Madras High Court
Dharmaraj vs Valarmathi on 23 January, 2023
S.A.No.1020 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 23.01.2023
CORAM
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
S.A.No.1020 of 2022
and
C.M.P.No.21882 of 2022
Dharmaraj
Rep by his power agent
Tamil Selvi .... Appellant
Vs
Valarmathi .... Respondent
Prayer :- This Second Appeal is filed under Section 100 of Civil
Procedure Code to set aside the Judgment and Decree dated 09.12.2021
made in A.S.No.12 of 2020 on the file of the Principal District and Sessions
Judge, Ariyalur, confirming the Judgment and Decree dated 18.02.2020
made in O.S.No.340 of 2017 on the file of the Sub Court, Jayankondam.
For Appellant : Mr.M.Senthilvadivu
For Respondent : Mr.S.Nagarajan
JUDGMENT
This second appeal is directed as against the Judgment and
Decree dated 09.12.2021 made in A.S.No.12 of 2020 on the file of the
Principal District and Sessions Judge, Ariyalur, therbey confirming the
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S.A.No.1020 of 2022
Judgment and Decree dated 18.02.2020 made in O.S.No.340 of 2017 on the
file of the Sub Court, Jayankondam, thereby allowing the suit for recovery
of money.
2. The appellant is the defendant in the suit filed by the respondent
for recovery of money on the strength of the Promissory Note. The case of
the respondent is that the appellant borrowed a sum of Rs.3,50,000/- as loan
and agreed to repay the same with interest at the rate of Rs.1/- per month
and executed a Promissory Note on 28.12.2015. However, the appellant
failed to repay the same and as such, the respondent issued notice on
27.12.2016 and filed a suit.
3. The appellant resisted the suit and filed a written statement
stating that the appellant never executed any Promissory Note for a sum of
Rs.3,50,000/- and he never agreed to repay the said amount with interest at
the rate of Rs.1/- per month. As such, no consideration was passed on in
favour of the appellant to execute any Promissory Note in favour of the
respondent. In the month of April 2013, the appellant herein borrowed a
sum of Rs.1,00,000/- from the husband of the respondent for the purpose of
going abroad and executed four Promissory Notes each for a sum of
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S.A.No.1020 of 2022
Rs.50,000/- dated 15.04.2013, 16.04.2013, 17.04.2013 and 18.04.2013 in
favour of the husband of the respondent herein. It is common that after
borrowal of the amount have to be executed Promissory Note for double the
amount. After returning to India, on compulsion, that too, after
administering Alcohol with intoxication to the appellant, obtained fresh
Promissory Note, since the earlier Promissory Notes were barred by
limitation. Therefore, the appellant need not to pay any amount to the
respondent herein.
4. On the side of the respondent, she had examined P.Ws. 1 and
2 and marked Exs. P1 to P4. On the side of the appellant, they had
examined D.Ws.1 to 4 and marked Exs.D1 to D5.
5. On considering the oral and documentary evidences adduced by
the respective parties and the submission made by the learned counsel, the
trial Court decreed the suit in favour of the respondent. Aggrieved by the
same, the appellant preferred an appeal in A.S.No.12 of 2020 before the
Principal District and Sessions Judge, Ariyalur and the same was also
dismissed and the Judgment and Decree of the Trial Court was confirmed.
Aggrieved by the same, the present second appeal.
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S.A.No.1020 of 2022
6. The learned counsel for the appellant has raised the following
substantial questions of law:
a) Whether the Courts below are justified in
ignoring the contradictory deposition of P.W.1 and
P.W.2 regarding the execution of Ex.A1.
b) Whether the Courts below are correct in
holding in favour of plaintiff in the absence of the
evidence to the effect that Ex.A1 Promissory Note
was supported by consideration ?
c) Whether the Courts below have
committed an error in assuming that the suit
promissory note bears the signature of the
defendant's husband when there is a specific denial
that the signature found in the suit promissory note
was created by the plaintiff's husband with his
hooligans under the influence of alcohol and in
casting the burden on the defendant to prove her
defence plea ?
d) Whether the Courts below have
committed a grave illegality by drawing
presumption under Section 118 of the Negotiable
instruments act and decreed the suit in favour of
the respondent in the absence of proving the
execution of promissory note ?
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S.A.No.1020 of 2022
e) Whether the Courts below are correct in
not framing the points for determination as
contemplated under Order 41 Rule 31 of CPC as
the same is mandatory ?
7. Heard, Mr.M.Senthil Vadivu, the learned counsel appearing for
the appellant and Mr.Mr.S.Nagarajan, learned counsel appearing for the
respondent and perused the materials available on record.
8. The learned counsel appearing for the appellant would submit
that the alleged Promissory Note itself is forged and fabricated one and
there is no necessity for the appellant to borrow any amount from the
respondent. When the appellant was intoxicated with liquors, he was forced
to sign new Promissory Note for a period of 2013 to 28.12.2015 with
interest at the rate of 3 paise for his own convenience. During the cross
examination of P.W.2 , it was established that no consideration was passed
on for execution of any Promissory Note. In fact, it is the duty of the
respondent to prove the case on the strength of sufficient oral and
documentary evidence. Though the respondent failed to prove the case, the
Court below decreed the suit.
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S.A.No.1020 of 2022
9. A perusal of the records reveals that the appellant borrowed a
sum of Rs.1,00,000/- in the month of April 2013. On such borrowal, he
executed four Promissory Notes dated 15.04.2013, 16.04.2013, 17.04.2013
and 18.04.2013. Therefore, there was money transaction between the
appellant and the respondent. A specific stand of the appellant was that he
had never borrowed any amount and he had never executed any Promissory
Note. He was administered with liquor and when he was under
intoxication, his signature was obtained in the Promissory Notes and filed a
suit.
10. A perusal of Ex.A1-Promissory Note, which was executed by
the appellant, reveals that it was registered one before the registering
authority. Though the appellant contended that when he was under the
influence of alcohol, it was obtained on compulsion and force, the appellant
failed to prove the same by substantiate evidence. In fact, even after
execution of Ex.A1, the appellant did not take any steps to return the same
and even did not file any complaint as against the respondent. If at all, it
was obtained on force or compulsion or under influence of alcohol,
immediately, he would have lodged a complaint or had taken appropriate
action as against the respondent.
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S.A.No.1020 of 2022
11. As such the Courts below have analyzed the evidences adduced
by the parties, both the documentary and oral in detail and by giving cogent
reasons, concluded rightly and decreed the suit. Accordingly, this Court is of
the considered opinion that no substantial question of law is involved in this
appeal.
12. In view of above, this Second Appeal is dismissed and the
Judgment and Decree dated 09.12.2021 made in A.S.No.12 of 2020 on the
file of the Principal District and Sessions Judge, Ariyalur, confirming the
Judgment and Decree dated 18.02.2020 made in O.S.No.340 of 2017 on the
file of the Sub Court, Jayankondam, are confirmed. Consequently,
connected miscellaneous petition is closed. There shall be no order as to
costs.
23.01.2023
Index : Yes/No
Internet : Yes/No
Speaking order/Non-speaking order
Lpp
To
1. The Principal District and Sessions Judge, Ariyalur
2. The Subordinate Judge, Jayankondam.
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S.A.No.1020 of 2022
G.K.ILANTHIRAIYAN, J.
Lpp
S.A.No.1020 of 2022
and
C.M.P.No.21882 of 2022
23.01.2023
https://www.mhc.tn.gov.in/judis
