Madras High Court
R.Seemaisamy vs S.Chokkalingam on 21 January, 2022
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATE: 21.01.2022
CORAM
THE HON'BLE MRS.JUSTICE V. BHAVANI SUBBAROYAN
S.A.(MD) No.112 of 2020
and
CMP(MD) No.1762 of 2020
R.Seemaisamy ...Appellant
vs.
S.Chokkalingam ...Respondent
Second Appeal filed under Section 100 of CPC against the
Judgment and Decree dated 30.09.2019 in A.S.No.156 of 2018 on the
file of the Principal District Court, Dindigul confirming the judgment
and decree dated 22.12.2017 in O.S.No.588 of 2015 on the file of the
Additional Sub Judge, Dindigul.
For Appellant : Mr.H.Arumugam
JUDGMENT
The present second appeal has been filed challenging the
Judgment and Decree dated 30.09.2019 in A.S.No.156 of 2018 on the
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file of the Principal District Court, Dindigul confirming the judgment
and decree dated 22.12.2017 in O.S.No.588 of 2015 on the file of the
Additional Sub Judge, Dindigul.
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 18.09.2013, the defendant borrowed a sum of Rs.2,50,000/-
agreeing to repay with interest at 12% p.a., on demand and executed
a promissory note. The defendant has not repaid the said amount or
interest. Hence the plaintiff issued a legal notice, dated 30.10.2015
requesting him to repay the amount. The defendant issued a reply
dated 19.11.2015 containing false allegations. In the reply send by
the defendant it is stated that the defendant had obtained loan from
the plaintiff's uncle one Pandi and for that he has given promisory
note in Rs.20/- stamp paper on 24.08.2009 and when the same was
requested to be returned back, the uncle of plaintiff had demanded
more interest are all false and he has elicited the same with the bad
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intention not to repay the loan amount. Hence, the plaintiff has filed a
suit for recovery of money based on the promissory note.
4. Resisting the claim made by the plaintiff, the defendant filed a
written statement contending among otherthings that there is no
execution of promissory note. The defendant would state that the
plaintiff is a stranger and denied the execution of promissory note. The
defendant states that the plaintiff's uncle Pandi is a money lender and
he borrowed money on 24.08.2009 and executed a blank promissory
note in Rs.20 stamp paper as security. The defendant had repaid all
the amount borrowed by him. However his uncle had demaned more
ex-orbitant interest and hence the defendant lodged a complaint
before the Vilampatti Police Station and the same was registered in
Crime No.28 of 2016. The plaintiff has filed a suit with false
averments and hence he prays for dismissal of the suit.
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 money from the plaintiff and had
executed the suit promissory note?
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b) Whether the plaintiff is entitled for the
amount based on the promissory note?
c)To what relief the plaintiff is entitled to?
6. On the side of the the plaintiff, three witnesses were
examined as PW.1 to PW.3 and four documents were marked as Ex.A1
to Ex.A.4. On the side of the defendant no witness was examined and
Ex.B.1 was marked in the cross examination of PW.1.
7.On analysis of the oral and documentary evidence, the Trial
Court had decreed the suit directing the defendant to pay a sum of
Rs.3,15,916/- to the plaintiff and out of the same for Rs.2,50,000/-
the defendant was directed to pay interest @6% per annum from the
date of plaint till the date of payment and for costs. Aggrieved by the
same, the defendant has preferred an appeal in A.S. No.156 of 2018,
on the file of the learned Principal District Judge, Dindigul.
8. The first appellate court, after considering the oral and
documentary evidence of the parties and re appreciation of evidence,
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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 defendant as appellant raising various grounds.
