Madras High Court
Y.Amaladass vs Y.Josephjesuraj on 31 January, 2025
Author: Krishnan Ramasamy
Bench: Krishnan Ramasamy
S.A.(MD)No.254 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 24.01.2025
PRONOUNCED ON : 31.01.2025
CORAM
THE HONOURABLE MR.JUSTICE KRISHNAN RAMASAMY
S.A.(MD)No.254 of 2022 &
C.M.P.(MD)No.3422 of 2022
1.Y.Amaladass
2.A.Nithya ...Appellants
vs.
1.Y.JosephJesuraj
2.J.Tamilselvi ...Respondents
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure praying to set aside the Judgement and Decree in A.S.No.47 of
2019 dated 21.10.2021 on the file of the I Additional District Judge,
Madurai confirming the Judgement and Decree in O.S.No.190 of 2012
dated 11.08.2018 on the file of the II Additional Subordinate Judge,
Madurai.
For Appellants : Mr.J.Barathan
for Mr.V.Muthu Kamatchi
Page 1 of 19
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S.A.(MD)No.254 of 2022
For Respondents : Mr.S.Meenatchi Sundaram
Senior Counsel
for Mr.K.Samidurai
JUDGEMENT
This Second Appeal was filed aggrieved over the Judgement and
Decree dated 21.10.2021 passed in A.S.No.47 of 2019 on the file of the
learned I Additional District Judge, Madurai.
2. For the purpose of easy reference, the appellants herein may be
referred hereinafter as the defendants and the respondents herein may be
referred hereinafter as the plaintiffs.
3. Initially, the plaintiffs filed a suit in O.S.No.190 of 2012 before
the II Additional Subordinate Judge, Madurai. The brief facts of the case
of the plaintiffs are as follows.
3.1. The plaintiffs are husband and wife. The 1st defendant is the
brother of the 1st plaintiff and the 2nd defendant is the wife of the 1st
defendant. On 02.08.2010, the defendants borrowed a sum of Rs.
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5,00,000/- from the plaintiffs as a loan for discharging previous debt,
development of their business and to meet urgent expenses. The
defendants agreed to repay the same with interest at the rate of 18% per
annum and they have also executed a demand promissory note on the
same date. The plaintiffs demanded the defendants to repay the loan
amount with interest. The defendants have not taken any sincere effort to
repay the same. Hence, the plaintiffs sent a lawyer notice to the
defendants on 15.06.2011 and 31.07.2011. The defendants sent their
reply notices to the plaintiffs on 27.06.2011 and 12.08.2011 respectively.
Since the defendants failed to repay the loan amount, the present suit.
4. The defendants filed their written statement before the Trial
Court and the brief averments in the written statement are as follows.
4.1. The relationship between the parties are admitted. The
defendants never borrowed the loan of Rs.5,00,000/- on 02.08.2010 from
the plaintiffs. On 30.04.2007, the 1st defendant obtained Rs.3,00,000/- as
mortgage loan from the 1st plaintiff and in this regard the 1st defendant
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executed a mortgage deed in respect of his property. With regard to the
same, the 1st plaintiff filed a suit in O.S.No.185 of 2012. The 1st
defendant had paid the interest for Rs.3,00,000/- and also repaid a sum of
Rs.1,50,000/- - in the principal amount. On 01.05.2011, the plaintiffs, the
mother of the 2nd plaintiff and two others, namely, Regina and Deisy
trespassed into the defendants’ house and assaulted them in filthy
language. The defendants have also lodged a criminal complaint in this
regard. Keeping the same in the mind, the plaintiffs forged the signatures
of the defendants in the suit promissory note and filed the suit. The suit is
barred by limitation.
5. The plaintiffs have also filed reply statement denying the fact
that the first plaintiff and his sister trespassed into the defendant’s house
and threatened the defendants.
6. Before the Trial Court, on behalf of the plaintiffs, PW1 to PW3
were examined and Exs.A1 to A6 were marked. However, on behalf of
the defendants, no one was examined and no documentary evidence was
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marked. Court Witness Ex.C1 was marked.
7. On completion of pleadings, the Trial Court framed the
following issues.
"(i) Whether the suit promissory note was bogusly created?
(ii) Whether the plaintiffs are entitled for the relief of recovery of suit money
from the defendants?
(iii) What are the other reliefs the plaintiffs are entitled to?"
