Madras High Court
Sivabhushanam vs E.S.Nandagopal on 28 March, 2022
S.A.No.219 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 28.03.2022
CORAM
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
S.A.No.219 of 2022
Sivabhushanam
S/o.A.Veerasamy Naidu,
No.949, 39th Street
Tamil Nadu Housing Board Colony,
Korattur, Chennai-600 080,
Ambattur Taluk, Tiruvallur District,
Represented by his
General Power of Attornery Agent Mr.Dhananjayan
S/o.Sanjeevi Naidu ... Appellant
Vs.
E.S.Nandagopal
S/o.Sriramulu Naidu ... Respondent
PRAYER: The Second Appeal filed under Section 100 of C.P.C, to set aside
the Decree and Judgment dated 29.03.2019 passed in A.S. No.04 of 2014 on
the file of the learned Principal District Judge at Thiruvallur confirming the
Decree and Judgment dated 04.09.2013 passed in O.S.No.23 of 2010 on the
file of the Subordinate Court at Poonamallee.
For Appellant : Mr.G.Dilip Kumar
For Respondent : Mrs.R.Sripriya
for V.Raghavachari
1/8
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S.A.No.219 of 2022
JUDGMENT
The plaintiff in the suit in O.S.No.23 of 2010 on the file of the
Subordinate Court, Poonamallee is the appellant in the above Second
Appeal. The appellant filed the suit in O.S.No.23 of 2010 before the
Subordinate Court Ponamallee, for recovery of sum of Rs.3,53,600/- due on
five promissory notes dated 10.12.2004, stated to have been executed by the
defendant in favour of plaintiff, repayable with interest at 12% per annum.
2.The suit was filed by the appellant represented by his Power of
Attorney Agent by name Dhananjayan. It is the case of the appellant/
plaintiff that the defendant borrowed a total sum of Rs.3,25,000/- and that he
had executed five promissory notes on 10.12.2004. The four promissory
notes for a sum of Rs.75,000/- each and the 5th promissory note for a sum of
Rs.25,000/-.
3.It is the case of the plaintiff that the defendant should pay interest
every month. Therefore, the defendant used to deposit the interest every
month into the Bank either by himself or through his wife and stated that the
defendant stopped paying the interest from November 2008. Thereafter, the
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S.A.No.219 of 2022
suit came to be filed for recovery of Rs.3,53,600/-, The respondent
contested the suit mainly on the ground that the suit is barred by limitation.
The challan produced by the plaintiff was specifically denied and it is
contended that the defendant neither acknowledged the debt nor repaid any
money towards the suit debt. It is also contended by the defendant that no
amount was paid on the date of execution of promissory notes and that the
entire transactions between the plaintiff and the defendant had come to an
end by settlement of entire amounts due on the promissory notes with
interest to the plaintiff long ago.
4.The trial Court framed specific issues with regard to the
genuineness of the transactions and the suit promissory notes and regarding
the limitation pleaded by the defendant. As against the specific statement
made by the defendant with regard to the transactions and other issues
denying his liability, the plaintiff has not come forward to examine himself
as a witness. However, the Power of Attorney Agent from the plaintiff side
was examined as P.W.1. Based on the documents viz. Ex.A6 to A8 the
plaintiff contended that the suit is not barred by limitation, as the debt was
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S.A.No.219 of 2022
acknowledged by the defendant by making payments.
5.It is to be noted that the defendant had denied the signature of his
wife in Ex.A6 to A8. Though the trial Court relied upon the documents viz.
Ex.A6 to A8 as valid acknowledgement by holding that the plaintiff has
proof that the said challan were signed by the defendant's wife, considering
the overall evidence regarding discharge of entire debt, the trial Court held
that the defendant had paid a sum of Rs.6,750/- every month in excess of
interest which was only 1% per annum. The trial Court, therefore, held that
the defendant has repaid in excess of the money payable as per the demand
of promissory notes, and that the plaintiff is not entitled to any amount from
the defendant.
6.Considering the fact, that the plaintiff failed to examine himself as a
witness and failed to speak about the specific case pleaded against the
defendant, the trial Court held that the plaintiff failed to prove the suit
claim. As against the Judgement and Decree of the trial Court, the appellant
preferred A.S.No.4 of 2014 before the learned Principal District Judge,
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S.A.No.219 of 2022
Thiruvallur. The Appellate Court also held that the plaintiff has failed to
examine himself as a witness to prove his case and that non examination of
plaintiff is fatal.
7.The Appellate Court after considering documentary evidence
specifically found that the suit promissory notes were executed on
10.12.2004 but the suit which was filed in 2010 is barred by limitation. The
acknowledgements by challan as pleaded by the plaintiff does not show that
the defendant had acknowledged the debt. The appellate Court therefore
held that the suit is barred by limitation. After perusing the evidence, the
Appellate Court also confirmed the findings of the trial Court, by saying that
the appellate Court has no reason to interfere with the judgement and decree
of the trial Court.
8.As rightly pointed by the Courts below, the plaintiff has not
examined himself as a witness to prove his case, despite the definite stand
taken by the defendant regarding the discharge of entire promissory notes.
The suit promissory notes were executed on 10.12.2004. Relying upon the
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S.A.No.219 of 2022
bank challan, it is contended by the appellant that the suit debts have been
acknowledged by the defendant as the payments were made by the
defendant's wife. The remittance were not proved to be made by the
defendant's wife acknowledging the debt.
9.The Appellate Court categorically given a finding that the
remittance of amounts by defendant as alleged is not proved by the plaintiff.
Assuming that the defendant's wife had remitted certain amount, unless it is
proved that the defendant had acknowledged the debt by remitting or
depositing any amount the mere remittance by the defendant's wife cannot
be taken as an acknowledgement of suit claim which is based on several
promissory notes unless there is a specific pleading to establish that the
defendant's wife with specific authorisation to acknowledge the claim had
remitted the amounts. The remittance by wife cannot be treated as
acknowledgement of debt by the defendant. In this case, the appellate Court
has found that the plaintiff has failed to prove acknowledgement of debt by
production mere challan without proof that money was deposited by
defendant.
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S.A.No.219 of 2022
10.Therefore, this Court is unable to take a contrary view regarding
the question of limitation. As rightly held by the Courts below, the plaintiff
has failed to prove his claim and the suit is barred by limitation. The
findings of the Court below are based on evidence and reasons. This Court
is unable to interfere with the findings of appellate Court especially when
there is no substance in the questions of the law raised.
11.As a result, the Second Appeal is dismissed as devoid of any
merits.
28.03.2022
dk / kas
Index : yes / no Internet : yes / no
Speaking / Non Speaking order
To:
1.The Subordinate Court
Poonamallee.
2.The Principal District Judge
Thiruvallur.
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S.A.No.219 of 2022
S.S.SUNDAR, J.
kas /dk
S.A.No.219 of 2022
28.03.2022
https://www.mhc.tn.gov.in/judis