9. The learned counsel appearing for the appellant/defendant
would vehemently contend that the first appellate Court had erred in
framing proper issues regarding the facts pleaded and evidence let in
the case and also failed to frame proper issues regarding the execution
of Ex.A.1/pro-note and further failed to contradict the statements of
PW.2 and PW.3 in the cross examination regarding the execution of
Ex.A.1/pronote, when, where and in which place Ex.A.1 has been
executed was not proved by the respondent/plaintiff. The courts below
have failed to consider the written statement of the appellant filed
before the trial court contending that while the appellant denying the
execution of Ex.A.1 in favour of the respondent herein, the burden of
proof shifts on the side of the respondent/respondent/plaintiff under
Section 118 of the Negotiable Instruments Act nowhere gives
presumption against the appellant/appellant/defendant, is not
considered by the first appellate court, is against the law. The first
appellate Court had failed to consider the case in the aspect that the
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initial burden is always upon the respondent/plaintiff as per the
Evidence and Negotiable and Instruments Act.
10. The first appellate Court had failed to observe the statements
of PW2 and PW.3 in their cross examination regarding the
acquaintance of the appellant herein and one T. Pandi- Money lender
uncle of the respondent/ respondent/ plaintiff and further failed to
observe the failure to prove the residence of the respondent/
respondent/ plaintiff while the same is very clearly raised and
established in the cross examination. The first appellate Court failed to
observe the denials of the appellant that the averments stated in the
legal notice/Ex.A2 as well as in the plaint that there is no money
transaction with respondent/respondent/plaintiff and also not executed
Ex.A.1 in favour of the respondent /respondent/plaintiff in
Chokupillaipatty and the above said facts had been replied through
Ex.A.4 as well as in the written statement.
11. The first appellate Court had failed to consider the
statements of Ex.A.4, in which, it is clearly stated that the criminal
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complaint had been given against the respondent/respondent/plaintiff
uncle T.Pandi by concealing the same the respondent/ respondent/
plaintiff approached the Hon'ble Court with unclean hands and
fraudulently filled the Ex.A.1 which was issued to one T.Pandi, was
established through evidence is a mixed question of fact and law,
which was not considered by the First appellate Court, is erroneous
and against the law. The first appellate Court failed to consider the
important aspect of the case that the place of execution of Ex.A1. has
not been stated in Ex.A2 issued on 30.10.2015 and the same was
admitted by respondent/respondent/plaintiff in his cross examination
which was not considered by the first appellate Court. The first
appellate court had failed to notice the receipt of the Ex.A.4. which is a
reply notice sent by the appellant to the residential place of
respondent/respondent/plaintiff received by T.Pandi which is contrary
to Ex.A2.Further the appellate Court failed to notice the place of
residence of the respondent/respondent/plaintiff and the place of
execution of Ex.A.1 as stated in the plaint, it has been stated that
Chokkupillaipatti which is received by T.Pandi, had arouse doubt on the
case of the respondent/respondent/plaintiff residential place and place
of execution of Ex.A.1 was not considered by the first appellate court
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and trial court erroneously held in favour of the respondent/
respondent/ plaintiff, is against law.
12. The first appellate and trial court have failed to consider the
failure of the respondent/respondent/plaintiff to produce any
documentary evidence to prove his residence which clearly creates
suspicion over the place of residence and place of execution of Ex.A.1
and without considering these aspects the Courts below have rendered
the judgment and decree in favour of the respondent/ respondent/
plaintiff is against the law. The courts below have not considered the
chief and cross examination of PW1. to PW.3. The PW1 in his cross
examination very clearly admitted that his uncle is doing money
lending business and he only received the reply notice at
Chokkupillaipatti sent by the appellant/appellant/defendant herein.
Further, PW2 admitted in his cross examination that PW1 is residing at
Dindigul and further admitted that there is no mentioning of place of
money given to the appellant /appellant/defendant in their proof
affidavit contrary to the plaint averments clearly induce to think that
there is a misleading statement by the respondent/
respondent /plaintiff and approached the trial court with unclean
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hands which further induces to presume that there is no possibility of
executing the Ex.A1 between the respondent/ respondent/plaintiff and
appellant/appellant/defendant. The courts below have failed to
consider the cross examination of PW.2, in which it is admitted that the
appellant/appellant/defendant herein and T.Pandi knows each other.
