Madras High Court

M.I.Hasan … vs A.S.Vijay Anand on 1 December, 2023

Author: P.T. Asha

Bench: P.T. Asha

                                                                             A.S.No.62 of 2021


                            IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                              DATED: 01.12.2023

                                                   CORAM

                                  THE HONOURABLE Ms. JUSTICE P.T. ASHA

                                              A.S.No.62 of 2021


                     M.I.Hasan                                             …Appellant

                                       Vs

                     A.S.Vijay Anand                                      ...Respondent


                     Prayer: Appeal Suit is filed under Section 96 read with Order XLI
                     Rule 1 of C.P.C against the Judgement and Decree passed by the XVI
                     Additional City Civil Court, Chennai in O.S.No.5644 of 2013 dated
                     26.06.2018.


                                       For Appellant: Mr.T.V.Ramanujam, Senior Counsel
                                                      for Mr.S.Sivashanmugam

                                       For Respondent:Mr.A.S.Vijay Anand,
                                                      Party-in-Person – No Appearance


                     1/18



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                                                                                        A.S.No.62 of 2021




                                                         JUDGMENT

The unsuccessful plaintiff has filed the above appeal challenging

the judgment and decree passed by the learned XVI Additional Judge,

City Civil Court, Chennai in O.S.No.5644 of 2013.

2. The brief facts which have culminated in filing of this first

appeal are herein below set out. The parties for the ease of

understanding are referred to in the same ranking as before the trial

Court.

3. PLAINTIFF'S CASE:

(i) The plaintiff has filed the above suit for recovery of a sum of

Rs. 17,20,000/- together with interest @ 24% per annum on the sum

of Rs.10,00,000/- from the date of the suit till the date of realization.

It is the case of the plaintiff that the defendant had borrowed a sum of

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Rs.10,00,000/- from the plaintiff on 07.10.2009 and issued a cheque

dated 07.10.2009 for Rs.10,00,000/-bearing Cheque No.003481 drawn

on Axis Bank Ltd., as security and promised to repay the same at 24%

per annum. The plaintiff would submit that the amount was paid to

the defendant only on the recommendation of a close friend of the

plaintiff.

(ii) Despite repeated demands by the plaintiff, the defendant did

not re-pay the amount. The defendant's father was a sitting MLA of

Tiruttani Constituency and the defendant taking advantage of the

same, threatened the plaintiff stating that he has to forget about his

amount. Since the amount was not forthcoming, the plaintiff had

issued a legal notice dated 18.07.2012 calling upon him to repay the

said amount. The notice was returned with an endorsement

“unclaimed”. Therefore, the plaintiff had come forward with the suit.

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4. DEFENDANT'S CASE

(i) The defendant would submit that the suit is a rank forgery

and a fraud committed by the plaintiff against him and his father. He

would submit that the suit is nothing but an abuse of process of Court.

The defendant would submit that he does not know the plaintiff and

never had any official dealing with them. The defendant had clearly

and categorically denied borrowing any sum of money from the

plaintiff as also issuing him with the cheque. The defendant would

submit that he was a junior under Mr.G.Karthikeyan who was a close

friend of his father and also a lawyer. The defendant would submit

that his father would send briefs to the said Karthikeyan, particularly

land acquisition matters from the Thiruvallur District, for filing the

appeals before this Court.

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(ii) In the course of this relationship, the defendant's father,

who needed funds for his clients, had borrowed a sum of

Rs.10,00,000/- from the said Karthikeyan and similarly, one Sreedhar

Babu and Rajendran, the clients of the defendant's father had

borrowed a sum of Rs.4,50,000/- and another sum of Rs.5,00,000/-

from the said Karthikeyan respectively. The amount was advanced by

the said Karthikeyan to the said Sreedhar Babu and Rajendran on the

assurance given by the defendant's father about the due repayment of

the amount. As a security for these advances, the said Karthikeyan

had insisted upon the defendant executing promissory notes without

the drawer's name.

