Madras High Court
V.Subburam vs N.S.Balamurugan on 28 March, 2022
S.A(MD).No.158 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 28.03.2022
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
S.A(MD).No.158 of 2022
V.Subburam ... Petitioner
Vs.
N.S.Balamurugan ... Respondent
Second Appeal filed under Section 100 of Civil Procedure Code
to set aside the judgment and decree passed in A.S.No.22 of 2018 on the file
of the Additional District Judge, (FTC), Theni, dated 18.02.2019 reversing
the well-considered judgment and decree passed in O.S.No.121 of 2011 on
the file of the Sub-ordinate Judge, Uthamapalayam, dated 25.10.2017 and
allow the appeal with costs.
For Petitioner : Mr.S.A.Kumar
for Mr.R.Suriyanarayanan
For Respondents : Mr.C.Senthil Murugan
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S.A(MD).No.158 of 2022
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ORDER
This Second Appeal has been filed to set aside the judgment and
decree passed in A.S.No.22 of 2018 by the Additional District Judge, (FTC),
Theni, dated 18.02.2019 reversing the well-considered judgment and decree
passed in O.S.No.121 of 2011 by the Sub-ordinate Judge, Uthamapalayam,
dated 25.10.2017 and allow the appeal with costs.
2. The defendant is the appellant. The plaintiff namely
Mr.N.S.Balamurugan, who is the respondent herein, has filed a suit for
recovery of money and costs from the defendant.
3. The facts of the case are that the defendant has borrowed a sum
of Rs.3,00,000/- from the plaintiff on 05.05.2011 to meet out his family
expenses and to develop his agricultural lands, and executed the promissory
note on the very same day in favour of the plaintiff agreeing to repay the
principal amount of Rs.3,00,000/- with interest at Rs.10/- p.m for Rs.100/-.
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S.A(MD).No.158 of 2022
The defendant did not repay any amount either principal or interest to the
plaintiff, even after making so many demands by the plaintiff. Hence, the
plaintiff has filed the suit to recover the plaint amount of Rs.3,19,500/- with
subsequent interest for Rs.3,00,000/- and cost from the defendant.
4. The defendant filed a written statement denying the averments
set out in the plaint by stating that the defendant has borrowed a sum of Rs.
3,00,000/- from the plaintiff on 05.05.2011 and the defendant has agreed to
repay the principal amount with interest at Rs.1/- p.m. for Rs.100/-. It is also
falsely stated that the defendant has executed a promissory note in favour of
the plaintiff at Markaiyankottai Village on 05.05.2011. The defendant has
denied all the allegations set out in the plaint by stating that he has not
borrowed any amount from the plaintiff and not executed any such
promissory note in favour of the plaintiff. It is further stated by the
defendant that the plaintiff has forged the signature of the defendant at the
instigation and inducement of Manivannan, who was erstwhile son-in-law
of the defendant and fraudulently created the promissory note.
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S.A(MD).No.158 of 2022
5. The First Appellate Court has framed the following issues:-
1. Whether the plaintiff has proved the execution of
promissory note by the defendant in favour of the plaintiff on
05.05.2011 after borrowing a sum of Rs.3,00,000/- from him?
2. Whether the judgment and decree of trial Court in
dismissing the suit is correct and proper?
3.Whether this appeal is liable to be allowed?
6. The trial Court accepted the contention of the
defendant/appellant herein by stating that the signature of the defendant is
not tallied and accordingly, dismissed the suit. The First Appellate Court
considered the grounds raised by the plaintiff/respondent and made a clear
finding that Ex.A1 is the promissory note which was denied by the
defendant in his case. It is further contended that the said promissory note
was not supported by any consideration. Signature in Ex.A1 was totally
denied by the defendant. The defendant has stated that he did not receive
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S.A(MD).No.158 of 2022
any amount from the plaintiff on 05.05.2011. Under these circumstances,
the First Appellate Court has formed an opinion that the plaintiff need not
produce any documents such as Bank Pass Books or to pour the money
before the Court to establish that he was having sufficient money to lend the
same to the defendant. The trial Court dismissed the suit based on some
minor contradictory evidences of P.W.1 to P.W.3 about the denomination of
Rs.3,00,000/-, which is not at all well reasoned and well sounded one.
Further, some minor contradictory evidences of P.W.1 to P.W.3 in respect of
denomination of money will not ruin or dismantle the very root of the suit
filed by the plaintiff.
