Madras High Court
Usman vs Ashraf on 2 August, 2024
Author: C.V.Karthikeyan
Bench: C.V.Karthikeyan
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON 22.07.2024
PRONOUNCED ON 02.08.2024
CORAM :
THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN
C.S.No. 156 of 2018
Usman ... Plaintiff
Vs.
Ashraf ...Defendant
Prayer : Plaint filed under Order IV Rule 1 of OS Rules read with Order VII
Rule 1 CPC., to pass a Judgment and Decree to against the defendant:
a).To pay the plaintiff a sum of Rs.1,50,00,000/- along with interest at
24% per annum on the said amount of Rs.1,27,50,000/- from the date of filing
of the suit till the date of realization.
b).For costs of the suit;
For plaintiff : Mr. S.D.S.Philip
For defendant : Mr. R. Ganesh Kumar
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2
JUDGMENT
The Suit had been filed by the plaintiff, Usman S/o. Moideen Kutty,
Proprietor, M/s. Orion Constructions, seeking a judgment and decree against
the defendant, Ashraf S/o. T.A.Makkaru Kutty, for a sum of Rs.1,50,00,000/-
together with interest at 24% per annum on the sum of Rs.1,27,50,000/- from
the date of filing the suit till the date of realization and for costs of the suit.
2.The plaintiff is engaged in the business of promotion and construction
of commericial buildings in and around Chennai. He is also doing restaurant
and allied business in the name of Wholesome Foods and Real Value Foods.
He had been introduced with the defendant in the first week of September
2014 by the Khazi of Pulianthope Mosque. The defendant was doing business
in Metal Scrap and was having a yard at Thervazhi Village, Gumidipoondi.
3.The plaintiff stated that in September 2014, the defendant gave a
proposal stating that he was having a tender in his favour to lift 3000 Metric
Tons of Metal Scrap from M/s.Lanco Industries, Khalahasthi, Andhra Pradesh
and another tender in his favour to lift 5000 Metric Tons of Metal Scrap from
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M/s.JSW Bellary, Karnataka and that the total investment would be
Rs.1,27,50,000/- and requested the plaintiff to invest Rs.50,00,000/- and held
out that a profit of Rs.50,00,000/- could be made out from the said business
and the same could be shared between them equally. The plaintiff placed faith
and confidence on the defendant and paid cash of Rs.20,00,000/- and through
online transfer Rs.30,00,000/- totalling Rs.50,00,000/- and entered into a
Memorandum of Understanding at Chennai on 23.09.2014 in the presence of
two witnesses.
4.Thereafter, in the last week of September 2014, the defendant again
came to the office of the plaintiff and expressed inability to mobilise funds
even towards his share and requested the plaintiff to invest a further sum of
Rs.77,50,000/- and stated that otherwise the tender would go away from his
hands. Left with no alternate, the plaintiff claims that he invested the further
amount. He had paid Rs.5,00,000/- by cheque on 30.09.2014 and
Rs.9,00,000/- by cash on 31.09.2014. He had transferred Rs.8,00,000/-
through online transfer on 10.10.2014 and another sum of Rs.2,00,000/- again
through online transfer. He also paid Rs.15,00,000/- by cash on 12.10.2014
and Rs.11,00,000/- by cash on 15.10.2014. He transferred a sum of
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Rs.14,00,000/- through online transfer to the account of the defendant on
15.10.2014 and further sums of Rs.6,00,000/- and Rs.7,50,000/- were paid by
cash on 18.10.2014 and 23.10.2014 respectively.