8. After hearing both the parties, the Trial Court came to the
conclusion that the promissory note is not bogusly created and decreed
the suit as prayed for by the plaintiffs. Aggrieved over the said
Judgement and Decree, the defendants filed an appeal in A.S.No.47 of
2019 before the I Additional District Judge, Madurai, wherein, the
defendants have also filed an application in I.A.No.43 of 2021 seeking to
mark 12 documents as narrated therein. The first Appellate Court framed
the following issues for consideration.
1) Whether the decree and judgment dated 11.08.2018 in O.S.190/2012 on the
file of the II Additional Sub Court, Madurai are liable to be set aside?
2) Whether the trial court is right in accepting the contention of the plaintiffs
that the burden lies with the defendants?
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3) Whether the appeal has got to be allowed or not?
9. After hearing both sides, the Appellate Court decided all the
issues in favour of the plaintiffs and dismissed the appeal filed by the
defendants. Aggrieved over the same, the defendants are before this
Court by way of filing the present Second Appeal.
10. This court after hearing the parties, framed the following
substantial questions of law.
"(A) The First Appellate Court is not correct in decreeing the suit filed by the
plaintiffs for recovery of money on the basis of Ex. Al promissory note as time
barred one by holding the material alternation relating to the year of the
execution of the promissory note Ex.Al is amaterial alternation under Section
87 of the Negotiable Instrument Act and the same was void one?
(B) Whether both the Courts are correct in decreeing the suit filed by the
plaintiffs without proof of second plaintiff signature when the case of the
plaintiffs is joint execution of promissory note by both the plaintiffs, more
particularly the defendants denied the execution and signature by taking the
plea of the forgery under the circumstances of criminal case and other cases
pending between them on the constrained relationships?
(C) Whether the First appellate Court is correct in decreeing the suit on the
basis of the hand writing expert opinion without considering the principle that
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opinion report is not conclusive?
(D) Whether the First Appellate Court is correct in dismissing I.A.No.43 of
2021 filed under Order 41 Rule 27 of CPC without considering the documents
are material bearing in establishing the defendant case to the satisfaction of the
theory of preponderance of probabilities?
(E) Whether the First Appellate Court is correct in not holding that the
plaintiffs transaction is unaccounted and illegal transaction upon considering
the special circumstances that the second plaintiff was Teacher and there was a
detailed prohibition under the conduct code to advance the loan to any party by
properly applying the principal laid down by the Hon'ble Supreme Court in
2004(12) SCC 83?"
11. The learned counsel appearing for the appellants / defendants
would submit that, in the present case, the defendants have filed I.A.No.
43 of 2021, wherein they have pleaded before the Appellate Court to
mark 12 documents, which are all vital to establish their case and make a
claim on the basis of bogus promissory note. He would submit that the
averment in the promissory note is that the defendants have borrowed the
money for the purpose of personal expenses, settling the loan and
business expenses. As on the date of alleged borrowing, the first
defendant was admittedly liable to pay mortgage loan of Rs.3,00,000/- to
the first plaintiff. Thereafter, a suit was filed by the first plaintiff in the
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year 2012 and in the said suit, decree was obtained and ultimately
decreed amount has been paid by the first defendant. Promissory note is
dated 02.08.2010. According to the plaintiffs, the defendants have
borrowed a sum of Rs.5,00,000/- on 02.08.2010 for the purpose of family
expenses, to settle the loan and for business expenses, which means that
when the first defendant is liable to pay a sum of Rs.3,00,000/- to the
first plaintiff, in the event borrowing of Rs.5,00,000/- was made really as
alleged by the plaintiffs, out of the said borrowed amount, the existing
loan due of Rs.3,00,000/- ought to have been settled by the first
defendant. However, the same has not been settled because, the
promissory note was bogusly created and no such amount of Rs.
5,00,000/- was borrowed by the defendants. The learned counsel would
submit that since the defendants' lawyer has not properly conducted the
case before the Trial Court, the defendants were not able to adduce any
evidence, except filing of the written statement. In the written statement,
the defendants have categorically denied the execution of promissory
note. Even though the defendants have not examined anyone, it is the
duty of the plaintiffs to prove their case. Since the defendants raised
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dispute about the creation of Ex.A1 promissory note, the plaintiffs filed
an application for sending the promissory note for experts opinion.
While the promissory note was alleged to be created as early as on
02.08.2010, contemporary signature was not obtained during the relevant
period, but signature was obtained only in the year 2017, in the open
Court, by the learned Judge of the trial Court at the time of hearing.
