Kuppusamy vs Manoharan
2023 Latest Caselaw 5269 Mad

                                                                                    S.A.No.706 of 2010
                                                                                   and M.P.No.1 of 2010


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                    DATED : 02.06.2023

                                                         CORAM

                                  THE HONOURABLE MRS. JUSTICE R.HEMALATHA
                                                    S.A.No.706 of 2010
                                                   and M.P.No.1 of 2010


                     Kuppusamy                                           ...Appellant
                                                           Vs.

                     Manoharan                                           ... Respondent


                     Prayer : Second Appeal filed under Section 100 of CPC, 1908 against the
                     decree and judgment dated 09.03.2007 passed in A.S. No.18 of 2005, on
                     the file of the Sub Court, Kallakurichi, upholding the decree and
                     judgment dated 02.11.2004 passed in O.S. No.219 of 2003, on the file of
                     the III Additional District Munsif Court, Kallakurichi.


                                   For Appellant           : Ms.B.Sivagami
                                                             for M/s.R.Balasubramanian
                                   For Respondent          : Mr.Gokul
                                                             for M/s.P.V.Law Associates




                     Page 1 of 12

https://www.mhc.tn.gov.in/judis
                                                                                  S.A.No.706 of 2010
                                                                                 and M.P.No.1 of 2010




                                                     JUDGMENT

The unsuccessful defendant before both the courts below has

filed the present second appeal.

2. The respondent/plaintiff filed the suit in O.S. No.219 of

2003, on the file of the III Additional District Munsif Court,

Kallakurichi, for recovery of a sum of Rs.25,395/- together with interest

and thereafter at the rate of 9% per annum on the principal amount of

Rs.20,000/- from the date of plaint till the date of realization from the

appellant/defendant due under a promissory note dated 18.03.2000

(Ex.A1) executed by the appellant/defendant.

3. For the sake of convenience, the parties are referred to as

per their ranking in the trial court and in appropriate places, their rank in

the present second appeal would also be indicated.

https://www.mhc.tn.gov.in/judis S.A.No.706 of 2010 and M.P.No.1 of 2010

4. The case of the plaintiff in nutshell is as follows:

The defendant executed a promissory note (Ex.A1) for

Rs.20,000/- on 18.03.2000 in favour of one Jayamani, who in turn

assigned the same (Ex.A2) in favour of the plaintiff on 23.08.2000.

Thereafter, the plaintiff demanded the amount due under the promissory

note from the defendant. Despite repeated demands made by the plaintiff,

the defendant did not come forward to make good the payment.

Therefore, the plaintiff issued a legal notice dated 11.02.2003 (Ex.A3) to

the defendant and requested the latter to pay the amount due under the

promissory note (Ex.A1). The defendant received the said notice, as

evidenced by the postal acknowledgment card (Ex.A4), and sent a reply

notice dated 14.02.2003 (Ex.A5), which contained false allegations.

Hence the suit.

5.The suit was resisted by the defendant on the following

grounds :

i. The defendant did not borrow any amount from the

assigner Jayamani Ammal and executed the suit

https://www.mhc.tn.gov.in/judis S.A.No.706 of 2010 and M.P.No.1 of 2010

promissory note.

ii. Jayamani Ammal's husband borrowed a sum of

Rs.45,000/- from the defendant on 10.07.2000 and

executed a promissory note in his favour. Since the

defendant demanded the amount due under the

promissory note from Jayamani Ammal's husband,

Jayamani Ammal fabricated the present promissory

note (Ex.A1) and made over the same in favour of the

plaintiff.

iii. Hence, there is no valid consideration for the suit

promissory note and therefore, the suit filed by the

plaintiff should be dismissed.

6. On the basis of the above pleadings, the trial Court framed

the following issues :

i. Whether the suit pronote is fabricated document ?

ii. Whether the plaintiff is entitled to the suit claim ?

iii. To what relief, if any, the plaintiff is entitled ?

https://www.mhc.tn.gov.in/judis S.A.No.706 of 2010 and M.P.No.1 of 2010

7. In the trial Court, the plaintiff examined himself and four

other witnesses and marked Ex.A1 to Ex.A5. The defendant examined

himself. However no documentary evidence was adduced on his side.

8. After full contest, the learned III Additional District Munsif,

Kallakurichi decreed the suit in favour of the plaintiff, vide his decree

and judgment dated 02.11.2004 on the following grounds :

i. The plaintiff has proved the execution of the suit promissory note

by examining the scribe and the assigner as PW4 & PW5

respectively and the defendant did not take steps to prove that the

signature found on the promissory note (Ex.A1) is not that of his.

ii. Mere denial of execution in the written statement without valid

evidence cannot be accepted.

iii. The executor cannot dispute the absence or inadequacy of

consideration in a suit filed by the assignee.

https://www.mhc.tn.gov.in/judis S.A.No.706 of 2010 and M.P.No.1 of 2010

9.Aggrieved over the same, the defendant filed an appeal in

A.S. No.18 of 2005, before the Sub Court, Kallakurichi. The learned

Subordinate Judge, Kallakurichi, after analysing the oral and

documentary evidence adduced on both sides upheld the findings

recorded by the trial Court and dismissed the appeal filed by the

defendant vide his decree and judgment dated 09.03.2007.