5.The plaintiff stated that though the defendant had agreed to share the
profits, but had not given the same till January 2015. On 02.02.2015, the
defendant came to the office of the plaintiff with Khazi of Pulianthope Mosque
and gave a receipt in his own handwriting, acknowledging the debt as a
mututal understanding agreement in the presence of four witness. He agreed to
repay the total sum of Rs.1,27,50,000/- on or before 28.02.2015. The
defendant also gave eight cheques, drawn on Bank of India, Vedayapalem
Branch, Vedayapalem, Andhra Pradesh and one cheque drawn at Bank of
India, Chalakudy Branch. It is stated that the cheques were signed by the
defendant and the amounts were also filled by the defendant. The defendant
requested the plaintiff to deposit the cheques on receiving instructions on
28.02.2015. The plaintiff claimed that however, the defendant did not give any
instruction as assured by him. The defendant did not respond to the calls of
the plaintiff.
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6.The plaintiff stated that thereafter, the defendant filed O.S.No.61 of
2015 before the District Munsif Court, Ponneri, seeking permanent injunction
restraining the plaintiff from interfering with the defendant's peaceful
possession and enjoyment and carrying on business. The plaintiff did not
immediately present the cheques. The plaintiff further stated that in December
2017, the defendant sought a personal meeting with the plaintiff and the
defendant stated that nine cheques issued by him could be presented for
payment on 20.12.2017 for one cheque and on 01.01.2108 for the other eight
cheques. The plaintiff presented the nine cheques through his banker HDFC,
Anna Nagar Branch on 06.01.2018. All the nine cheques were dishonoured by
the banker of the defendant for the reason 'account closed' and 'account
blocked'. The plaintiff claimed that the defendant had deliberately induced him
to deposit the cheques. The plaintiff claims that placing trust on the defendant,
he had invested a sum of Rs.1,27,50,000/- and had lost the entire amount. It is
under those circumstances, that the suit had been filed seeking the relief as
stated.
7.The defendant filed a written statement, wherein he alleged that the
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plaintiff had attempted to play fraud on the Court by creating a forged
document of the defendant which is the subject matter of O.S.No.61 of 2015
on the file of the District Munsif Court, Ponneri. The defendant stated that he
was dealing with metal scrap and was awarded with a tender for lifting 3000
Metric Tons of metal scrap from M/s.Lanco Industries Ltd., Kalahasti, Andhra
Pradesh and another tender to lift about 5000 Metric Tons of metal scrap from
M/s.JSW Ltd., Bellary, Karnataka in the year 2014. The defendant stated that
the plaintiff being known to him had expressed willingness to invest in the
business. A document of mutual understanding was written down on
22.09.2014. The plaintiff invested a sum of Rs.50,00,000/-. He had paid
Rs.15,00,000/- on 23.09.2014 and another sum of Rs.15,00,000/- on
24.09.2024 and a sum of Rs.8,00,000/- on 10.10.2014 and another sum of
Rs.2,00,000/- on the same date through two separate transactions and another
sum of Rs.14,00,000/- on 15.10.2014. The plaintiff had thus actualy paid a
sum of Rs.54,00,000/-.
8.The defendant further stated that in the first week of December 2014,
the defendant had repaid a sum of Rs.12,50,000/- towards the profit and paid
a sum of Rs.4,00,000/- as repayment of the additional sum paid by the
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plaintiff. Thereafter, the prize of metal scrap had gone down and therefore,
the defendant requested the plaintiff to wait for some time for making profit in
the business. However, the plaintiff had insisted on repayment of the sum of
Rs.50,00,000/- invested by him. The defendant claimed that he had repaid a
sum of Rs.30,00,000/- in the middle of January 2015 and the balance sum of
Rs.20,00,000/- on 31.01.2015 in the presence of his office staff. He thus
claimed that the entire transactions came to be closed / settled.