(iii) The plaintiff, considering the fact that Mr.Karthikeyan was

his senior and a trusted person and believing that the blank cheque

would not be misused had handed over the cheque to the said

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Karthikeyan. In addition to cheque taken from the defendant,

Karthikeyan had forcibly obtained the following documents:

S. No Nature of Dated Description
Instrument
1. Blank Pro-note 07.05.2009 For a sum of Rs.
10,00,000/- (Ten Lakhs
only)
2. Blank Cheque 07.10.2009 The above stated very
No. “003481” same amount of Rs.
drawn of Axis 10,00,000/- (Ten Lakhs
Bank, only) which was given as
Thiruvallur an Additional security
besides the pronote to
you
3. Blank Pro-note 20.04.2009 For a sum of Rs.
15,00,000/- (Fifteen
Lakhs only) at his
residence
4. Blank Cheque 07.08.2009 The above stated very
No. “003480” same amount of Rs.
drawn of City 15,00,000/- (Fifteen
Union Bank, Lakhs only) which was
Thiruvallur given as an Additional
security besides the
pronote dated
20.04.2009

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5. Blank Cheque 07.09.2009 Additional blank cheque
No. “003482” given towards the amount
drawn of City of Rs. 3,00,000/- (Three
Union Bank, Lakhs only) as interest.
Thiruvallur

(iv) The defendant would submit that in the month of October

2010, the defendant had paid a sum of Rs.15,00,000/- in cash to

Karthikeyan at his residence and on 20.11.2010, the defendant's father

further paid a sum of Rs.25,00,000/- and after receiving the sum of

Rs.40,00,000/- towards principal and interest, the said Karthikeyan

had executed a receipt to that effect. When the defendant had

insisted on the return of the promissory notes and cheques, the said

Karthikeyan had stated that the documents had been misplaced and he

would hand over the same the minute he places hands on it. The

father and son believing the said Karthikeyan had not insisted on its

return. It appears that this cheque has been given to the plaintiff by

the said Karthikeyan and the plaintiff is colluding with the said

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Karthikeyan. Therefore, he sought for dismissal of the suit.

5. ISSUES FRAMED:

1. Whether the plaintiff is entitled to receive the suit claim amount

from the defendant?

2. Whether the plaintiff is entitled to claim interest from the

defendant?

3. To what other relief, the plaintiff is entitled to?

6. TRIAL COURT

(i) The plaintiff had examined himself as P.W1 and marked

Exs.A1 to A3. On the side of the defendant, the defendant had

examined himself as D.W1 and B1 and B2 were marked. Ex.A1 is

the original cheque bearing No.003481 which is said to have been

drawn in favour of Hasan, the plaintiff, by the defendant. Ex.A2 is

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the copy of the legal notice issued by the plaintiff to the defendant and

Ex.A3 is his returned cover. Ex.B1 is the notice dated 14.11.2012

which has been sent by the defendant to the plaintiff calling upon him

to produce the following documents (i) Income tax returns from 2007

till date (ii) Bank statement from 2007 to date and (iii) Book of

accounts maintained in the normal course of business and Ex.B2 is the

xerox copy of the Bank statement of accounts and IT returns for the

years 2009-2010 and 2010-2011.

7. EVIDENCE:

(i) The plaintiff, as P.W1, in his proof affidavit, would reiterate

the contents of the plaint In his cross examination, the plaintiff would

submit that he is doing the business of selling home furnitures and

appliances on monthly installments. However, he fairly concedes that

no documents has been filed to support his statement. He would also

submit that a sum of Rs.10,00,000/-, which is said to have been

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extended as a loan, does not feature in Ex.B2-Bank statement. He

would state that the defendant's father has not borrowed any amount

from him and also concede that he has not filed any document to show

that he had the sum of Rs.10,00,000/- on 07.10.2009. He would also

state that during the relevant period, as per Ex.B2, the balance in his

account was only a sum of Rs.1,74,286.62/-. In his cross examination,

he would also concede that the bank statement-Ex.B2 and Income tax

returns do not reflect the amount that has been offered as a loan to the

defendant. P.W1 would also state that on earlier occasions, he had

extended a loan to the defendant to the tune of sum of Rs.7,00,000/-

and Rs.3,00,000/- in 2004. The defendant's mother had also borrowed

from him. He would also fairly admit that loans are given only on the

strength of promissory notes. He would further admit that though the

defendant had defaulted in repayment of the money, he has not

presented the cheque for collection, as he thought that the defendant

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would pay the amount within a period of one year. In response to a

question as to who was the friend who had recommended the plaintiff

to extend the loan to the defendant, the witness has clearly and

categorically stated that he is not in a position to divulge the name.

