Madras High Court
M.Murali vs S.Latha on 21 June, 2023
S.A.(MD)No.167 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 21.06.2023
CORAM:
THE HONOURABLE MR.JUSTICE ABDUL QUDDHOSE
S.A.(MD)No.167 of 2023
and
C.M.P.(MD)No.3496 of 2023
M.Murali ... Appellant
/Vs./
S.Latha ... Respondent
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code to set aside the Judgment and Decree dated 20.10.2022 made in
A.S.No.43 of 2021 on the file of the II Additional Sub Court,
Tiruchirappalli, confirming the judgment and decree dated 01.09.2021
made in O.S.No.258 of 2016 on the file of the Principal Sub Court,
Tiruchirappalli, and to allow this appeal.
For Appellant : Mr.C.Jeyaprakash
For Respondent : Mr.H.Arumugam
1/8
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S.A.(MD)No.167 of 2023
JUDGMENT
This second appeal has been filed challenging the concurrent
findings of the Courts below. The defendant in the suit in O.S.No.258 of
2016 on the file of the Principal Sub Court, Tiruchirappalli is the
appellant herein. The respondent is the plaintiff in the said suit. The suit
was filed by the respondent / plaintiff for recovery of a sum of
Rs.2,62,000/- together with interest and costs from the appellant /
defendant.
2. According to the respondent / plaintiff, the appellant / defendant
borrowed a sum of Rs.2,00,000/- on 18.07.2013 by executing a demand
promissory note dated 18.07.2013, which was marked as Ex.A1. The
appellant / defendant did not repay the loan with interest as per the
demand promissory note (Ex.A1) and hence, the respondent / plaintiff
had also issued a legal notice on 19.10.2015 (Ex.A2) prior to the
institution of the suit. The appellant / defendant has sent a reply dated
27.10.2015 (Ex.A3). Since the loan amount was not repaid, despite the
legal notice dated 19.10.2015 (Ex.A2), the respondent / plaintiff filed the
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S.A.(MD)No.167 of 2023
suit for recovery of money. In the forthcoming paragraphs, the parties
are described as per their litigative status in the suit.
3. Originally before the trial Court, the defendant was set exparte
and an exparte decree dated 31.08.2016 came to be passed in favour of
the plaintiff as prayed for in the plaint in O.S.No.258 of 2016.
Thereafter, the defendant filed an application to set aside the exparte
decree. The trial Court allowed the said application on payment of costs
within the stipulated time. Admittedly, the defendant paid the costs as
directed by the trial Court and the suit was restored to file and thereafter,
the defendant had also filed his written statement.
4. On the side of the plaintiff, three documents were filed and
marked as Exs.A1 to A3 and the details are as follows:
Ex.A1 18.07.2013 Pronote Original
Ex.A2 19.10.2015 Advocate Notice Office Copy
Ex.A3 27.10.2015 Reply Notice Copy
The plaintiff herself was examined as a witness (P.W.1). However, on the
side of the defendant, neither any document was filed nor any witness
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S.A.(MD)No.167 of 2023
was examined. Even though the defendant had filed his written
statement denying that he had borrowed a sum of Rs.2,00,000/- under the
promissory note dated 18.07.2013 (Ex.A1), the defendant had not let in
any oral and documentary evidence to disprove the claim of the plaintiff.
5. There is always a presumption of debt in favour of the plaintiff
as per the provisions of Section 118 of the Negotiable Instruments Act,
1881, as she has produced the promissory note duly signed by the
defendant (Ex.A1) to prove that the defendant had borrowed a sum of
Rs.2,00,000/- on 18.07.2013 from the plaintiff and had agreed to repay
the same with interest at 12% per annum.
6. Since no oral or documentary evidence was produced by the
defendant to disprove the claim of the plaintiff and the plaintiff having
discharged his initial burden of proving the debt as per the provisions of
Section 101 of the Indian Evidence Act, 1872, this Court is of the
considered view that the trial Court has rightly decreed the suit in
O.S.No.258 of 2016 in favour of the plaintiff by its judgment and decree
dated 01.09.2021. The lower appellate Court, namely, II Additional
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S.A.(MD)No.167 of 2023
District Court, Tiruchirappalli, in A.S.No.43 of 2021, which was filed by
the defendant aggrieved by the judgment and decree of the trial Court in
O.S.No.258 of 2016 dated 01.09.2021, has rightly confirmed the findings
of the trial Court, by dismissing the appeal filed by the defendant.
Aggrieved by the concurrent findings of the Courts below, this second
appeal has been filed.
7. This Court is of the considered view that only based on the oral
and documentary evidence available on record and considering the fact
that the plaintiff having proved her claim by filing the documentary
evidence in the form of demand promissory note (Ex.A1) and her notice
(Ex.A2), which have not been disproved by the defendant through any
oral or documentary evidence, the Courts below have rightly rejected the
contentions of the defendant. The issues raised by the appellant /
defendant in this second appeal have all been rightly considered by the
Courts below and there are no debatable questions of fact or law
involved for further consideration by this Court under Section 100 of
CPC.
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S.A.(MD)No.167 of 2023
8. For the foregoing reasons, there is no merit in this second
appeal. Accordingly, this Second Appeal is dismissed. No costs.
Consequently, connected Miscellaneous Petition is closed.
21.06.2023
Index : Yes / No
NCC : Yes / No
Sm
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.167 of 2023
TO:
1.The II Additional Sub Court, Tiruchirappalli.
2.The Principal Sub Court, Tiruchirappalli,
3.The Section Officer,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
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S.A.(MD)No.167 of 2023
ABDUL QUDDHOSE, J.
sm
Judgment made in
S.A.(MD)No.167 of 2023
Dated:
21.06.2023
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