9.The defendant stated that however, on 21.02.2015, the plaintiff came
with his henchmen to the business place of the defendant and demanded a
further sum of Rs.25,00,000/-. The defendant refused to concede to that
demand. The defendant stated that the plaintiff forced the defendant to put his
signature in undated bank cheques. One of the cheque was cheque No.000140
drawn on Bank of India, Chalakudy Branch, Kerala and the other cheques
were cheque Nos.000054 to 000061 drawn from Bank of India, Vedayapalem,
Nellore Branch, Andhra Pradesh. The defendant stated that the plaintiff also
took the signatures of the defendant in three blank Rs.100/- non-judicial stamp
papers, in three blank Rs.50/- non-judicial stamp papers and in three blank
green sheets. He stated that the plaintiff threatened that he would present the
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cheques for collection apart from using the blank non-judicial stamp papers.
The defendant immediately issued a letter to the banker to stop payment of the
cheques.
10.The defendant then filed O.S.No.61 of 2015 before the District
Munsif Court at Ponneri in March 2015 for a mandatory injunction directing
the plaintiff herein to return the nine cheques and other documents. The
defendant further stated that the plaintiff threatened his family members and
tried to take away the scrap material necessitating the defendant to address a
complaint to the police officials. The defendant stated that the plaintiff filed
his written statement in O.S.No.61 of 2015 and that the suit was still pending.
The plaintiff had stated that in his written statement, that he had paid a total
sum of Rs.1,61,50,000/- and had also issued a notice dated 18.01.2018. The
defendant had replied to the notice on 24.02.2018. The defendant stated that
the plaintiff had however instituted the present suit. The defendant denied that
the plaintiff had paid a sum of Rs.1,27,50,000/-. The defendant denied that the
plaintiff had paid a sum of Rs.30,00,000/- through transfer and another sum
of Rs.20,00,000/- by cash. The defendant stated that the document dated
02.02.2015 had been created by the plaintiff fradulently. He stated that this
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claim by the plaintiff is in contradiction with the claim made in the written
statement in O.S.No.61 of 2015, wherein, the plaintiff had mentioned a sum of
Rs.1,61,50,000/-. He stated that he never owed any money to the plaintiff. He
also claimed that the suit is barred by law of limitation since the transactions
was concluded on 31.01.2015. He therefore, claimed that the suit should be
dismissed.
11.On the basis of the above pleadings, the following issues were
framed on 07.06.2019 for consideration:
“i).Whether the defendant had executed the
acknowledgment of Debt dated 02.02.2015 in favour of the
plaintiff?
ii).Whether the cheques details which are set out in the
plaint were issued under circumstances as alleged by the
defendant?
iii).Whether the plaintiff is entitled to a decree as prayed
for?
iv).Whether the suit is barred by limitation?
v).To what relief parties are entitled?”
12.The plaintiff and the defendant were directed to tender evidence.
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Accordingly, the plaintiff examined himself as PW-1. He also examined
Muhammed Rayin Ali, whom he claimed was one of the witnesses to the
document dated 02.02.2015 as PW-2. On the side of the plaintiff Exs.P1 to
P12 were marked. Ex.P1 was the original Memorandum of Understanding
dated 23.09.2014. Ex.P5 was the original acknowledgment of debt dated
02.02.2015. The online print out of bank accounts were marked as Exs.P2 and
P4. The copy of the legal notice was marked as Ex.P6. The copy of the cheque
dated 30.09.2014 was marked as Ex.P3. The certified copy of the plaint in
O.S.No.61 of 2015 was marked as Ex.P8.
13.The defendant examined himself as DW-1 and marked two
documents. The certified copy of the written statement in O.S.No.61 of 2015
was marked as D1. The reply notice along with the postal acknowledgment
card was marked as Ex.D2.
14.Heard arguments advanced by Mr.S.D.S.Phillip, learned counsel for
the plaintiff and Mr.R.Ganesh Kumar, learned counsel for the defendant.