10. Now the present second appeal is filed by the defendant.

Notice of motion was issued to the respondent and after several

adjournments, the case was posted today for final hearing. Substantial

questions of law raised by the learned counsel for the appellant in the

grounds of appeal are as follows:

i. "Whether or not the trial court has committed error in interpreting

the scope and ambit of the Negotiable Instruments Act, 1881 ?

ii. Whether or not the trial court has committed error in holding that

the executor cannot dispute the absence of or inadequate

consideration in a suit filed by the assignee?

https://www.mhc.tn.gov.in/judis S.A.No.706 of 2010 and M.P.No.1 of 2010

iii. Whether or not the trial court has committed error in decreeing the

suit on the basis of evidence of PW5, when especially Ex.A2

discloses the payment of Rs.25,000/- for the made over, but in the

cross examination she has deposed that the made over was

executed by her in lieu of the loan amount due by her to the

respondent/plaintiff?

iv. In any event, when the respondent/plaintiff or PW5/Assigner have

not placed any account books, or any anterior records to prove that

the respondent/plaintiff has advanced a loan of Rs.25,000/- to

PW5, the trial court ought to have taken adverse inference under

Section 114 of Evidence Act?

v. Whether the Courts below are correct in holding that the

appellant/defendant has not established/proved that the signature

found in Ex.A1 is not that of his signature, when especially the

appellant/defendant has denied the execution of Ex.A1 from the

initial stage?

https://www.mhc.tn.gov.in/judis S.A.No.706 of 2010 and M.P.No.1 of 2010

11. Heard Ms.B.Sivagami, learned counsel for the appellant

and Mr.Gokul, learned counsel for the respondent.

12. Ms.B.Sivagami, learned counsel for the appellant would

contend that when the scribe of the promissory note (EX.A1) turned

hostile, the Courts below should not have taken into account his

evidence and that there are discrepancies in the evidence of PW1, PW4

& PW5. It is also her contention that initial burden of proof heavily lies

on the plaintiff and that when he did not discharge the same, both the

Courts below should not have decreed the suit in favour of the plaintiff.

13. Per contra, Mr.Gokul, learned counsel for the respondent

contended that both the Court below after appreciating the oral and

documentary evidence adduced on both sides had rightly held that the

plaintiff had proved the execution of the promissory note and that there

is no substantial question of law involved in the present second appeal.

Therefore, he prayed for dismissal of the present second appeal.

https://www.mhc.tn.gov.in/judis S.A.No.706 of 2010 and M.P.No.1 of 2010

14. It is true that the defendant in his written statement denied

the execution of the promissory note. In order to prove the same, the

plaintiff examined himself as PW1 and also the scribe of the promissory

note as PW4. The scribe turned hostile. However, a perusal of his

evidence shows that he had identified the signature of the defendant on

the suit promissory note (Ex.A1). The First Appellate Court accepted the

particular portion of the evidence of PW4 with regard to the execution of

Ex.A1 by the defendant since there was no cross examination by the

defendant to the PW4 on this aspect. Apart from examining the scribe the

plaintiff had examined the assignor as PW5 and she had deposed about

the execution of the promissory note by the defendant and deposed that

after borrowing a sum of Rs.20,000/-. The evidence of PW1 and PW5

coupled with Ex.A1 clearly shows that the defendant executed the suit

promissory note. The defendant also did not take any steps to send

Ex.A1 to an expert to show that the signature found on Ex.A1 is not that

of his. Therefore, both the Courts below were right in observing that

mere denial of execution without valid evidence cannot be accepted.

https://www.mhc.tn.gov.in/judis S.A.No.706 of 2010 and M.P.No.1 of 2010

Apart from that, the defendant except examining himself did not examine

any other witness to prove his contentions raised in the written statement.

His specific contention is that one Muthu Chettiar husband of Jayamani

Ammal borrowed a sum of Rs.45,000/- from him and that when he

demanded the said amount from Muthu Chettiar he clandestinely made

his wife to fabricate Ex.A1 and also assigned the same in favour of the

plaintiff. Except the ipse dixit of the defendant there is no other evidence

on the side of the defendant. Therefore, both the Courts below were right

in holding that the defendant executed the promissory note (Ex.A1) and

there is a valid assignment in favour of the plaintiff. In fact, there is no

substantial question of law involved in the present second appeal and

therefore, deserves to be dismissed.

15. In the result,

i. the Second Appeal is dismissed. No costs.

Consequently, connected Miscellaneous Petition is

closed.

https://www.mhc.tn.gov.in/judis S.A.No.706 of 2010 and M.P.No.1 of 2010

ii. the decree and judgment dated 09.03.2007 passed in

A.S. No.18 of 2005, before the Sub Court,

Kallakurichi, and the decree and judgment dated

02.11.2004 passed in O.S. No.219 of 2003, before the

III Additional District Munsif Court, Kallakurichi, are

upheld.

02.06.2023 Index: Yes/No Internet: Yes/No Speaking/Non-Speaking order mtl

To

1. The Sub Court, Kallakurichi.

2. The III Additional District Munsif Court, Kallakurichi.

3. The Section Officer, VR Section, High Court, Madras.

https://www.mhc.tn.gov.in/judis S.A.No.706 of 2010 and M.P.No.1 of 2010

R. HEMALATHA, J.

mtl

S.A.No .706 of 2010 and M.P.No.1 of 2010

02.06.2023

https://www.mhc.tn.gov.in/judis