The first appellate court had failed to consider the statement of the
PW3 who admitted in his cross examination that he does not know the
residential address and further admitted that he does not know the
place of transaction . But in the cross examination of PW3 he has
stated that he has not known the uncle which clearly shows the
misleading statements of the witnesses and that there is no
transaction between the appellant/ appellant/ defendant and the
respondent/ respondent/plaintiff is against law. Both the courts below
have failed to consider the differences of ink used in the signature
column and the word running column and further the unusal gap
between the words is against the law. The first appellate court failed
to consider the contradictory oral statements of the respondent side
witness and further failed to frame the issued regarding the pending
criminal case against the respondent and his uncle Pandi is against the
law. The first appellate court failed to consider the trail court had
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passed the judgment and decree without the chief and cross
examination of appellant/defendant without corroboration is against
the law.
13. The learned counsel appearing for the respondent / Plaintiff
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. From the above pleadings, it is seen that the appellant
herein who is the defendant has borrowed a sum of Rs.2,50,000/- on
18.09.2013 agreeing to repay the same with interest @ 9% per annum
and executed a promissory, which is marked as Ex.A.1. When the
defendant failed to repay the same, the plaintiff issued a legal
notice/Ex.A2, for which the appellant/defendant also sent a reply
notice. It is further seen that the defendant has affixed his signature
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in the promissory note in the plaintiff's house at Chokkupillaipatti
which was also affirmed by the evidence of PW.2, however the
appellant/defendant denied the execution of promissory note. Further
two or three witnesses(P.W.2 and P.W.3) have affirmed the execution
of promissory note by the appellant/defendant in the plaintiff's house.
It is settled proposition of law that when the plaintiff/respondent duly
proved the execution of promissory note, the duty is cast upon the
defendant to rebut the same.
16.Furthermore, the defendant did not step into the witness box
to deny the execution of promissory note/Ex.A.1 and the variation in
the ink found in the promissory notice and hence adverse inference
has to be drawn against him. Further the appellant/defendant has
stated that he has not executed the promissory note at Chokkupillipatti
and he did know how many houses is having for the
plaintiff/respondent. However, the appellant/ defendant has sent a
reply notice marked under Ex.B.1 to the residential place of the
plaintiff/respondent at Chokkupillaipatti and it was received by one
K.Pandi uncle of the plaintiff/respondent. Further the
respondent/plaintiff is residing at Namakkal and the
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appellant/defendant is residing at Thiruvannamalai and PW.2 who is
the attestor of the promissory note had deposed that he does not
know the facts contained in the proof affidavit and he does not give the
details in the proof affidavit. From the above, it is seen that PW2 and
PW3 had clearly spoken about the execution of promissory note by the
appellant defendant in the house of respondent/plaintiff at
Chokkupillaipatti and moreover, signature found in the promissory note
was not denied by the appellant/defendant.
17. Therefore, this Court has no hesitation to come to a
conclusion that execution of Ex.A1, promissory note, by the appellant/
defendant had been proved by the plaintiff. This Court in a catena of
decisions held that where findings of fact by the courts below are
based on evidence, the High Court in Second Appeal cannot simply
substitute its own findings on reappreciation of evidence merely on the
ground that another view was possible.
18. This Court, after careful perusal of the materials available on
record, especially, evidence led on record by the respodnent/ plaintiff,
finds no error in the Judgments and Decrees passed by the Courts
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below and as such, there is no occasion for this Court to interfere in
the well reasoned Judgment.
19. In the facts and circumstances as discussed above, this Court
is of the view that the findings rendered by the trial court and upheld
by the first appellate Court, do not warrant any interference of this
Court, as findings given on the issues framed by the Courts below as
well as specifically taken up by this Court to reach the root of the
controversy, appears to be based upon correct appreciation of oral as
well as documentary evidence. Hence, the present Second Appeal fails
and is dismissed, accordingly. However, there shall be no order as to
costs. Consequently connected miscellaneous petition is also closed.
21.01.2022
Index: Yes/No.
Internet: Yes/No.
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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.
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To
1. The Principal District Court, Dindigul
2. The Additional Sub Judge, Dindigul.
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V. BHAVANI SUBBAROYAN, J.
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S.A.(MD) No.112 of 2020
and
CMP(MD) No.1762 of 2020
21.01.2022
https://www.mhc.tn.gov.in/judis