15.Mr.S.D.S.Philip, learned counsel for the plaintiff took the Court
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through plaint. He pointed out that the defendant was in requirement of
finance for the tender which he had taken to lift metal scraps at Andhra
Pradesh and Karnataka. Owing to the trust placed on the defendant, the
plaintiff had invested a sum of Rs.50,00,000/- and a Memorandum of
Understanding had been entered into between the parties on 23.09.2014. The
original document had been marked as Ex.P1. The learned counsel also placed
reliance on the statement of accounts, Ex.P2 under which the amounts were
transferred to the defendant through RTGS to a sum of Rs.15,00,000/- on
23.09.2014 and another sum of Rs.15,00,000/- on 24.09.2014, yet another
sum of Rs.8,00,000/- on 10.10.2014, and a further sum of Rs.14,00,000/- on
15.10.2014. The learned counsel also pointed out Ex.P3 which was a copy of
the cheque issued to the defendant for a sum of Rs.5,00,000/- on 30.09.2014.
The learned counsel also placed reliance on Ex.P4 a copy of the bank
statement which reflected transfer of Rs.2,00,000/- to the defendant on
10.10.2014. The learned counsel stated that the defendant was not able to
make effective progress in pursuance to the tenders and therefore requested a
further sum of Rs.77,50,000/- to be advanced by the plaintiff. Accordingly,
the plaintiff also paid that amount and in this regard, pointed out Ex.P5 a
Mutual Understanding Agreement which was written by the defendant in his
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own handwriting and also signed by him. The defendant had also handed over
nine separate cheques for a total sum of Rs.1,27,50,000/- and had also given
the details of the cheque numbers and the amounts in the said Mutual
Understanding Agreement. The learned counsel stated that the plaintiff had
thus paid to the defendant a total sum of Rs.1,27,50,000/- but the defendant
had not repaid the same. The defendant had however instituted O.S.No.61 of
2015 before the District Munsif Court at Ponneri.
16.The learned counsel pointed out the copy of the plaint in O.S.No.61
of 2015 which had been marked as Ex.P8 and stated that the defendant had
sought only permanent injunction restraining the plaintiff herein from
interfering with his peaceful possession of the business premises at Nos.23
and 24, Mallikai Apartments, Velammal Residency, Andarkuppam, Ponneri
Taluk, Tiruvellor District, except by due process of law. The defendant had
also sought for mandatory injunction seeking return of the bank cheques, but
for reasons best known had struck donw that particular relief from the plaint.
The learned counsel stated that after due contest the suit had been dismissed
by the District Munsif Ponneri and no appeal had been filed. The learned
counsel stated that the plaintiff had also issued a legal notice in this regard.
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Pointing out all these facts, the learned counsel insisted that the defendant is
due and liable to pay the amount as claimed in the plaint with costs.
17.With respect to the issue on limitation, the learned counsel stated
that the suit had been presented on 01.02.2018. The acknowledgment of debt
executed by the defendant was 02.02.2015 and therefore, the learned counsel
stated that the suit had been instituted within the period of limitation. The
learned counsel therefore insisted that the suit should be decreed as prayed for
with costs.
18.Mr.R.Ganesh Kumar, learned counsel for the defendant however,
disputed the contentions raised by the learned counsel for the plaintiff.
According to him, the plaintiff had paid a sum of Rs.50,00,000/- consequent
to which, a Memorandum of Understanding had been entered into on
23.09.2014 in Ex.P1. The learned counsel however denied the document relied
on by the plaintiff in Ex.P5 dated 02.02.2015. He asserted that the said
document had been created by the plaintiff and had not been proved in manner
known to law. He denied execution of the said document by the defendant.
Even otherwise, it was his contention that the plaintiff came along with his
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henchmen and had obtained signatures in blank stamp papers and had later
filled them up for his convenience. The learned counsel further stated that the
cheques which had been issued had been forcibly taken away from the
defendant and therefore the defendant had to issue stop payment notice to the
bankers.
