Madras High Court
Nagarajan vs Kavipriya on 26 September, 2023
A.S..No.479 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated :26.09.2023
CORAM:
THE HON'BLE MRS.JUSTICE T.V.THAMILSELVI
A.S.No.479 of 2022
and
C.M.P.No.17373 of 2022
Nagarajan .. Appellant / Defendan
Vs.
Kavipriya .. Respondent / Plaintiff
PRAYER : Appeal suit is filed under Section 96 read with Order XLI Rule 1
of the Code of Civil Procedure, prayed to set aside the Judgement and Decree
dated 12.08.2022 passed in O.S.No.16 of 2019 by the learned III Additional
District Judge, Pondicherry.
For Appellant : Mr.P.Suresh Babu
For Respondent : Mr.P.Senthil Kumar
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A.S..No.479 of 2022
JUDGMENT
The appellant has preferred this appeal suit against the
Judgment and Decree passed by the learned III Additional District Judge,
Pondicherry in O.S.No.16 of 2019, dated 12.08.2022.
2. The appellant herein is the defendant in O.S.No.16 of 2019 on
the file of III Additional District Judge, Pondicherry. The respondent herein /
plaintiff has filed the suit for recovery of money based on the promissory note.
The appellant herein / defendant contested the suit, stating that he has not
borrowed any loan from the plaintiff. On hearing both sides as well as
considering the evidence, the learned trial Judge finally held that the
defendant / appellant is liable to pay the suit claim, and accordingly, decreed
the suit. Aggrieved over the said Judgment and decree the appellant has
preferred this appeal.
3. The fact reveals that the defendant had approached the plaintiff
and her husband, as they known each other for a long time, and demanded a
sum of Rs.5,00,000/- as loan in order to meet out his family expenses.
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A.S..No.479 of 2022
Accordingly, the plaintiff's husband accepted such request, arranged the
money and gave the said amount to the defendant on 28.01.2016. On receipt
of the amount the defendant executed a promissory note with undertaking to
repay the same with 24 % interest per annum on demand. But as he was
irregular in payment of interest, he had paid only a sum of Rs.60,000/- as
interest. Thereafter, he has not inclined to pay neither principal nor interest.
But all of us sudden, the defendant issued notice on 13.12.2018 and made
false allegation against the husband of the plaintiff. On 02.01.2019, the
plaintiff gave a suitable reply to the plaintiff. On the same day, the plaintiff
demanded him to re-pay the loan amount with interest and as he failed, the
suit was filed.
4. As per the written statement, the defendant totally denied the
execution of promissory note in favour of the plaintiff. Further, the defendant
contended that he had no necessity for borrowing loan from the plaintiff or
from her husband. After filing of the suit, he had verified the suit promissory
note, found that his signature was forged and with a view to defraud and
cheat him untenable claim was made by filling the present suit, without any
legal basis. Further he also contended that the plaintiff's husband namely
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A.S..No.479 of 2022
Kannan was doing money lending business, and insisted the defendant to
borrow a loan as Thandal, for which he refused. He also insisted him to sign
on unwritten stamp papers. So the defendant was constrained to issue notice
to the husband of the plaintiff. Aggrieved by the same the present suit was
filed at the instigation of her husband.
5. Before the trial Court to prove their case, on the side of the
plaintiff P.W.1 and P.W.2 were examined and Ex.A1 to A7 documents were
marked. On the side of the defendant D.W.1 and D.W.2 were examined. On
hearing both sides, the learned III Additional District Judge, Puducherry,
decreed the suit in O.S.No.16 of 2019 with costs directing the defendant to
pay the plaintiff an amount of Rs.7,97,669/- with subsequent interest at 6%
p.a., of Rs.5,00,000/- from the date of plaint till the realization of the amount.
Aggrieved by the said Judgment, the defendant has preferred this first appeal.