(ii) D.W1, in his cross examination, would state that his

cheque was given to his senior in the first two months of 2010. He

has clearly deposed that he does not know the plaintiff. He would

also submit that he has filed a criminal complaint with the City

Commissioner of Police for return of the cheques.

(iii) The trial Court, on overall consideration of evidence, has

returned a finding that the plaintiff has not come to Court with clean

hands and has failed to prove and establish that the defendant has

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executed a cheque after receiving the sum of Rs.10,00,000/-. That

apart, the Court has taken note of the fact that the borrowal was not

reflected in his bank statements or in the income tax returns. Since

the defendant has categorically denied the receipt of the money as also

the execution of the cheque in favour of the plaintiff, the burden of

proof was on the plaintiff to prove his case. However, the said burden

of proof has not been discharged and therefore, dismissed the suit.

8. SUBMISSIONS:

Mr.T.V.Ramanujam, learned Senior Counsel appearing on

behalf of Mr.S.Sivashanmugam, learned counsel for the plaintiff

would submit that the findings of the Court that the plaintiff has not

discharged the onus fixed on him is totally erroneous since the

plaintiff had admitted the execution of the cheque. Once the

execution of the cheque is executed, the burden is upon the plaintiff

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to prove that he has not received the consideration. Therefore, the

judgment and decree of the Court below has to be set aside and

decreed.

9. POINTS FOR CONSIDERATION:

1. Whether under Ex.A1-cheque has been executed in favour

of the plaintiff as security for the sum of Rs.10,00,000/-

received by the defendant from the plaintiff?

2. Whether the cheque has been given to the defendant's

senior as stated by him and not to the plaintiff?

10. Heard the learned senior counsel appearing for the appellant

and perused the materials available on record.

11. DISCUSSIONS:

The plaintiff has come forward with the case that on 07.10.2009,

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the defendant had borrowed a sum of Rs.10,00,000/- from him and

given the cheque-Ex.A1 as security for the said loan. The plaintiff has

stated that the loan had been given only on the recommendation of the

close friend. However, the plaintiff has refused to divulge the name of

the person. This assumes significance since it is the case of the

defendant that his senior G.Karthikeyan, to whom these cheques were

given, stating that the cheques were misplaced has given it to the

plaintiff. The defendant has denied the receipt of the sum of

Rs.10,00,000/- and has also questioned the wherewithal of the

plaintiff to extend the said loan. Therefore, the onus shifts upon the

plaintiff to prove that the amount has been disbursed by the plaintiff

to the defendant. In this regard, a perusal of Ex.B2-Bank Statement

clearly shows that the plaintiff did have such a huge amount and the

highest amount that he had given at the point in time was only a sum

of Rs.1,74,286.62/- .which is reflected in Ex.B2-Bank Statement. It is

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also strange that if the amount was actually borrowed by the defendant

or his father, the plaintiff would have deposited the cheque in the

bank. However, the plaintiff has not presented the cheque and the

explanation offered is rather a lame excuse wherein the plaintiff

would submit that he believed that the defendant would repay the said

amount in cash. In his cross examination, P.W1 would state that the

defendant had promised to repay the amount within a year, which

means that the amount should have been paid by 07.10.2010.

However, the legal notice-Ex.A2 has been issued only in the year

2012. The suit has been filed on 05.10.2012, just two days before the

expiry of the period of limitation. The plaintiff has not been able to

prove the passing of consideration, despite the contention of the

defendant that he has not issued the cheque nor received any amount

from the plaintiff. The defendant has also stated that he does not

know the plaintiff. However, P.W1, in his cross examination, would

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state that he knows the defendant for over 25 years. If that is true,

then there was no necessity for the plaintiff to state that he had

extended the loan only on the recommendation of a close friend.

Therefore, on an entire conspectus of both the oral and documentary

evidence, it is clear that the plaintiff has not extended any amounts to

the defendant and point of consideration (1) is held against the

plaintiff. Therefore, the second point is also against the plaintiff and

the trial Court has rightly non-suited the plaintiff. I see no reason to

revise the same. The statement of the second defendant that he had

given the cheque to his senior Karthikeyan has not been refuted by the

plaintiff. Therefore, the second point is also held against the plaintiff.

Therefore, the first appeal is dismissed. No costs.