Madras High Court
K.Tamilselvam vs Fernadshaw on 31 March, 2023
S.A.(MD)No.453 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 31.03.2023
CORAM:
THE HONOURABLE MR.JUSTICE ABDUL QUDDHOSE
S.A.(MD)No.453 of 2022
and
C.M.P.(MD)No.5593 of 2022
1.K.Tamilselvam
2.T.Devi ... Appellants
/Vs./
Fernadshaw ... Respondent
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code to set aside the Judgment and Decree dated 29.01.2019 passed in
A.S.No.33 of 2015 on the file of the learned Principal District Judge,
Tiruchirapalli, whereby confirmed the Final Decree and Judgment dated
15.07.2014 passed in O.S.No.484 of 2010 by the learned Principal
Subordinate Judge, Tiruchirappalli.
For Appellants : Mr.M.Dinesh Hari Sudarasan
For Respondent : Mr.V.George Raja
1/8
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S.A.(MD)No.453 of 2022
JUDGMENT
This second appeal has been filed challenging the concurrent
findings of the Courts below. The defendants in the suit in O.S.No.484
of 2010 on the file of the Principal Sub Court, Tiruchirappalli, are the
appellants herein. The respondent is the plaintiff in the suit. The suit
was filed for recovery of money, based on a bond executed by the
appellants / defendants in favour of the respondent / plaintiff, under
which the appellants / defendants had borrowed a sum of Rs.90,000/-
from the respondent / plaintiff. Since the appellants / defendants failed to
repay the loan amount, the suit was filed by the respondent / plaintiff.
2. As seen from the written statement filed by the appellants /
defendants, they had taken a stand that they did not borrow a sum of
Rs.90,000/- as claimed by the respondent / plaintiff, but had borrowed
only a sum of Rs.50,000/-. However, they have admitted the signature
and the date in the bond, which was marked as Ex.A1, but the loan
amount was alone disputed.
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S.A.(MD)No.453 of 2022
3. Before the trial Court, the respondent / plaintiff filed ten
documents, which were marked as Exs.A1 to A10. Three witnesses were
also examined on the side of the respondent / plaintiff, namely P.W.1 to
P.W.3. On the side of the appellants / defendants, seven documents were
filed which were marked as Exs.B1 to B7 and one witness was examined,
namely the first appellant as D.W.1.
4. Apart from the bond (Ex.A1) dated 01.09.2007, executed by the
appellants / defendants, in favour of the respondent / plaintiff, the
respondent / plaintiff has also filed pre suit notices, which were marked
as exhibits. On the side of the appellants / defendants, they have filed
counterfoils relating to certain cheques issued by them in favour of the
respondent / plaintiff, which was marked as Ex.B1 and they have also
filed their bank passbooks, which were marked as exhibits on their side.
5. Having admitted the signature in the bond dated 01.09.2007
(Ex.A1) and having admitted that they had borrowed money from the
respondent / plaintiff, the trial Court, based on the documents filed by the
respondent / plaintiff, which were marked as exhibits on their side, has
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S.A.(MD)No.453 of 2022
rightly come to the conclusion that the respondent / plaintiff has
discharged his initial burden, as per the provisions of Section 101 of the
Indian Evidence Act, 1872, for proving the suit claim. Certainly, the
onus to disprove the claim of the respondent / plaintiff has been shifted
to the appellants / defendants.
6. However, as seen from the documentary evidence placed on
record by the appellants / defendants, which were marked as Exs.B1 to
B7, they have been unable to disprove the suit claim of the respondent /
plaintiff. The documents filed by the appellants / defendants will not in
any way make the Court to believe the contentions of the appellants /
defendants that they had borrowed only a sum of Rs.50000/- and date
and the amount mentioned in the bond (Ex.A1) was not filled by them.
7. As seen from the oral and documentary evidence available on
record, there is no evidence available on record to prove the contentions
of the appellants / defendants that they never borrowed a sum of
Rs.90,000/-, but borrowed only a sum of Rs.50,000/- and that they did
not fill up the date and the amount in the bond (Ex.A1).
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S.A.(MD)No.453 of 2022
8. Section 118 of the Negotiable Instruments Act, 1881, makes it
clear that there is a presumption in favour of the respondent / plaintiff, as
he has produced sufficient evidence in the form of exhibits to prove that
he is entitled for the suit claim, which has not been rebutted by the
appellants / defendants by producing any contra evidence to support their
contentions as raised in their written statement.
9. The trial Court has rightly applied the presumption theory as
per Section 118 of the Negotiable Instruments Act, 1881, by decreeing
the suit in favour of the respondent / plaintiff. The lower appellate Court,
namely the Principal District Judge, Tiruchirappalli, in the appeal filed by
the appellants / defendants, in Appeal Suit No.33 of 2015 has also rightly
confirmed the findings of the trial Court by dismissing the first appeal.
10. The issues raised in the grounds of this second appeal have
been rightly considered by the Courts below, based on the oral and
documentary evidence available on record. There are no substantial
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S.A.(MD)No.453 of 2022
questions of law involved in this second appeal and there is no merit in
this Second Appeal. Accordingly, this Second Appeal is dismissed.
There shall be no order as to costs. Consequently, connected
Miscellaneous Petition is closed.
31.03.2023
Index : Yes / No
NCC : Yes / No
Sm
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.453 of 2022
TO:
1.The Principal District Judge, Tiruchirapalli.
2.The Principal Subordinate Judge, Tiruchirappalli.
3.The Section Officer,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
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S.A.(MD)No.453 of 2022
ABDUL QUDDHOSE, J.
Sm
Judgment made in
S.A.(MD)No.453 of 2022
Dated:
31.03.2023
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