6. The learned counsel for the appellant / defendant submitted that
when the defendant pleaded that the suit promissory note was fraudulently
created by the plaintiff, then the burden restored on the plaintiff to prove that
the promissory note was executed by the defendant, then only the plaintiff is
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A.S..No.479 of 2022
entitled to the benefit of presumption under Section 118 (A) of the Negotiable
Instrument Act. For that this purpose he relied the following judgment
reported in S.A.No.1800 of 1989, MANU/TN/0975/2002, K.Sethurathinam
Vs. Subramanian, wherein it was held as follows:
6. The presumptions under Section 118 of the Negotiable
Instruments Act would be binding rule of evidence in favour of
the respondent / defendant, only if the revision petitioner /
plaintiff proves the execution of the promissory note, as held
by the Apex Court in KUNDAN LAL V. CUSTODIAN,
EVACUEE PROPERTY reported in MANU/SC/0422/1961:AIR
1961 SC 1316 wherein, it is held as follows:
"5.This Section lays down a special rule of evidence
applicable to negotiable instruments. The presumption is one
of law and thereunder a Court shall presume, inter alia, that
the negotiable instrument or the endorsement was made or
endorsed for consideration. In effect it throws the burden of
proof of failure of consideration on the maker of the note or
the endorser, as the case may be. The question is, how the
burden can be discharged? The rules of evidence pertaining to
burden of proof are embodied in Chapter VII of the Evidence
Act. The phrase :burden of proof" has two meanings-- one the
burden of proof as a matter of law and pleading and the other
the burden of establishing a case; the former is fixed as a
question of law on the basis of the pleadings and is unchanged
during the entire trial, whereas the latter is not constant but
shifts as soon as a party adduces sufficient evidence to raise a
presumption in his favour. The evidence required to shift the
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A.S..No.479 of 2022
burden need not necessarily be direct evidence, i.e., oral or
documentary evidence or admissions made by opposite party;
it may comprise circumstantial evidence or presumption of law
or fact. To illustrate how this doctrine works in practice, we
may take a suit on a promissory note. under Section 101 of the
Evidence Act, "whoever desires any Court to give judgment as
to any legal right or liability dependent on the existence of
facts which he asserts, must prove that those facts exist".
Therefore, the burden initially rests on the plaintiff who has to
prove that the promissory note was executed by the defendant.
As soon as the execution of the promissory note is proved, the
rule of presumption laid down in Section 118 of the Negotiable
Instruments Act helps him to shift the burden to the other side.
The burden of proof as a question of law rests, therefore, on
the plaintiff; but as soon as the execution is proved, Section
118 of the Negotiable Instruments Act imposes a duty on the
Court to raise a presumption in his favour that the said
instrument was made for consideration. This presumption
shifts the burden of proof in the second sense, that is , the
burden of establishing a case shifts to the defendant. The
defendant may adduce direct evidence to prove that the
promissory note was not supported by considering, and, if he
adduced acceptable evidence, the burden again shifts to the
plaintiff, and so on. The defendant may also rely upon
circumstantial evidence and , if the circumstances so relied
upon are compelling, the burden may likewise shift again to
the plaintiff."
7. Per contra the learned counsel for the plaintiff submitted that she
proved the execution of promissory note, as well as the borrowal of loan and
the same was rightly appreciated by the learned trial Judge, which needs no
interference by this Court.
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A.S..No.479 of 2022
8. The learned counsel for the respondent / plaintiff also argues that
the plaintiff has proved the execution of the promissory note by examining
one of the witnesses as P.W.2. Once the initial burden is proved then the
burden shifts upon the defendant to prove that the promissory note was
created fraudulently by the plaintiff. The learned counsel relied on the
Judgment of this Court reported in S.A.154/2002 in Ramasamy
Vs.Chinnammal dated 12.11.2010, wherein it has been held as follows:
"Burden of proving that the promissory note was
executed by the defendant, initially lies on the plaintiff- As
soon as execution of promissory note is proved, it shifts to the
defendant - If the defendant adduces direct evidence to prove
that the promissory note was not supported by considering,
burden shifts back to the plaintiff. Trial Court has wrongly
thrown the burden of proof on the plaintiff, after the execution
was proved. Defendants have not adduced any evidence to
prove that the documents was not supported by any
consideration. Trial Court has wrongly dismissed the suit".
9. Considering both side submissions, it is settled proportion that
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A.S..No.479 of 2022
the initial burden is upon the plaintiff to prove the execution of promissory
note by the defendant. As per the evidence of P.W.1 her husband was known
to the defendant through one Anbazhagan and the defendant approached him
for borrowing money. She further deposed that her husband was not having
money at that time, but the plaintiff had the money with her so, at the request
of her husband she paid the loan amount to the defendant. As a security,
defendant executed the suit promissory note which was marked as Ex.A1 on
the side of the plaintiff. Admittedly, the husband of the plaintiff namely
Kannan stood as attester of the said document, and he was examined as
P.W.2. As per the evidence of the defendant he has not signed in Ex.A1
-promissory note and also totally denied the borrowal of the loan as claimed
by the plaintiff. Besides he also denied that the promissory note was
fraudulently created by fabricating his signature. Moreover in the written
statement a specific defence was raised by the defendant in Paragraph 9,
stating that after "filing of the suit, the defendant verified the alleged suit
promissory note and found that his signature was forged, as if he borrowed
money and executed the suit promissory note. Therefore, the specific
contention of the defendant is that his signature was forged by the plaintiff. In
such circumstances the law requires that the defendant ought to have taken
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A.S..No.479 of 2022
steps to prove that the signature was fabricated by the plaintiff for unlawfull
gain. In the written statement, the defendant also mentioned that he would
take steps to send the promissory note for forensic expert to get opinion about
the said forgery. But, before the trial Court, the defendant has not taken any
steps to send the promissory note to the forensic expert, inorder to get the
expert opinion about the said fabrication, which was rightly pointed out by the
plaintiff's counsels. In fact, the defendant is employed as a staff of PWD
department and was not an illiterate person. Therefore, if really the plaintiff
forged his signature he ought to have taken steps to prove the said forgery, but
he failed. The learned trial Judge rightly appreciated this aspect which needs
no interference by this Court.