19.The learned counsel pointed out Ex.D1, the certified copy of the
written statement in O.S.No.61 of 2015, wherein, the plaintiff had stated that
he had paid a sum of Rs.1,61,50,000/- on various dates and pointed out the
claim in the suit wherein, the plaintiff had claimed that he paid a sum of
Rs.1,27,50,000/- and stated that the plaintiff had contradicted himself in the
claims made. The learned counsel stated that since Ex.P5 is denied by the
defendant, the burden was on the plaintiff to prove execution of Ex.P5. He
stated that if Ex.P5 is removed from consideration, then the suit is barred by
law of limitation and naturally will have to be dismissed. The learned counsel
also pointed out the evidence of PW-2, Muhammed Rayin Ali, who claimed
that he was the signatory to Ex.P5 and thereafter, the learned counsel pointed
out Ex.P5 and stated that there was no witness by the name of Muhammed
Rayin Ali and therefore stated that the evidence of PW-2 would not advance
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the case of the plaintiff and will have to be rejected by this Court.
20.Mr.S.D.S.Philip, learned counsel, in his reply argument pointed out
that O.S.No.61of 2015 had actually been dismissed by the District Munsif
Ponneri and therefore, the defendant cannot place any reliance on the written
statement therein. The learned counsel also stated that the plaintiff had
examined PW-2 who is the witness of Ex.P5 and therefore, had proved the
said document. The learned counsel however, asserted that PW-2 was the
witness in Ex.P5 and he was the 4th witness and he had been called M.K.Ali.
21.Both the learned counsels invited the Court to compare the
signatures of M.K.Ali in Ex.P5 with the signature of PW-2 as found in
deposition.
Issues:
Issue Nos.1 and 2:
22.The plaintiff, Mr.Usman, had been peacefully carrying on business
in construction and promotion of commercial buildings and restaurant and
allied business in Chennai. He was then introduced to the defendant and his
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troubles began. The defendant was doing business in metal scrap. He informed
the plaintiff that he had two tenders to lift, 3000 Metric Tons of metal scrap
from M/s.Lanco Industries, Khalahasthi, Andhra Pradesh and another tender
to lift 5000 Metric Tons of metal scrap from M/s.J.S.W Bellary, Karnataka. He
stated that the total investment would be Rs.1,27,50,000/-. Had the defendant
just given that information and proceeded along with his own business, the
plaintiff would, as on date still be a peaceful person. However, the defendant
lured the plaintiff to participate in such tender by financing Rs.50,00,000/-
towards that amount of Rs.1,27,50,000/-. The plaintiff also invested the said
sum of Rs.50,00,000/-. He lost his peace. It was totally destroyed. The plaintiff
and the defendant entered into an agreement called Memorandum of
Understanding on 23.09.2014. The original was marked as Ex.P1. Though the
plaintiff claimed that he invested Rs.50,00,000/- the defendant went a step
further and stated that the plaintiff had actually invested Rs.54,00,000/-. That
statement did not reduce the troubles of the plaintiff. It probably only
increased them. The defendant was expected to invest the balance amount of
Rs.77,50,000/- but sensing that when a person has Rs.50,00,000/- to spare,
he could also spare a further sum of Rs.77,50,000/-, the defendant again
approached the plaintiff to invest that particular amount also. It is contended
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by the plaintiff that he did not actually invest the further sum of
Rs.77,50,000/- and as acknowledgment of the same, and also as
acknowledgment of the existing debt of Rs.50,00,000/-, the defendant had
executed what was called an acknowledgment of debt on 02.02.2015.
23.Issue No.1 surrounds whether this particular document had actually
been executed by the defendant and whether the Court can take judicial note
of the same and whether it is binding on the defendant. There are points to and
in favour of the genuinity of the validity of Ex.P5. It is the contention of the
defendant that the plaintiff and his henchmen came over to his office and
obtained signatures in three blank 100 rupees non-judicial stamp papers, in
three 50 rupees non-judicial stamp papers and in three green sheet papers and
also in nine cheques, out of which one was drawn on Bank of India,
Chalakudy Branch and the other eight cheques were drawn on Bank of India,
Vedayapalem Branch, Andhra Pradesh. It is alleged that the amounts were
also filled to bring them to a total sum of Rs.1,27,50,000/-.