Even then, only the signature of the first defendant was obtained and sent
for the experts opinion and the signature of the second defendant was not
at all obtained. Even though the above issues were raised before the first
Appellate Court, the first Appellate Court did not give any finding on
those issues. The first Appellate Court dismissed the application filed by
the defendants for marking 12 documents, without permitting the
defendants to file those documents and adduce evidence, which
ultimately proves that the defendants have not borrowed any money from
the plaintiffs. Before filing the suit, the plaintiff ought to have issued
demand notice to all the defendants. However, in the present case, notice
was received only by the first defendant (husband) and no notice was
received by the second defendant (wife). Notice to the second defendant
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was sent in the name of 'A.Vidhya'. In reply, the second defendant has
sent a letter, stating that no such person is available in the name of
A.Vidhya. However, no further steps were taken by the plaintiffs to issue
demand notice to the second defendant. The learned counsel insisted that
to file a case, proper demand should be made. But, without proper
demand, the present suit has been filed. Though this aspect was brought
to the knowledge of the first Appellate Court, no finding was rendered in
this regard. Therefore, the learned counsel requested that instead of
answering the substantial questions of law, this Court may be pleased to
remand the matter to the first Appellate Court, so that, the defendants
will have an opportunity to re-agitate all the above issues.
12. On the other hand, the learned senior counsel appearing for the
plaintiffs strongly opposed the contentions of the defendants. As far as
the demand notice is concerned, he would submit that the first defendant
has received the demand notice correctly. For the second defendant also
the notice was sent, however, her name was written in a different manner.
Two suits were simultaneously filed in the year 2012, one is mortgage
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suit and another is promissory note suit. As regards the marking of 12
documents before the first Appellate Court is concerned, those
documents are with regard to the criminal proceedings, which is no way
connected to the present case. Before the Trial Court, on behalf of the
defendants, no one was examined and no document was also marked. If
at all, evidence was available on the side of the defendants, they should
have adduced them before the Trial Court itself. The learned senior
counsel would fairly submit that though the defendants have not
examined anyone on their side, it is the bounded duty of the plaintiffs to
prove their case. The plaintiffs have also done so by examining PW1 to
PW3 on their side, who were also cross examined by the defendants. The
plaintiffs have also marked Exs.A1 to A6 on their side. The experts have
also sent opinion after comparing the signatures, which ultimately proves
that the signature in the promissory note and the contemporary signature
sent for expert's opinion are one and the same. Taking into consideration
all these aspects, both the Trial Court as well as the Appellate Court have
arrived at the conclusion in favour of the plaintiffs. Therefore, he would
submit that there is no need for remanding the matter to the first
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Appellate Court and the appeal is liable to be dismissed. In support of
his contentions, he referred to the Judgment of the Apex Court in the case
of Sirajudheen vs. Zeenath and others reported in 2023 (6) CTC 435.
13. I have given due consideration to the submissions made on
either sides and perused the materials available on record. Upon hearing
and perusal of the documents, it appears that the defendants have filed an
application before the first Appellate Court for marking 12 documents
and the same was dismissed without assigning any reason. According to
the defendants, these are all very vital documents to establish their case
with regard to the creation of the bogus promissory note.
14. A perusal of the promissory note shows that borrowing was
made by the defendants for the purpose of personal expenses, to settle the
loan and for business expenses, which means, the entire loan amount
would be within a sum of Rs.5,00,000/-. As on the date of alleged
borrowal, the first defendant is liable to pay a sum of Rs.3,00,000/-
towards mortgage loan to the first plaintiff. When the alleged amount of
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Rs.5,00,000/- was borrowed for personal expenses, to settle the loan and
for business expenses, definitely, the first defendant would have settled
the entire mortgage loan amount to the first plaintiff, if the defendants
really borrowed. However, there was no finding on this aspect either by
the Trial Court or by the Appellate Court. Finding on this aspect is
required when a stand was taken by the defendants that the promissory
note was bogusly created and no amount was borrowed. In the event, if
money was borrowed, the Court has to give finding on the aspect what
was the reason for not settling the loan out of the sum of Rs.5,00,000/-
borrowed by the defendants from the plaintiffs. Further, a question also
arises why the plaintiffs have not recovered the sum of Rs.3,00,000/- out
of Rs.5,00,000/- which the plaintiffs alleged to have lent to the
defendants.
