Madras High Court

Saravanan vs Kandasamy on 22 November, 2023

Author: P.T.Asha

Bench: P.T.Asha

                                                                                  S.A.No.609 of 2022

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                      DATED :22.11.2023

                                                         CORAM :

                                     THE HONOURABLE MS.JUSTICE P.T.ASHA

                                                  S.A.No.609 of 2022
                                                         and
                                                C.M.P.No.12070 of 2022


                     Saravanan                                               ...Appellant

                                                            Vs.

                     Kandasamy                                               ...Respondent


                     PRAYER:
                     Second Appeal filed under Section 100 of the Civil Procedure Code
                     against the Judgment and decree dated 12.10.2020 made in A.S.No.32 of
                     2019 by the learned Sessions (Fast Track Mahila)Judge, Namakkal,
                     confirming the judgment and decree dated 19.03.2019 made in O.S.No.9
                     of 2015 by the learned Subordinate Judge, Rasipuram.


                                      For Appellant        : Mr.S.Saravana Kumar


                                      For Respondent       : No Appearance




https://www.mhc.tn.gov.in/judis
                                                                              S.A.No.609 of 2022

                                                    JUDGMENT

The defendant, who has concurrently been unsuccessful in

both the Courts below, is the appellant before this Court,

challenging the judgment and decree dated 12.10.2020 in

A.S.No.32 of 2019 passed by the learned Sessions (Fast Track

Mahila) Judge, Namakkal, confirming the judgment and decree

dated 19.03.2019 passed in O.S.No.9 of 2015 by the learned

Subordinate Judge, Rasipuram.

2. The brief facts of the case are set out hereinbelow and

the parties are referred to in the same array as before the Trial

Court.

FACTS OF THE CASE:

2.1. It is the case of the plaintiff that the defendant had

borrowed a sum of Rs.75,000/- (Rupees Seventy Five Thousand

only) to meet his urgent family necessity on 26.01.2013 and

executed a promissory note on the said date, agreeing to repay the

amount together with interest at the rate of 12% per annum. On https://www.mhc.tn.gov.in/judis

05.05.2013, the defendant had once again borrowed a further sum

of Rs.75,000/- (Rupees Seventy Five Thousand only) for which, he

had executed a promissory note agreeing to repay the money

together with interest 12% per annum.

2.2. Though the defendant agreed to repay the amount on

demand, when the plaintiff had requested repayment, the defendant

had not come forward to make the payment. This constrained the

plaintiff to issue a legal notice dated 22.09.2014 to the defendant

which was also received by him on the very next day i.e., on

23.09.2014. The plaintiff would further submit that the defendant is

not entitled to any relief under the Debt Relief Scheme. Since the

money has not been paid, the plaintiff had come forward with the

suit in question.

2.3. The defendant had filed a written statement, inter alia,

at the outset, contending that the two promissory notes are

fabricated and do not contain his signatures and left thumb

impression. Therefore, it was the categorical contention of the

defendant that he had neither executed the promissory notes nor https://www.mhc.tn.gov.in/judis

affixed his left thumb impression on them.

2.4. However, the defendant would come forward with a

further contention that if after the signatures are sent for forensic

examination and it is found that signatures and left thumb

impression are those of his, then in such an event, the Court should

take note of the fact that, 7 years ago, the defendant had approached

the plaintiff for supplying mud for his brick kiln. The plaintiff had

permitted him to dig and remove the mud. However, for every truck

load of mud removed, the plaintiff insisted on payment. The

defendant had sought time till the sale of the bricks to repay the

money. Therefore, the plaintiff had insisted upon the defendant

providing him those promissory notes and accordingly, two blank

promissory notes had been executed and the defendant’s left thumb

impression was affixed on them.

2.5. The defendant would submit that on the sale of the

bricks, he had repaid the sum of Rs.54,500/- (Rupees Fifty Four

Thousand and Five Hundred only) by which, the repayment due to https://www.mhc.tn.gov.in/judis

the plaintiff had been settled. When he had asked the plaintiff to

return the promissory notes, he was informed that the promissory

notes were misplaced and that the plaintiff would take steps to

search the notes and hand them over the minute he locates them.

The plaintiff, in June 2014, insisted upon the defendant, to dig mud

from his lands. This was turned down by the defendant. Therefore,

angered by this, the plaintiff had created these promissory notes.

TRIAL COURT:

3. The Trial Court has framed the following issues:

“1.Whether the plaintiff is entitled to get decree for the suit claim as prayed for?

2.Whether the suit promissory notes are true, valid and supported by consideration?

