Madras High Court
T.Kalyani vs P.L.M.Nagappan (Died) on 29 March, 2023
A.S.(MD)No.66 of 2009
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 29.03.2023
CORAM:
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
A.S.(MD)No.66 of 2009
and M.P.(MD)No.2 of 2009
1.T.Kalyani
2.Chithra
3.Kavitha
4.Renuka
5.Jyothy ... Appellants / Defendants
Vs.
P.L.M.Nagappan (Died)
2.N.Kalyani
3.N.Muthu Annamalai
4.M.Shanthi
5.S.Yegammai
6.S.Usha
(Respondents 2 to 6 are brought on record as
Lrs of the deceased sole respondent vide
Court dated 27.06.2022 made in C.M.P.
(MD)Nos.3886 and 3887 of 2017) ... Respondents / Plaintiff
PRAYER: This Appeal Suit is filed under Section 96 of C.P.C. against the
judgment and decree passed in O.S.No.300 of 2004 dated 30.06.2008 on the file of
the Additional District Sessions Court, (Fast Track Court No.1), Trichy.
1/10
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A.S.(MD)No.66 of 2009
For Appellants : Mr.S.Ramsundar Vijayaraj
for Mr.C.Jeganathan
For Respondents : Mr.M.Muthukumaran for R3
JUDGMENT
Aggrieved over the judgment and decree passed in O.S.No.300 of 2004
dated 30.06.2008 on the file of the Additional District Sessions Court, (Fast Track
Court No.1), Trichy.
2. For the sake of convenience, the parties are referred to herein, as per their
own ranking before the Trial Court.
3. The brief facts, leading to the filing of this Appeal, are as follows:-
The first defendant is the wife of one A.K.Jeyaraman and the defendants 2
to 5 are the daughters of the said Jeyaraman. The husband of the first defendant
viz., Jeyaraman and the first defendant borrowed a sum of Rs.3 lakhs from the
plaintiff on 17.05.1993 and agreed to pay the interest at the rate of 24% per annum
and also executed a pro-note on the same day. After borrowed the amount, as the
first defendant and her husband failed to pay that amount, the plaintiff issued a
legal notice dated 10.06.1995. Despite the same, that amount has not been paid.
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A.S.(MD)No.66 of 2009
Hence, the plaintiff has filed the suit. Before the suit has been laid, the husband of
the first defendant died. Therefore, the defendants 2 to 5 were impleaded as legal
representative of the said Jeyaraman.
4. The first defendant, who is said to have executed a pro-note, filed a
written statement denying the allegation that on 17.05.1993, she and her husband
borrowed a sum of Rs.3 lakhs and executed a pro-note and agreed to pay the said
amount with the interest at the rate of 24%. It is the contention of the first
defendant that her husband was a subscriber to the chit run by the plaintiff and he
was a successful bidder of a sum of Rs.1 lakh. At the time of chit transactions, he
has executed a blank pro-note in favour of the plaintiff and the same has been
misused after the death of her husband. Hence, it is her contention that either the
defendant has borrowed the amount nor executed the pro-note.
5. Defendants 2 to 5 filed a written statement stating that there was no
necessity or occasion to borrow any money from the plaintiff as alleged by him
and denied the execution of the pro-note.
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A.S.(MD)No.66 of 2009
6. Based on the above pleadings, the trial Court has framed the following
issues?
“1.Whether the pro-note is validly executed and true?
2. Whether the suit amount is borrowed for business
purpose?
3.Whether the defendants were liable to pay that amount?
4.Whether the interest claimed by the plaintiff is excessive?
5. To what other relief, the plaintiff is entitled to?”
7. On the side of the plaintiff, two witnesses were examined as P.W.1 and
P.W.2 and four documents were marked as Ex.A1 to A4. On the side of the
defendant, the first defendant was examined as D.W.1 and no document has been
marked.
8. The trial Court after considering the oral and documentary evidence, has
decreed the suit. Challenging the same, the present appeal has been filed.
9. The only contention of the learned counsel appearing for the defendants /
appellants before this Court is that when the signature in the pro-note has been
denied by the defendants, it is for the plaintiff to discharge the initial onus in
establishing the execution. Without proving the execution of pro-note, the trial
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A.S.(MD)No.66 of 2009
Court has placed the burden on the defendants to discharge their burden for
establishing the alleged chit transaction. According to the learned counsel
appearing for the defendants / appellants it is not proper. It is further submitted
by the learned counsel appearing for the defendants / appellants that one of the
witnesses in the pro-note has not been examined. Hence, it is his submission that
once the plaintiff has failed to discharge the initial onus for establishing the
execution of pro-note, the presumption cannot be drawn automatically. Hence,
prayed for allowing of the appeal.