24.The learned counsel for the defendant pointed out Ex.P5 and stated
that the first page was in a 100 rupees non-judicial stamp paper which had
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been purchased on 23.01.2015 at West Mogappair, Chennai and the second
page was in a 50 rupees non-judicial stamp paper purchased on 09.02.2014
from a different stamp vendor at Arumbakkam, Chennai. The learned counsel
pointed out that there were four witnesses to the said document and none of
the witnesses had been examined as a witness during the course of trial. The
learned counsel therefore stated that this document will have to be rejected by
the Court and stated that the signatures of the defendant had been obtained in
blank non-judicial stamp papers and later the writings had been filled up by
the plaintiff to his convenience.
25.The learned counsel for the plaintiff however stated that it is a fact
that the two stamp papers had been purchased from two separate stamp
vendors, but stated that the writings were in the own handwriting of the
defendant. The learned counsel also pointed out that the writings could not
have been subsequently written since the defendant had signed immediately
after the last line in the first page and again immediately after the first line in
the second stamp paper. If signatures had been obtained in blank papers and
later it had been filed up it could never have been visualized that in one paper
the signature should be obtained at the bottom and in the other paper, the
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signature should be obtained at the top leaving space for just only line to be
written. The learned counsel pointed out that in the reverse of the stamp paper
again the defendant had signed. Therefore, the learned counsel pointed out the
probability was more that the defendant had signed the stamp paper after it
had been written down and that it had been written down by the defendant in
his own hand writing.
26.With respect to the witness, the learned counsel stated that it is a fact
that the name of the 4th witness was given as M.K.Ali, but stated PW-2 is the
very same person though he had given his name as Muhammed Rayin Ali and
stated that it was a genuine mistake in Ex.P5 to have put the initials M.K
instead of M.R. The learned counsel pointed out that the first witness was
C.K.Khaise who was also a witness in Ex.P1, Memorandum of Understanding
dated 23.09.2014. As a matter of fact, in the pleadings, the plaintiff had stated
that it was Khaise Moulavi who is the Khazi in Pulianthope Mosque who had
introduced the defendant to the plaintiff. He therefore stated that the genuinity
of the document cannot and should not be impinged by this Court.
27.The entire issue surrounds on execution of Ex.P5. The case of the
plaintiff is that he had invested a sum of Rs.50,00,000/- as evidenced by
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Ex.P1, Memorandum of Understanding dated 23.09.2014. This amount had
not been paid entirely by cash. There are also bank transfers. It is evident from
Ex.P2, that there has been transfer of Rs.15,00,000/- on 23.09.2014 and
another Rs.15,00,000/- on 24.09.2014, Rs.8,00,000/- on 10.10.2014,
Rs.14,00,000/- on 15.10.2014 to the defendant from the account of the
plaintiff at HDFC bank, Anna Nagar Branch. Therefore, the case of the
plaintiff that he had actually invested amounts is true. He had transferred
from that very account a total sum of Rs.52,00,000/-. In the written statement,
the defendant had also acknowledged transfer of a sum of Rs.2,00,000/- from
yet another account which is actually reflected in Ex.P4, which is the extract of
the account of the plaintiff in Bank of India, Ambattur Branch. These
transactions reflect that there had been financial transactions between the
plaintiff and the defendant with the plaintiff forwarding amounts to the
defendant. The defendant had not produced one piece of evidence to show
discharge of at least this amount of Rs.54,00,000/-. The defendant had only
stated in his written statement about repayment, but had not proved such
repayment.
