decree passed in O.S. No.160 of 2016 dated 03.08.2018
on the file of the Sub Court, Sankarankovil.
2. For the sake of convenience, the parties are referred to as, as
described before the trial Court.
3.The case of the plaintiff, as per the averments made in he
plaint, in short, reads as follows :
On 14.12.2013. the defendant borrowed a sum of Rs.4,00,000/-
from the plaintiff for his family expenses and also executed a
promissory note in favour of the plaintiff, agreeing to pay the said
amount on demand with interest on the principal sum at the rate of
one rupee per hundred rupee per month. After borrowing the same,
the defendant failed to repay the same inspite of several requests.
Therefore, the plaintiff issued a legal notice dated 22.11.2016, calling
upon the plaintiff to repay the amount due, as per the promissroy
note executed dated 14.12.2012. On receipt of legal notice, the
defendant had issued a reply notice dated 25.11.2016 containing
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incorrect and false details. The averments and allegations set out in
the reply notice with regard to the alleged contract of sale pertaining
to the property of the defendant family is utter false. Hence, the
plaintiff filed the suit for recovery of money.
4. Resisting the claim made by the plaintiff, the defendant filed
written statement contenting among otherthings that there is no
execution of promissory note. After the death of defendant's father
the plainfitff expressed his desire to purchase the property of the
platiniff’s father measuring an extent of 28 cents in S.FNo.102/2,
Vagaikulam for a sale consideration of Rs.2,50,000/-. When the
defendant told the plaintiff that only after getting the release deed
from his mother and sister, the sale deed can be executed. Unles and
until they release it, he cannot execute sale, as it is a joint family
property. Further, he has informed that it may take more than one or
two year to have the sale deed executed and the plaintiff executed his
willinginess to pay advance amount to the defendant . As the plaintiff
was agreed to interest such claim the defendant was agreed to sell the
property for a consideration of Rs.2,50,000/- and the plaintiff paid a
sum of Rs.1,90,000/- as advance amount and the defendant who had
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received the money as a security has executed unfilled promissory
note in favour of the plaintiff for which the sale deed is executed.
Subsequently on 30.09.2014 the defendant's sister and mother
executed a released deed and the defendant informed him to come
and pay the remaining amount so that settlement deed can be
executed. After receipt of entire consideration he also handed over the
original documents and title to the plaintiff, but the plaintiff did not
come forward to perform as per contract by paying the amount and
get the sale deed executed. Since many buyers are coming the
defendant insisted the plaintiff to honour the said agreement but the
plaintiff was developing enmity over the defendant had fabricated the
suit promissory notes with the help of his associates by utilizing the
signature of the defendant found in the unfilled promissory note
executed by the defendant. The defendant has not borrowed
Rs. 4,00,000/- from the plaintiff through the suit promissory note. For
the legal notice issued by the plaintiff the defendant has sent a suitable
reply notice. The defendant is ready to repay the advance of
Rs.1,90,000/- received by him from the plaintiff and the cause of
action set out in the plaint is an imaginary one,hence prays for
dismissal of the suit.
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5. The trial Court has framed four issues for determination of the
suit, as under:
a) Whether it is true that the defendant
had borrowed Rs.400000/- on 14.12.2013 from
the plaintiff and executed the suit promissory
note?
b)Whether it is true that the suit
promissory note is a forged and fabricated
document?
c) Whether the plaintiff is entitled to the
suit claim?
d)To what relief the plaintiff is entitled to?
6. On the side of the the plaintiff, plaintiff himself was examined
as PW. 1 and four documents were marked as Exs. A1 to A4 and one
Peter Prabakaran was examined as PW.2. On the side of the defendant
defendant himself was examined as DW.1 and two documents were
marked as Exs.B.1 and B2.
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7.On analysis of the oral and documentary evidence, the Trial
Court had dismissed the suit. Aggrieved by the same, the plaintiff has
preferred an appeal in A.S. No.101 of 2018, on the file of the learned
III Additional District Judge, Tirunelveli.
8. The first appellate court, after considering the oral and
documentary evidence of the parties, had dismissed the appeal suit.
Aggrieved by the Judgment and decree passed by the first appellate
Court, the present Second Appeal has been filed by the plaintiff raising
various grounds.
9. The learned counsel appearing for the appellant / plaintiff
would vehemently contend that the Courts below failed to consider
that the defendant in his reply notice did not dispute the signature in
the pro-note but taken a plea in the written statement as if with the
help of his signature available in the unfilled pronote given to the
plaintiff in pursuant to the sale agreement, the pronote in dispute was
forged. Thus, it is very clear that the defendant has categorically
admitted the signature in the pronote and has not denied the same.
Further, his plea of handing over of alleged pronote in pursuant to the
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sale agreement is not proved by any evidence. The Courts below
failed to consider that even assuming the plea of defendant that he
had given the signed unfilled pronote, the plaintiff can always have
liberty to fill the content as per Section 24 of Negotiable Instruments
Act, 1881 and thus, it will not help the defendant in any way. If at all
the defendant has really given the unfilled pronote, as pleaded by him
towards security for the advance amount, in pursuant to the sale
agreement, he would have come forward to pay the amount and
cancel the agreement sale but he has not done so, which the courts
below have not appreciated in proper perspective.