10. Before filing the Suit, notice was issue by the plaintiff on
02.01.2019, prior to that, defendant has issued notice on 13.12.2018 to the
husband of the plaintiff stating that he had borrowed Rs.10,000/- from him as
Thandal and repaid the same within 100 days upon payment of Rs.100 per
day. Thereafter, her husband insisted him to borrow higher loan and also
forced him to sign in the unwritten stamp papers. If really any such instance
happened, the defendant ought to have given complaint to the police about the
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A.S..No.479 of 2022
alleged threat made by the plaintiff's husband, but he has not given any such
complaint, nor he convened any Panchayat and the same was admitted by him
during cross-examination. Therefore, the said allegation leveled by the
defendant against the husband of the plaintiff has not been established
through material evidence. It is also un-believable that he was insisted by the
plaintiff's husband to receive more loan as stated in the notice. When there is
no concrete evidence to support the defendant's claim the same is deemed to
be un-proved.
11. The evidence of P.W.1 and P.W.2 were strongly objected by the
defendants stating that with regard to the execution of promissory note there
was a contradictions. But on considering the entire evidence of D.W.1 and
D.W.2, it clearly reveals that the defendant borrowed a loan from the plaintiff
at the instance of her husband / P.W.2 and executed the suit promissory note.
One Anbazhagan was examined on the side of the defendant as D.W.2, stated
that, he knows both Kannan as well as the defendant, but he did not know
about the other loan transactions.
12. Furthermore, in reply notice issued by the defendant before filing
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A.S..No.479 of 2022
the suit, he reserved his right to verify the suit promissory note and its
genuinity, and to take necessary legal action against him. But after filing the
suit promissory note the defendant has not taken any legal action against the
plaintiff nor her husband. Therefore the defendant fails to establish that the
suit promissory note was fraudulently created by the plaintiff and her husband
and the evidence of the plaintiff established that the defendant borrowed a
loan from her and executed the suit promissory note thereby she discharged
her initial burden, but the defendant failed to establish that the signature
found in the suit promissory note is not of him. Therefore, the authority relied
by the plaintiff is support of her case but the authority relied by the defendant
is not supporting the case of his defence. However, both the authorities were
rightly appreciated by the learned trial Judge, which needs no interference by
this Court.
13. With regard to the payment of interest, the plaintiff was not
certain up to which date the defendant had paid the interest. Her contention is,
the defendant had paid a sum of Rs.60,000/- as interest before filing of the
suit but she failed to mention the specific date on which the said interest was
paid. When the plaintiff failed to explain the payment of interest from the date
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A.S..No.479 of 2022
onwards the interest was paid, this Court is unable to calculate the rate of
interest from the date of the suit. But the learned trial Judge has rightly
decreed the suit for a sum of Rs.5,00,000/- with interest at the rate of 6 %
from the date of the plaint, till the date of realization amount, which needs no
interference by this Court.
14. Accordingly, the Appeal Suit is dismissed as devoid of merits and
the Judgment and decree passed in O.S.No.16 of 2019 dated 12.08.2022 on
the file of the III Additional District Judge, Puducherry is confirmed.
Consequently, connected Miscellaneous Petition is closed. No costs.
26.09.2023
Index : Yes/No
Speaking Order: Yes/No
Neutral Citation: Yes/No
rri
To,
1. The III Additional District Judge, Pondicherry.
2. The Section Officer, VR-Section,
High Court of Madras, Chennai.
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A.S..No.479 of 2022
T.V.THAMILSELVI,J.
rri
A.S.No.479 of 2022
and
C.M.P.No.17373 of 2022
26.09.2023
https://www.mhc.tn.gov.in/judis