28.The plaintiff had also produced Ex.P3 which is the copy of a cheque
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in the name of the defendant for a sum of Rs.5,00,000/- and dated
30.09.2014. The plaintiff also stated that he had, quite apart from these bank
transfers, paid amounts in cash. I hold that the plaintiff had established
bonafide in transferring amounts to the defendant and there was no other
reason for the plaintiff to so transfer amounts to the defendant except to
further the business of the defendant who had obtained tenders to lift metal
scraps at Andhra Pradesh and Karnataka.
29.The very fact that the defendant had not repaid any amount would
show that even if the defendant had actually lifted metal scrap he had not
shared the profits with the plaintiff. The case of the plaintiff has a touch of
sincerity while the case of the defendant does not inspire confidence in the
Court.
30.With respect to Ex.P5, which is the core issue which will have to be
examined by the Court, the very statement of the defendant is that signatures
were obtained in blank stamp papers of Rs.100/- and Rs.50/-. Naturally, the
set of Rs.100/- stamp papers would be different from the set of Rs.50/- stamp
papers. What is presented in the Court as Ex.P5 also reflects the same fact.
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But more importantly, the signature of the defendant and also of the plaintiff
are found immediately after the last line in the first stamp paper and
immediately after the very first line in the second stamp paper. If anybody had
obtained signatures in blank papers, common knowledge would show that
signatures could never have been obtained by giving just one line in one of the
papers. There is provision for only one line in one of the stamp papers and
immediately, thereafter the two signatures in the second stamp paper, the
witnesses have also signed. Therefore, I reject the case of the defendant that he
had signed in blank unwritten stamp papers. He had actually affixed his
signatures along with the plaintiff in the stamp papers which had been written
down.
31.Very significantly, the defendant had taken a stand that his
signatures having been obtained in blank stamp papers only to avoid
admission that he had actually written down Ex.P5. There is no statement
made by him with respect to the writings in Ex.P5. On the other hand, there is
definite statement by the plaintiff, that the writings were in the own
handwriting of the defendant. That statement in the plaint had not been denied
by the defendant.
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32.Further, the defendant had filed O.S.No.61 of 2015 and the certified
copy of the plaint had been marked as Ex.P8. A perusal of the same shows
that the defendant had sought two separate reliefs. He had sought a mandatory
injunction against the plaintiff herein to return back the signed documents and
the cheques. The relief had been scored out. He had also scored out the
valuation portion of the suit for that particular relief. This would automatically
mean that he had admitted that he does not require the return of the blank
cheques and all other non-judicial stamp papers and therefore, also conversely
had admitted to the execution of the said documents and signing of the
cheques. The institution of the suit was primarily to protect himself from
misuse of, what he termed, signed blank stamp papers and signed blank
cheques. But he had voluntarily given up that relief in the suit.
33.This conduct of the defendant also proves that he had signed Ex.P5
only with the knowledge of what was written and he had such knowledge
because he had himself written down what was written and knew and
undertook and accepted that the plaintiff had totally invested not just
Rs.50,00,000/- or Rs.54,00,000/- but Rs.1,27,50,000/-.
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34.There is another one significant fact namely, the common witness to
both Exs.P1 and P5. In the plaint, it had been very specifically stated that the
Khasi of Pulianthope Mosque had introduced the defendant to the plaintiff and
therefore, on the belief "that the defendant is a Religious and God fearing
man", the plaintiff had entered into a business dealing with the defendant. This
trust was based on the reverence with which the Khazi was held by both the
plaintiff and the defendant. The defendant has also not denied this particular
statement in the plaint that he was introduced by the Khazi of Pulianthope
Mosque to the plaintiff and that it was only for that reason, the plaintiff had
entered into a business transactions with the defendant.
35.I hold that all these facts would show that irrespective of the fact
whether PW-2 is M.K.Ali or M.R.Ali or Muhammed Rayin Ali, the document
in Ex.P5 has been proved in manner known to law. It is a document relevant
to the facts of the case. It is a document admissible in evidence. It is a
document which is genuine and had been signed voluntarily by the defendant
who had also written down the writings in the document. The said document
is dated 02.02.2015. That is an acknowledgment of the debt. The plaintiff had
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three years to seek recovery of such debt. The plaintiff had presented the plaint
before the Assistant Registrar on 01.02.2018 within the period of three years.