10. The learned counsel appearing for the plaintiff / respondents would
submit that the defence itself is a vague and there is no specific denial in the
written statement for execution of the pro-note by the first defendant. Even in the
evidence of D.W.1, there is no denial for execution of the pro-note and she has
specifically admitted that she has signed the pro-note and handed over the same to
the plaintiff.
11. In the light of the above submissions, now the points arise for
consideration in this appeal are as follows:
1. Whether the plaintiff has not discharged his initial burden for
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A.S.(MD)No.66 of 2009
establishing the execution of pro-note?
2. If so, whether he is not entitled to recover of the suit
amount?
12. It is the specific case of the plaintiff that the first defendant and her
husband borrowed a sum of Rs.3 lakhs and executed a pro-note-Ex.A1 on
17.05.1993. It is the stand of the first defendant in the written statement that
though her husband's signature is found in the pro-note, the same has been handed
over in a chit transaction. Whereas she has denied her signature in the pro-note.
The entire written statement of the first defendant is read and it is found that the
denial is in the nature of evasive one and there is no specific denial is made. It is
well settled that any facts pleaded in the plaint has to be specifically denied.
Unless specific denial is made in the written statement and the denial is made in
the form of evasive, it should be deemed to be an admission of the pleadings. Be
that as it may. P.W.1 in his evidence has clearly stated that on 17.05.1993, the first
defendant and her husband borrowed a sum of Rs.3 lakhs from him and executed a
pro-note. It is the specific evidence of P.W.1 that both the husband and wife
visited him and executed a pro-note and received the amount. Above evidence has
not been denied by the first defendant in her entire cross examination, except
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A.S.(MD)No.66 of 2009
general suggestion that her signature is not in the pro-note. When it is the specific
evidence of P.W.1 that there was execution and followed by passing of
consideration and the same has not been denied by the first defendant in her cross
examination, such evidence is deemed to be admission on the part of D.W.1. That
apart D.W.1 in her cross examination has clearly admitted that she has also
executed a pro-note, she and her husband signed the pro-note and handed over to
the plaintiff in chit transaction. When the defendant has admitted the signing of
pro-note and take a plea of different transactions, the burden certainly lies on the
defendants, which has not been discharged by the defendants.
13. As already indicated, when the execution and the passing of
consideration has not been denied specifically in the cross examination and D.W.1
herself has admitted the handing over of the signed pro-note, the Court can easily
infer that Ex.A1 has been properly executed and the plaintiff has discharged their
burden to prove the execution. When the execution of pro-note has been
established on record, then the statutory presumption available under Section 118
of the Negotiable Instrument Act, 1881 come into operation. Though such
statutory presumption is rebuttable one, there must be some materials in the way of
admission and a circumstance should be brought on record to rebut the legal
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A.S.(MD)No.66 of 2009
presumption. On perusal of the entire evidence, this Court does not find any
materials in the form of preponderance of probabilities to even rebut the statutory
presumption available in the Negotiable Instrument Act, 1881 viz. the suit pro-
note in this case.
14. In view of the above, the judgment of the trial Court decreeing the suit
as against the first defendant cannot be interfered. However, the trial Court has
passed a personal decree as against the defendants 2 to 5, which is not correct
according to law. If at all any decree to be passed, it can be enforced only from the
estate of the deceased. Particularly, for the decree of payment of money, the same
has to be realized only from the estate of the deceased in the hands of the legal
heirs. With the above modification, the judgment passed by the trial Court is
confirmed.
15. In the result, this Appeal Suit is dismissed with the above modification.
No costs. Consequently, connected miscellaneous petition is closed.
29.03.2023
NCC : Yes /No
Index : Yes/No
vsm
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A.S.(MD)No.66 of 2009
To
1.The Additional District Sessions Court,
(Fast Track Court No.1), Trichy
2.The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
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A.S.(MD)No.66 of 2009
N.SATHISH KUMAR, J.
vsm
A.S.(MD)No.66 of 2009
29.03.2023
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