3.Whether the contention of defendant that he discharged the suit loan by paying Rs.50,000/-

towards principal and Rs.4,500/- towards interest is true?

4.Whether the suit promissory notes are materially altered?

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

5.To what other relief is the plaintiff

entitled?”

4. The plaintiff had examined himself as P.W.1 and

marked Exs.A1 to A4. On the side of the defendant, the defendant

had examined himself as D.W.1 and one Kalaiarasan as D.W.2 and

no documents were marked. The handwriting expert's report was

marked as Ex.C1.

5. Ultimately, the learned Subordinate Judge, by judgment

and decree dated 19.03.2019, has decreed the suit as prayed for

together with interest at the rate of 9% per annum from the date of

the plaint till the date of judgment and thereafter, at the rate of 6%

per annum.

LOWER APPELLATE COURT:

6. Aggrieved by the said judgment and decree, the

defendant had filed A.S.No.32 of 2019 on the file of the Sessions

(Fast Track Mahila) Court, Namakkal. By judgment and decree

dated 12.10.2020, the learned Judge dismissed the appeal and https://www.mhc.tn.gov.in/judis

aggrieved by the concurrent judgment and decree, this second

appeal was filed by the defendant.

7. Mr.S.Saravana Kumar, learned counsel appearing on

behalf of the appellant, would state that the defendant has disputed

his signatures, despite which, the plaintiff had not taken any steps

to verify the signatures and the left thumb impression. He would

submit that Ex.C1 – handwriting expert's report would show that

the left thumb impression cannot be examined as it is faint.

Therefore, he would submit that the plaintiff has failed to prove the

execution of the promissory notes and he is not entitled to the

decree and the same has to be set aside.

8. The arguments that are now advanced are that since the

defendant had disputed the signatures, it is for the plaintiff to prove

the same, which exercise has not been done successfully by the

plaintiff and therefore, the findings of the Courts below that the

promissory notes were executed by the defendant is per se

erroneous and therefore, the judgment and decree has to be set https://www.mhc.tn.gov.in/judis

aside.

9. The learned counsel for the appellant would argue that

there are discrepancies in the evidence of P.W.1 and P.W.2. He

would also submit that there is a material alteration in the

promissory notes and an issue has not been framed in this regard.

10. Heard the learned counsel appearing for the appellant.

DISCUSSION:

11. The defendant had come forward with 2 defences.

Firstly, he would submit that the very signatures and the left thumb

impression are not his and that the same are subject to proof.

Further, in paragraph nos.5 and 6 of the written statement, the

defendant would submit as follows:

“5/ xUf;fhy; jhth " V ", " gp " g[nuhnehl;Lfspy; cs;s ifnuiffSk; ifbahg;g';fSk; ,g;gpujpthjpa[ilaJjhd;

; k; gl;rj;jpy; jhth " V "," gp "

vd;W thjp epUg: pfF g[nuhnehl;Lfs; ,uz;Lk; thjpahy; rpU!;of;fg;gl;litfshFk;/ https://www.mhc.tn.gov.in/judis

6/ cz;ikapy; 7 Mz;LfSf;F Kd; rpj;jpiu khjj;jpy; ,g;gpujpthjp thjpia mDfp br';fy; Nisf;F kz; ntz;Lk; vd;W nfl;ljpy; thjp jd; epyj;jpy; ,Ue;J btl;o vLj;Jf;bfhs;S';fs; vd;W brhd;dhh;/ Mdhy; xt;bthU eil kz;Qqf;Fk; gzk; bfhLf;f ,k;rpj;jhh;/ mjw;F ,g;gpujpthjp br';fy; Nisf;F beUg;g[ itj;J br';fy; tpw;wt[ld; tl;oa[ld; brYj;jp tpLtjhf brhd;dhh;/ mjw;F thjpa[k; xg;gf[ b; fhz;L ,uz;L btw;W g[nuhnehl;Lfspy; nuiffisa[k; ifbahg;g';fisa[k; bgw;Wf; bfhz;lhh;/”

12. The defendant had admitted to the fact that he has

executed two blank promissory notes, in which, he has not only

signed but also affixed his left thumb impression. In the light of this

admission and the alternative plea taken by the defendant in

paragraph nos.5 and 6 of the written statement, the argument of the

learned counsel that the plaintiff has failed to prove the execution

of the suit promissory notes is without any basis.

13. Both the Courts below have considered the evidence

in extenso and decreed the suit. I see no reason to interfere with the

concurrent findings of the Courts below and hence, this second

appeal is liable to be dismissed, particularly, when the appellant https://www.mhc.tn.gov.in/judis

does not contemplate any question of law much less a substantial