10. The learned counsel for the appellant relied on the Judgment
of this Court in A.R.Mohammed Jalaludeen and another .vs. V.S.
Dhakshinamoorthy reported in (2014)8 MLJ 413, wherein it has
been held as follows:-
“22. Law is law. Whether we like it not, we
have to take it as it is. The British invented the
Negotiable Instruments Act and it authorizes
execution of blank promissory notes. Actually it is
intended to augment the commercial transactions.
This is recognized in Section 20 of the Negotiable
Instruments Act. It authorizes the holder of the
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instrument to fill up the blanks with amount upto
the value of the stamp. This position of law has
been validly taken advantage of by the learned
counsel for the respondent to thrash down the plea
of the appellants that they have signed in blank
promissory note.
23. Their signature in Ex.A.6 has been
admitted by the defendants. With regard to the
passing of the consideration, evidence has been let
in by the plaintiff. In such circumstance, there is
no independent evidence except the evidence of
D.W.1, which is not sufficient enough to rebut the
presumption arising under Section 118 of the
Negotiable Instruments Act.
25. Ex.B.1 letter reads the travails of a
lender. There was no reference in Ex.B.1 that it
has been written in connection with the promissory
note debt. Ex.B.1 would not absolve the
defendants from their very duty to rebut the
presumption arose under Section 118 of the
Negotiable Instruments Act.”
11. The learned counsel for the appellant invited the attention of
this Court to the judgment of this Court in C.Sriraman.vs. P.Suseela
and others reported in (2020 (1) MWN (Civil) 500), wherein it has
been held as follows :
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“ 18. It is also to be pointed out that in the
written statement, the first defendant has stated
that the plaintiff was running a Finance Firm at
Pernampet several years ago and with the help of
the documents available in the said Finance Firm,
the plaintiff has fabricated the suit documents and
filed the false suit. So, according to the first
defendant, her husband had left certain documents
with the aforesaid Finance Firm and only with the
help of the said documents, the suit promissory
note was fabricated. In such a case, it has to be
presumed that the first defendant's husband
G.Pandurangan would have executed the suit
promissory note. Therefore, the burden is upon the
defendants that the suit promissory note was given
by the deceased G.Pandurangan only in the said
Finance Firm, but the defendants did not adduce
any evidence to substantiate the aforesaid plea.
Further, if really the said G.Pandurangan had not
executed the suit promissory note in favour of the
plaintiff, the first defendant would have sent a reply
to Ex.A2 notice. Further, she would have entered
into the witness box and subjected herself for cross
examination. The aforesaid circumstances would
lead to an inference that the suit promissory note
was executed by the deceased G.Pandurangan, in
favour of the plaintiff. Once it is proved that the
suit promissory note has been executed by the
deceased G.Pandurangan, as per Section 118 of the
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Negotiable Instruments Act, it has to be presumed
that the said promissory note is supported by
consideration.
19. Further, it is to be pointed out that it is
not the case of the defendants that the deceased
G.Pandurangan had any bad habits and he would
have used the said amount for any illegal purpose.
Therefore, it has to be presumed that he borrowed
the amount only for the benefit of the family.
Therefore, the defendants are bound to discharge
the said debt from and out of the estate left by the
deceased G.Pandurangan which is in their hands.
Taking into consideration of all the aforesaid facts,
the trial Court had rightly decreed the suit. Further,
though the plaintiff had claimed interest at the rate
of 24% till the date of the suit, the trial Court
taking into consideration the transaction is not a
commercial transaction, it has reduced the interest
and directed the defendants to pay the interest at
the rate of 12% per annum for the principal and
subsequent interest at the rate of 6% per annum.
But the first Appellate Court without appreciating
the evidence in a proper perspective had
erroneously reversed the findings of the trial Court
and therefore, the Second Appeal has to be
allowed. Accordingly, the substantial questions of
law are answered in favour of the
appellant/plaintiff.”
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12. The learned counsel for the appellant drew the attention of
this Court to an yet another judgment of this Court in
T.K.Kulandaivelu .vs. K.P. Nallusamy, reported in (2021 (4) CTC
520) wherein it has been held as follows:-
“9.In the case on hand also, the signature in
the suit pro-note has been admitted. Therefore, the
approach laid down in the aforesaid decision will
have to be adopted. The trial Court was justified in
drawing presumption under Section 118 of the
Negotiable Instruments Act in favour of the
plaintiff/appellant herein. The question that next
arises is whether the presumption had been
successfully rebutted by the defendant. The first
Appellate Court had referred to a host of
discrepancies found in the testimony of the
witnesses for the plaintiff to come to the conclusion
that the presumption had been rebutted and
Ex.A1-pro-note was not established. It is true that
there are contradictions in the answers given by
the witnesses. In my view, they do not really go to
the root of the matter. As rightly argued by the
learned counsel for the appellant, the pro-note has
been executed way back in the year 1994.