15. A demand notice was issued by the plaintiffs to the first
defendant. However, no demand notice was issued to the second
defendant and the notice was issued in the name of Vidhya instead of
Nithya. The said notice would not be considered as proper notice and
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proper demand. No finding with regard to filing of suit against the
second defendant without any proper demand has been provided by both
the Trial Court as well as the Appellate Court.
16. The defendants took a plea denying their signatures in the
promissory note. Therefore, the plaintiffs have filed an application to
send the signatures for the opinion of the hand writing experts. The
signatures are pertaining to the year of 2010 and the Trial Court is
supposed to have collected the contemporary signatures, that is the
signatures in and around the year 2010. However, it appears, no attempt
was made by the Trial Court to get the contemporary signatures from
both the defendants. When the plea of the plaintiffs was accepted to send
the promissory note for the verification of the hand writing experts, then,
they should have obtained signatures from both the defendants. On the
other hand, it appears that the Trial Court directed the first defendant
alone to sign in the papers in the open Court during the year 2017, and
the same was sent for comparison to the hand writing experts. But, no
steps have been taken to get the signature of the second defendant to
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send the same for the hand writing experts opinion. No finding on this
aspect, as to what were the reason the signature of the second defendant
was not sent and also why the contemporary signature of the first
defendant had not been sent for hand writing experts opinion, is provided
by both the Trial Court as well as the first Appellate Court. When such
being the case, the reliability of the opinion of the hand writing experts is
doubtful. But, both the Courts have not dealt with the above aspect also.
17. In the above circumstances, this Court feels that the 12
documents filed before the Appellate Court for the purpose of marking
would be of relevance in the present case. However, without assigning
any reason, the first Appellate Court dismissed the said application. Due
to the above reason, this Court is not in a position to answer the
substantial questions of law as framed by this Court. Therefore, before
deciding the substantial questions of law, this Court feels that it would be
appropriate to set aside the finding and remand the matter for re-
consideration by the first Appellate Court. Accordingly, this Court is
inclined to set aside the Decree and Judgement dated 21.10.2021 passed
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by the I Additional District Judge, Madurai in A.S.No.47 of 2019 and
remand the same for reconsideration to consider the following issues.
(i) To verify and give finding on the aspect as to whether the
demand notice was issued to the second respondent and in the absence of
any demand notice to the second defendant, what will be the
consequence of filing the suit without any demand?
(ii) When the plaintiffs filed an application to send the promissory
note for the verification of the hand writing experts, whether the
signatures obtained by the Court in the open Court during the year 2017,
without collecting the contemporary signatures pertaining to the year of
2010 would be proper.
(iii) When the promissory note was signed by both the defendants,
whether sending the signature of the first defendant alone to the experts
opinion without sending the signature of the second defendant is
appropriate and based on the opinion, whether the Courts can come to
the conclusion in favour of the plaintiffs.
(iv) To give finding on the aspect, when the alleged loan was
borrowed for a sum of Rs.5,00,000/- from the plaintiffs by the
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defendants, the reason for not settling the existing loan amount of Rs.
3,00,000/- to the first plaintiff.
(v) To reconsider the application in I.A.No.43 of 2021 filed by the
defendants before the I Additional District Court, Madurai for the
purpose of marking 12 documents.
Unless and otherwise, decision is arrived on the above factual issues, this
Court is not in a position to answer the substantial questions of law
framed by this Court.
18. In view of the above, the Judgement and Decree dated
21.10.2021 in A.S.No.47 of 2019 and the order dated 21.10.2021 in
I.A.No.43 of 2021 passed by the learned I Additional District Judge,
Madurai are set aside. This matter is remanded to the file of the I
Additional District Court, Madurai to consider the above issues and
thereafter, pass Judgement and Decree afresh. As far as the substantial
questions of law are concerned, since the matter is remanded back, it is
left open to the parties to raise the same in appropriate time in future.
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19. Accordingly, the Second Appeal is disposed of. No costs.
Consequently, the connected Miscellaneous Petition is closed.
31.01.2025
NCC:Yes/No
Index:Yes/No
Speaking/Non-speaking order
mbi
To
1.The I Additional District Judge,
Madurai.
2.The II Additional Subordinate Judge,
Madurai.
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KRISHNAN RAMASAMY, J.
mbi
Pre-Deliver Judgement in
31.01.2025
https://www.mhc.tn.gov.in/judis
