Madras High Court
Balakrishnan vs Kalyanaraman on 22 November, 2023
A.S.No.819 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 22.11.2023
CORAM
THE HONOURABLE MR. JUSTICE S.SOUNTHAR
A.S.No.819 of 2019
Balakrishnan ... Appellant
Vs.
Kalyanaraman ... Respondent
Prayer: Fist Appeal filed under Section 96 of the Civil Procedure Code,
against the judgment and decree dated 08.02.2018 made in O.S.No.22 of 2015
on the file of the III Additional District Judge, Kallakurichi.
For Appellant : Mr.C.Munusamy
For Respondent : No appearance
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1/10
A.S.No.819 of 2019
JUDGMENT
The unsuccessful defendant in the suit for recovery of money
based on the promissory notes is the appellant. The respondent herein filed a
suit for recovery of money based on two promissory notes dated 18.12.2014
and 21.12.2014 each for value of Rs.8,50,000/-.
2. It is stated by the respondent in the plaint averment that on
18.12.2014 and 21.12.2014 the appellant received a sum of Rs.8,50,000/- each
and agreed to repay the same with the interest at the rate of 12% per annum
and executed the suit promissory notes A & B. In spite of several demands the
appellant failed to repay the amount and hence, legal notice was issued by the
respondent on 01.06.2015 calling upon the appellant to repay the amount due
under the promissory notes. Though the said notice was received by the
appellant, no reply was given by him and hence, the respondent was
constrained to file a suit for recovery of money based on the promissory notes
A & B.
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3. The appellant herein filed a written statement denying the
execution of promissory notice and receipt of consideration. It was his specific
case that 10 months prior to filing of written statement, the respondent had
abducted him and got the suit promissory notes executed by employing
coercion. In this regard a police complaint was given to Kachirapalayam
Police Station and it was assured by the police that promissory notes obtained
from the appellant by employing coercion would be handed over to him.
However, the respondent without handing over the promissory notes, has come
up with the suit seeking recovery of money. On these pleadings, the appellant
sought for dismissal of the suit.
4. Before the trial Court, the respondent was examined as PW1.
One Pachamuthu who attested the suit promissory notes was examined as
PW2. The scribe of the suit promissory notes was examined as PW3. On
behalf of the respondent, five documents were marked as Ex.A1 to Ex.A5. The
appellant was examined as DW1 and two documents were marked on his side
as Ex.B1 & Ex.B2. The wordings found in the suit promissory notes Ex.A1
was written in a white paper by PW3 and the same was marked as Ex.C1.
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5. The trial Court on appreciation of oral and documentary
evidence available on record, came to the conclusion that the execution of
promissory notes were proved and consequently granted decree for recovery
of money as prayed for. Aggrieved by the same, unsuccessful defendant has
come up with this First Appeal.
6. The learned counsel for the appellant submitted that the suit
promissory notes were obtained from the appellant by putting him under
coercion and therefore, the Court below ought not to have granted decree for
money as prayed for.
7. The learned counsel for the appellant further submitted that the
respondent/plaintiff failed to prove his financial capacity to advance loan and
hence, the decree passed by the Court below is liable to be set aside. The
learned counsel for the appellant further submitted that though the respondent
as PW1 admitted about his money lending business, he failed to lead any
documentary evidence to prove his lending business and therefore, the Court
below ought to have rejected the claim of the respondent.
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8. On the basis of submission of the learned counsel for the
appellant and pleadings following points for consideration is framed in his
appeal:
a) Whether execution of suit promissory note is proved or not?
b) Whether the respondent/plaintiff is entitled to suit claim?
9. Points A & B: The suit was resisted by the appellant mainly on
the ground that his signature in the promissory notes were obtained by the
respondent by employing coercion. Therefore, there is no dispute with regard
to the signature of the appellant available in the suit promissory notes and the
only question is whether he subscribed his signature voluntarily or not.
10. It is settled law, whenever coercion is pleaded, the same
should be proved by the person who pleads the same. In the case on hand, the
appellant/defendant pleaded coercion in the written statement, but there is no
evidence available on record to prove employment of coercion by the
respondent except the interested testimony of appellant as DW1. For the
reasons best known to him, he has not examined any independent witnesses to
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prove alleged coercion.
11. In the written statement it was pleaded by the appellant that he
was abducted by the respondent and his men 10 months prior to the filing of
the written statement and the suit promissory notes were obtained by putting
him under duress. It was also averred that a police complaint was also given to
Kachirapalayam Police Station in this regard by wife of the appellant.
However, the copy of the police complaint was not at all produced before the
Court below. Moreover, before filing of the suit, the respondent issued pre-suit
notice on 01.06.2015 under Ex.A3 and Ex.A4. The said notice was also
received by the appellant under Ex.A5 postal acknowledgment card. However,
the appellant failed to give any reply refuting the allegations in the said notice.
If really the suit promissory notes had been obtained by employing coercion
immediately on receipt of pre-suit notice, the appellant should have replied to
the respondent mentioning the employment of coercion. The appellant has not
given any acceptable reason for his failure to give reply to the pre-suit notice
of the respondent.
12. In such circumstances, the defence made by the appellant as if
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suit promissory notes were executed under coercion, is liable to be rejected as
an after thought in the absence of any evidence to corroborate the interested
testimony of appellant as DW1.
13. In order to prove due execution of suit promissory notes, the
respondent had examined himself as PW1 and he deposed in favour of the
averment found in the plaint. One of the attestors of the suit promissory notes
namely, Pachamuthu was examined as PW2 and he clearly deposed about due
execution of suit promissory notes by the appellant and receipt of
consideration. Apart from that the scribe of the suit promissory notes, one
Kolanchi was examined as PW3, he also deposed about due execution and
receipt of consideration by the appellant. The evidence of PW2 and PW3 are
complementary to each other and nothing had been culled out in the cross
examine to discard their evidence.
14. In such circumstances, the trial Court based on the evidence
of PW1 to PW3 rightly came to the conclusion that due execution of
promissory notes have been proved by the respondent. Once the Court comes
to the conclusion that due execution of suit promissory notes were proved, the
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respondent is entitled to the benefit of presumption under Section 118 of the
Negotiable Instruments Act, regarding passing of consideration and the same
has been accepted by the trial Court and the suit has been decreed.
15. In view of the discussions made earlier, this Court concurs
with the findings of the trial Court and the respondent is entitled to the decree
for recovery of money as prayed for. Both the points for determination are
answered accordingly. The appellant has not made out any case to cause
interference with the findings reached by the trial Court and accordingly, the
First Appeal stands dismissed.
16. a) In the result, the First Appeal stands dismissed by
confirming the judgment and decree passed by the Courts below.
b) In the facts and circumstances of the case, there shall be no
order as to costs.
22.11.2023
Index : Yes/No
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Internet : Yes/No
Neutral Citation Case : Yes/No
dna
To
The III Additional District Judge, Kallakurichi.
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S.SOUNTHAR, J.
dna
22.11.2023
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