36.In view of the above reasons, with respect to issue No.1, I hold that
the defendant had actually executed the acknowledgment of debt, Ex.P5, dated
02.02.2015 in favour of the plaintiff. I further hold that the cheque details had
been voluntarily given by the defendant in Ex.P5. In effect, I hold that Ex.P5 is
a document which could be relied on by the Court and is relied on by the
Court. Issue No.1 is answered in favour of the plaintiff. Issue No.2 is
answered that the cheque details had been given voluntarily by the defendant
and not under any coercion exercised by the plaintiff. It is also answered in
favour of the plaintiff.
Issue No.4:
37.This issue surrounds the fact whether the suit is barred by law of
limitation. While answering issue Nos.1 and 2, the Court had held that Ex.P5
is a document voluntarily executed by the defendant knowingly, and as an
acknowledgment of debt. This document is dated 02.02.2015. To enforce the
debt, the plaintiff had three years' time. He had presented the plaint on
https://www.mhc.tn.gov.in/judis
01.02.2018 within the period of three years. Therefore, the suit is not barred
by law of limitation. This issue is answered accordingly.
Issue No.3:
38.In view of the answer given to issue Nos.1, 2 and 4, I hold that the
plaintiff is entitled to a decree as prayed for. The plaintiff has proved Ex.P5 in
manner known to law. The denials by the defendant are rejected. Ex.P5 is
held to be a document of acknowledgment of debt. It is held that it had been
voluntarily executed by the defendant. Naturally, the plaintiff is entitled for the
decree as prayed for with costs.
Issue No.5:
39.In the result, the suit is decreed with costs as prayed for.
smv 02.08.2024
Internet:Yes/No
Neutral Citation:Yes/No
Speaking Order : Yes/No
Plaintiffs' side Witnesses:
P.W.1 – Mr.Usman
P.W.2 – Mr.Muhammed Rayin Ali
https://www.mhc.tn.gov.in/judis
Defendant's side Witnesses:
D.W.1-Mr.Ashraf
Plaintiffs' side Documents:
Ex.P.1 23.09.2014 Original Memorandum of Understanding
Ex.P.2 Online printout of bank account statement relating to
bank current A/c.No.12252320000125
Ex.P.3 30.09.2014 Photocopy of the Cheque No.549754
Ex.P.4 Online printout copy of bank account statement
relating to bank current A/c.No.822120100004915
Ex.P.5 02.02.2015 Original acknowledgment of debt executed by the
defendant in favour of the plaintiff.
Ex.P.6 18.01.2018 Office copy of the legal notice
Ex.P.7 Original acknowledgment card received from the
defendant
Ex.P.8 Certified copy of the plaint in O.S.No.61 of 2015 filed
by the defendant
Ex.P.9 04.03.2013 Notarized copy of the Partnership Agreement
“Wholesome Food”
Ex.P.10 15.07.2013 Attested photocopy of the Certificate of Registration
from Commericial Tax Department dated 15.07.2013
Ex.P.11 12.04.2013 Notarized copy of the Partnership Agreement “Value
Foods and Retail”
Ex.P.12 24.05.2013 Attested photocopy of the Certificate of Registration
from Commercial Tax Department
Ex.D.1 27.04.2016 Certified copy of the Written Statement filed in
O.S.No.61 of 2015 dated 27.04.2016
Ex.D.2 Reply notice along with postal acknowledgment card
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02.08.2024
C.V.KARTHIKEYAN, J.
smv
https://www.mhc.tn.gov.in/judis
Pre-Delivery Judgment made
in
02.08.2024
https://www.mhc.tn.gov.in/judis
