Madras High Court
Vijayalakshmi @ Vennila vs P.Kandaswamy on 28 November, 2023
2023:MHC:5213
S.A.No.289 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 20.10.2023
PRONOUNCED ON : 28.11.2023
CORAM
THE HONOURABLE MR. JUSTICE S.SOUNTHAR
S.A.No.289 of 2017
Vijayalakshmi @ Vennila ... Appellant
vs.
P.Kandaswamy ... Respondent
Prayer:- Second Appeal is filed under Section 100 of Civil Procedure Code,
praying to set aside the Judgement in A.S.No.10 of 2015 and decree dated
29.07.2015 on the file of the Principal District Judge, Namakkal confirming
the judgement and decree dated 07.10.2013 made in O.S.No.317 of 2008 on
the file of the Sub-Ordinate Judge of Trichencode.
For Appellant : Mrs.V.Srimathi
For Respondent : Mr.N.Manokaran
JUDGMENT
The unsuccessful defendant in a suit for recovery of money based on
promissory note is the appellant. The respondent herein filed a suit for
recovery of money. The suit was decreed by the Trial Court and the findings
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of the Trial Court were affirmed by the First Appellate Court. Aggrieved by
the concurrent findings of the First Appellate Court, the appellant is before
this Court.
2. According to the respondent/plaintiff, the appellant herein
borrowed a sum of Rs.1,50,000/- from the respondent for family expenses
on 02.01.2005 and executed a suit promissory note agreeing to pay interest
at the rate of 18% per annum. Inspite of several demands by the respondent,
appellant failed to repay the same and hence, the suit was laid for recovery
of money based on the said promissory note.
3. The appellant/defendant filed written statement denying very
execution of the promissory note and borrowal of amount by her. The
averment of the respondent as if, he demanded the money back was also
denied in the written statement. It was further averred by the appellant that
her father A.Muthusamy executed a Settlement Deed in respect of a small
house in her favour. The brother of the appellant requested the appellant to
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transfer the said house in his name and the same was refused by the
appellant. Therefore, the said Ramachandiran developed ill will against
appellant and instigated his close associate the respondent to file a suit with
concocted forgery document. On these pleadings, she sought for dismissal
of the suit.
4. The Trial Court on appreciation of oral and documentary evidences
available on record, came to the conclusion that execution of suit
promissory note was duly proved and consequently, granted a decree for
recovery of money as prayed for. Aggrieved by the same, the appellant
herein preferred an appeal in A.No.10 of 2015 on the file of the Principal
District Judge, Namakkal. The First Appellate Court affirmed the findings
of the Trial Court and dismissed the appeal. Aggrieved by the concurrent
findings, the appellant is before this Court.
5. The learned counsel appearing for the appellant submitted that the
Courts below erred in granting decree for recovery of money based on
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promissory note when the said original promissory note was misplaced from
the custody of the Court and the same was reconstructed with the xerox
copy of original promissory note. The learned counsel further submitted that
the order reconstructing the original promissory note was passed without
issuing any notice to the appellant herein. The learned counsel further
submitted that before filing of suit for recovery of money, no pre-suit notice
was issued by the respondent demanding payment of money and the same
creates suspicion with regard to the genuineness of the suit promissory note.
The learned counsel further submitted that pending first appeal, an
application was filed by appellant for sending the suit promissory note for
comparison of the signature of appellant found thereon with the admitted
signature of the appellant in the documents filed along with the application
and the said application has not been taken into consideration by the First
Appellate Court. The learned counsel further submitted that the difference
in the handwriting of scribe in the main body of the promissory note and the
handwriting found in bottom wherein the address of the scribe was written
do not match with each other and therefore, the genuineness of Ex.A1-
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Promissory Note is very much in doubt.