Witnesses were examined only in March 2010.
Thus, there has been a gap of almost 16 years
between the date of execution of the suit pro-note
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and the examination of the witnesses in the Court.
In view of the efflux of time, the memories are
likely to fail. The S.A.(MD)No.54 of 2014
contradictions noted in the deposition of the
witnesses by the First Appellate Court are not really
material. The only way the defendant could have
rebutted the presumption is to show that the
plaintiff was running the chit business and that,
when he had bid for the prize money, the suit pro-
note was taken.”
13. The learned counsel appearing for the respondent /
defendant would submit that the well considered Judgments of the
Courts below need not be interfered with, as there is no question of
law involved in this Second Appeal 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. The case of the plaintiff is that the defendant borrowed a
sum of Rs.4,00,000/- from the plaintiff payable with interest at the
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rate of 1% p.a., for which, he executed Ex.A1, promissory note.
Despite the plaintiff made several requests, the defendant failed to
repay the amount. According to the plaintiff, when the signature and
handing over of unfilled pronote is admitted by the defendant, the trial
Court ought to have invoked benefits under Section 20 and 118 of
Negotiable Instruments Act. But, the case of the defendant is that
Ex.A1 is a fabricated one and the defendant has not admitted his
signature either in the pleadings or in evidence and therefore, the
plaintiff cannot be permitted to take umbrage under the provisions of
Sections 20 and 118 of the Negotiable Instruments Act.
16. Ex.A4 is the reply notice sent by the defendant through his
counsel in response to Ex.A2 legal notice issued by the plaintiff, calling
upon the defendant to settle the amounts due on the promissory note,
dated 14.12.2013. On perusal of Ex.A4 reply notice would disclose
that in none of the portion the defendant admitted the signature found
the suit promissory note. In fact in Ex.A4, the defendant had
contended that the promissory note was tendered with signature alone
not with regard to the alleged borrowing of Rs.4,00,000/- from the
plaintiff on 14.12.2013, but as a token for having received Rs.
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1,90,000/- as advance out of the sale consideration of Rs.2,50,000/-
agreed by the plaintiff to purchase the lands of the father of the
defendant. Since the defendant had not admitted his signature, the
contention of the plaintiff that Sections 20 and 118 of Negotiable
Instruments Act have to be invoked in favour of the plaintiff cannot be
countenanced.
17. During cross examination, the plaintiff deposed that the
defendant brought the attestors and scribe to his house, situated at
Vakaikulam and as per the dictate of the defendant, the promissory
note was prepared by the scribe Subramanian with his pen. P.W.2
Peter Prabhakaran, an attestor to the suit promissory note, who was
examined to corroborate the evidence of the plaintiff, deposed that the
defendant took him to the plaintiff's house and that the suit
promissory note already prepared through computer was brought by
the defendant and that he signed in the promissory note. Admittedly,
Ex.A1 was prepared through computer. If really the suit promissory
note had been executed by the defendant, as claimed by the plaintiff,
absolutely there is no possibility of material contradictions creeping
into the evidence of P.W.1 and P.W.2 with regard to execution of the
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suit promissory note. Further, admittedly, there was a civil dispute
between the defendants father and P.W.2, it is hard to comprehend
that the defendant would have brought P.W.2 for the purpose of
making attestation in the suit promissory note and therefore, this
Court is of the view that P.W.2 is not a trustworthy witness. The triate
law is that the plaintiff cannot be permitted to pick holes in the
defendants case and claim to have proved his case. No doubt, the
Judgments and Decrees of the Courts below are based on proper
appreciation of evidence placed and proper understanding of t he
settled principles of law governing the provisions of Sections 20 and
118 of Negotiable Instruments Act.
18. Admittedly, the defendant received a sum of Rs.1,90,000/-
from the plaintiff, which he is liable to pay the same to the plaintiff
with reasonable interest. Accordingly, the defendant is directed to pay
a sum of Rs.1,90,000/-, as agreed, to the plaintiff with interest at the
rate of 3% per annum.
19. In fine, the Second Appeal is dismissed, confirming the
Judgment and Decree passed in A.S. No.101 of 2018, dated
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29.07.2019 on the file of the III Additional District Court, Tirunelveli, in
confirming the judgment and decree passed in O.S. No.160 of 2016
dated 03.08.2018, on the file of the Sub Court, Sankarankovil.
03.01.2022
Index: Yes/No.
Internet: Yes/No.
aav
Note: In view of the present lock down owing to COVID 19 pandemic, a web
copy of the order may be utilised 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.
To
1. The III Additional District Court, Tirunelveli
2. The Sub Court, Sankarankovil.
https://www.mhc.tn.gov.in/judis
V. BHAVANI SUBBAROYAN, J.
aav
S.A.(MD) No.28 of 2018
03.01.2022
https://www.mhc.tn.gov.in/judis