7. The plaintiff has clearly established the presumption under
Sections 118 and 139 of Negotiable Instrument Act in his favour through
the evidence of P.W.1 to P.W.3. Per contra, the defendant did not discharge
his burden to rebut the presumption drawn in favour of the plaintiff under
Sections 118 and 139 of Negotiable Instrument Act.
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S.A(MD).No.158 of 2022
8. The defendant has taken steps to compare the disputed
signature in Ex.A1/Promissory note along with his admitted signatures and
to get the expert opinion. He will not proceed the same even after getting
the order from this Court for comparison of signatures and get the expert
opinion. On perusal of the records, it is found that the defendant has filed
the petition in I.A.No.286 of 2012 before the trial Court for sending the
Promissory Note to the Handwriting Expert for comparison of his signature
and to obtain the expert opinion. The trial Court has dismissed the I.A.No.
286 of 2012 on merits on 23.10.2013. Thereafter, the defendant has
preferred C.R.P(PD)(MD).No.211 of 2014 before this Court and as per the
order of this Court, Thiru.Yesuthiruselvan was appointed as Advocate
Commissioner to take over the original Promissory Note to the Handwriting
Expert and to obtain the expert opinion. But, the defendant did not pay the
remuneration of Rs.5000/- to the Advocate Commissioner and hence,
further process in the commission petition was dropped by the trial Court.
Hence, the First Appellate Court formed a clear opinion that the defendant
did not comply with the order of this Court to proceed the expert opinion
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S.A(MD).No.158 of 2022
petition filed in I.A.No.286 of 2012.
9. On perusal of cross-examination of D.W.1, it is found that the
defendant has wantonly denied his own signature signed in the
Acknowledgement Due Card received by him in I.A.No.341 of 2011 and
O.S.No.121 of 2011. However, the signature in Exs.A2 and A3 was
admitted by the defendant in his cross-examination. Ex.A2 is the H4 notice
served to the defendant in I.A.No.341 of 2011. Ex.A3 is the Summon served
to the defendant in O.S.No.121 of 2011. The First Appellate Court found
that the admitted signatures of the defendant in Exs.A2 and A3 and the
signature of the defendant in his written statement are completely different
from each other. Thus, the First Appellate Court arrived a conclusion that
the defendant is used to follow the habit of putting his signature in a
different manner in different documents. There is no constant and stable
signature put up by the defendant and hence, he totally denied his own
signature in the court summons and court acknowledgement card. The
conduct of defendant will clearly establish that he wantonly and
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S.A(MD).No.158 of 2022
purposefully denied his own signature put up in the promissory note. The
First Appellate Court clearly made a finding that the conduct of the
defendant in putting signature in different places is established.
Accordingly, the First Appellate Court arrived a conclusion that the plaintiff
has clearly proved through the evidence of P.W.1 to P.W.3 that the defendant
has borrowed a sum of Rs.3,00,000/- from the plaintiff on 05.05.2011 and
executed a promissory note in favour of the plaintiff on 05.05.2011 and it
was supported by valuable consideration. It does not suffer from any legal
infirmity. However, the trial Court has not considered the evidences adduced
on both sides in a proper way and based on some minor discrepancies, the
trial Court dismissed the suit.
10.This Court is of the considered opinion that the tactics of
putting the signature in different places were traced out by the Appellate
Court by verifying the notice and summons issued in the suit and
Interlocutory application. When the First Appellate Court has clearly
discussed about discrepancies and arrived a conclusion that the
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S.A(MD).No.158 of 2022
defendant/appellant is having the habit of putting the signature in different
places in different manner and further, the trial Court has dismissed the suit
merely on certain minor discrepancies, the findings of the First Appellate
Court seem to be sufficient enough to dismiss the Second Appeal. In view of
the clear findings, which are all cogent and reasoned with reference to the
documents established between the parties, this Court is of the opinion that
there is no reason whatsoever to interfere with the judgment and decree
passed by the First Appellate Court in A.S.No.22 of 2018.
11. Accordingly, the judgment and decree passed by the
Additional District Judge, (FTC), Theni dated 18.02.2019 in A.S.No.22 of
2018 stands confirmed and consequently, the Second Appeal stands
dismissed. No costs.
28.03.2022
ssb
Index:Yes
Internet:Yes
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S.A(MD).No.158 of 2022
S.M.SUBRAMANIAM, J.
ssb
To
1.The Additional District Court, (FTC), Theni.
2. Sub-ordinate Court, Uthamapalayam
S.A(MD).No.158 of 2022
28.03.2022
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