6. The suit filed by the respondent is based on promissory note. The
execution of the promissory note was totally denied by the
appellant/defendant. In such circumstances, it is for the respondent to prove
the due execution of promissory note to the satisfaction of the Court. In the
case on hand, in order to prove the due execution of suit promissory note,
the respondent herein examined himself as PW.1 and he deposed in favour
of plaint averments. The Attestor to the suit promissory note was examined
as PW.2. He clearly deposed about the execution of promissory note by the
appellant in his presence and payment of amount by respondent to the
appellant. The appellant not only signed in the suit promissory note, she
also affixed her left thumb impression in the right hand side top corner of
the suit promissory note. The same has been clearly spoken to by the
Attestor-PW.2. The appellant not succeeded in discrediting the said witness
PW.2 in cross examination. It also appears that PW.2 is one of the sharer of
the appellant. In such circumstances, there is nothing on record to disbelieve
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the version of PW.2. The scribe of the suit promissory note was examined as
PW.3. He also deposed about the execution of suit promissory note by
appellant and receipt of consideration. The appellant is not successful in
discrediting the said witness also in cross examination. The evidence of
PW.3 namely the scribe of Ex.A1-suit promissory note corroborates the
evidence of Attestor-PW.2.
7. It is pertinent to note that proof affidavit of PW.2 was filed on
22.07.2011 and he was cross examined extensively on 23.01.2012.
Likewise, proof affidavit of PW.3 was filed on 22.07.2011 and all these
things have taken place well prior to alleged misplacement of suit
promissory note. PW.2 identified the suit promissory note-Ex.A1 and
deposed about it's execution. Therefore, based on the evidence of PW.2 and
PW.3, the Courts below rightly came to the conclusion that the respondent
succeeded in proving the due execution of suit promissory note. Once the
execution of suit promissory note is held to be proved, the respondent is
entitled to presumption under Section 118 of the Negotiable Instruments
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Act, 1881 regarding passing of consideration. In fact PW.2 and PW.3 also
spoken about passing of consideration. In such circumstances, this Court
comes to a conclusion that execution of suit promissory note is duly proved
and the same is supported by consideration.
8. As far as the contention raised by the learned counsel for the
appellant that reconstruction of misplaced suit promissory note was ordered
by the Trial Court without issuing any notice to the appellant is concerned, a
perusal of the order passed by the Trial Court ordering reconstruction of
misplaced suit promissory note dated 28.01.2013 would suggest that the
Court exercised its inherent power under Section 151 of the Civil Procedure
Code suo motu ordered reconstruction of Ex.A1. In the very same order, the
Trial Court directed issue of court notice to both side counsel and directed
plaintiff to produce xerox copy of Ex.A1-promissory note for
reconstruction. Therefore, it is clear the reconstruction was intimated to
both the parties by express notice with direction to reconstruct Ex.A1 with
xerox copy. The appellant failed to raise any objection regarding
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reconstruction before the Trial Court. On the contrary, she proceeded with
the case and conducted trial by continuing the cross examination of
witnesses without any murmur. In these circumstances, the contention raised
by the learned counsel appearing for the appellant that reconstruction of suit
promissory note was ordered without notice to appellant cannot be accepted.
9. Further the Division Bench of this Court in Marakkarutti and
others vs. T.P.M. Veeran Kutty and others reported in
MANU/TN/0027/1923 = AIR 1923 Mad 647, held that the Court has got
inherent power to reconstruct the original documents misplaced from it's
custody. In this regard, the relevant observation of the Division Bench of
this Court reads as follows:-
“2. ... ... ... ... I think that one can safely start with the
proposition that there is inherent power in every Court to
reconstruct its own records, and I think it follows that there is
inherent power in the Appellate Court to reconstruct the
records of the Court from which an appeal lies to it. This
power has been recognised in England and in America, which
follows the English Common Law, and also in this Country.
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The English case that is quoted on the subject is Douglass v.
Yallop 97 E.R. 532. The matter was more fully discussed in an
American case, McLendon v. Jones 42 Am. Dec. 640, a
judgment of the Court of Alabama which quoted and followed
Douglass v. Yallop 97 E.R. 532 and a case which had been
decided by the Supreme Court of New York; and that case
points out, "Cases must frequently have occurred in which, by
accident, the records of Courts of Justice have been destroyed
or lost, and it would seem strange if the Common Law had
provided no adequate means by which the injuries growing out
of such accident could be averted or remedied, " and then goes
on to discuss the methods by which the remedy should be
provided. I call attention, to it because it states the matter more
fully than the other reported cases. In this country the matter
came before the Calcutta High Court in 1867 in Babu Guru
Dayal Singh v. Durbaree Lal Tewaree (1867) 7 W.R. 18, a
judgment of Sir Barnes Peacock, C.J. and Jackson, J. In that
case records had been lost in transit from the first Court to the
second; the second Court acted on some documents purporting
to be office copies which the High Court held were not
regularly proved or admitted. The Court held that there were
two alternative courses open, to direct the lower appellate
Court to receive such secondary evidence of the contents of
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original records as may be forthcoming, or to order an entirely
new trial. It decided against the second alternative for very
cogent reasons with which we agree. ... ... ... ...”
In the case on hand, the xerox copy of suit pronote was received and
reconstructed and both the parties proceeded with trial without any
objection. Even in the proof affidavit of DW.1, she referred about
misplacement of suit promissory note and it's reconstruction. The appellant
neither objected reconstruction nor filed any petition before Trial Court
seeking recall of order passed by Trial Court on the ground she was not
issued with any notice before reconstruction. She simply proceeded with
further cross examination of PW.2 and PW3. Therefore, I do not find any
infirmity in reconstruction of original promissory note misplaced from the
custody of the Court.
10. It is also submitted by the learned counsel appearing for the
appellant that respondent failed to issue any pre-suit notice demanding
payment of amount due under the promissory note and the same creates
doubt with regard to the genuineness of suit promissory note. When the
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respondent/plaintiff was examined as PW.1, he clearly deposed that since he
got information that appellant/defendant was attempting to alienate her
property, in order to obtain attachment of her property, the suit was filed
immediately without issuing any pre-suit notice. When the reason for filing
the suit without issuing pre-suit notice is very well explained by the
respondent as PW.1, the said contention of the learned counsel for the
appellant also rejected.
11. The appellant herein filed an application under Order 41 Rule 27
of Civil Procedure Code before First Appellate Court to mark certain
documents containing her admitted signature for comparing the same with
signature of the appellant found in suit promissory note. The said
application was filed on 14.07.2015. As submitted by the learned counsel
for the respondent the said application has not been numbered and in fact,
the appeal itself was taken up for final hearing on 14.07.2015 as seen from
the preamble portion of the judgement and decree and upon hearing the
arguments, the final judgement was passed on 29.07.2015. When appellant
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has not taken any steps to get the said application numbered, before appeal
is taken up for hearing, the appellant cannot complain that his application
filed under Order 41 Rule 27 was not considered by the First Appellate
Court. Further, when appellant had ample opportunity before the Trial Court
to file those documents and seek comparison of signature found in the
promissory note with the admitted signatures, she has not taken any steps to
do so before the Trial Court. Though the appeal was filed before the First
Appellate Court on 25.06.2014, the appellant has not taken any steps to file
a petition to raise additional evidence till 14.07.2015, when the appeal is
taken up for final disposal.
12. In such circumstances, the contention raised by the learned
counsel for the appellant as if, the petition filed by her for raising additional
evidence was not at all considered by the First Appellate Court is not
acceptable to this Court. The application was not numbered till the appeal is
taken up for hearing. The appellant also failed to raise any grounds in
memorandum of second appeal regarding the application filed by her for
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raising additional evidence before the First Appellate Court. In these
circumstances, the said contention raised by the learned counsel for the
appellant is also rejected.
13. In view of the discussion made earlier, I do not find any
substantial question of law arising for consideration in this second appeal to
enable this Court to interfere with the concurrent findings of the Courts
below. Accordingly, the Second Appeal is dismissed.
In Nutshell:-
(i) The Second Appeal is dismissed.
(ii) In the facts and circumstances of the case, there shall be no order
as to costs.
28.11.2023
Index : Yes
Speaking order : Yes
Neutral Citation : Yes
dm
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S.SOUNTHAR, J.
dm
To
1.The Principal District Judge,
Namakkal.
2.The Subordinate Judge,
Trichencode.
Pre-delivery judgement in
28.11.2023
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