Madras High Court
Mr.Suresh Bafna vs V.Mangayarkarasi Ammal (Died) on 3 November, 2025
2025:MHC:2508
A.S.NO.216 OF 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
JUDGMENT RESERVED ON : 31 / 07 / 2025
JUDGMENT PRONOUNCED ON : 03 / 11 / 2025
CORAM:
THE HONOURABLE MR. JUSTICE R.SAKTHIVEL
APPEAL SUIT NO.216 OF 2014
Mr.Suresh Bafna,
Proprietor,
M/s.Madras Mercantile Agency,
No.3, Strotten Muthiah Mudali Street,
Chennai – 600 079.
... Appellant / Plaintiff
Vs.
1.V.Mangayarkarasi Ammal (Died)
Note: First respondent passed away.
Memo dated July 28, 2022 was filed
stating that Respondent Nos.3 to 5 are
the legal representatives of deceased first
respondent. Vide Order of this Court
dated July 28, 2022 made in the Appeal
Suit, the aforesaid memo was recorded,
Respondent Nos.3 to 5 were recorded as
the legal representatives of the deceased
first respondent and Respondent No.5
was brought on record while Respondent
Nos.3 and 4 were already on record.
Page No.1 of 26
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2.M.Velayudham (Died)
Note: The Second respondent passed
away. Fifth respondent was brought on
record as legal representative of the
deceased second respondent vide Order
of this Court dated July 28, 2022 made in
C.M.P. Nos.10471 and 10473 of 2022 in
A.S. No.216 of 2014.
3.V.Mahendran
4.V.Elango ... Respondent Nos.1 to 4 /
Defendant Nos.1 to 4
5.A.Vasugi ...
Respondent No.5 /
Defendant No.5
PRAYER: First Appeal filed under Section 96 read with Order XLI Rule
1 of the Code of Civil Procedure, 1908 praying to set aside the Judgment
and Decree dated September 04, 2013 passed by the XVIII Additional City
Civil Judge at Chennai in O.S.No.5989 of 1997.
For Appellant : Ms.T.Jayalakshmi
for M/s.Paul and Paul
For Respondent-1 : Died – Steps taken
For Respondent-2 : Died – Steps taken
For Respondent-3: Mr.R.Chandrasudan
For Respondent-4: Mr.R.C.Manoharan
For Respondent-5: Served on August 30, 2023.
No appearance.
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JUDGMENT
Feeling aggrieved by the Judgment and Decree dated September 04,
2013 passed in O.S.No.5989 of 1997 by the 'XVIII Additional City Civil
Court at Chennai' ['Trial Court' for brevity], the plaintiff therein has filed
this Appeal Suit under Section 96 read with Order XLI Rule 1 of 'the Code
of Civil Procedure, 1908' ['CPC' for short].
2. For the sake of convenience, hereinafter, the parties will be
referred to as per their array in the Original Suit.
3. The plaint was originally presented before this Court (High
Court, Madras) on July 17, 1995. Later, in view of Act No.28/1995 and
G.O.(Ms) No.1742, Home (Court) Department, dated November 23, 1995,
the pecuniary jurisdiction of City Civil Court, Chennai has been enhanced
from Rupees One Lakh to Rupees Ten Lakhs. Hence, the plaint was
returned by this Court on December 12, 1995 for representation before the
City Civil Court, Chennai. Accordingly, the plaint was represented before
City Civil Court, Chennai and taken on file as Original Suit No.5989 of
1997.
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PLAINTIFF'S CASE
4. Case of the plaintiff is that he lent Rs.51,000/- under Suit
Promissory Note dated January 6, 1988 and Rs.1,53,000/- under the
remaining three Suit Promissory Notes dated June 22, 1988 (Rs.51,000/-
under each), total sum being Rs.2,04,000/-, to the defendants at their
request, repayable with 24% interest per annum. In respect of the same,
the defendants jointly executed the Suit Promissory Notes. On March 31,
1989, the defendants repaid Rs.39,329/-. Similarly, they repaid Rs.22,000/-
on March 31, 1990, Rs.56,000/- on March 31, 1991, Rs.41,600/- on March
31, 1992 and Rs.4,080/- on July 18, 1992. As on the date of plaint viz.,
July 15, 1995, Rs.5,69,700/- is due from the plaintiff. Repeated demands
of the plaintiff calling upon the defendants to repay the same did not yield
any result. Hence the Summary Suit under Order XXXVI Rule 1 of CPC
praying for recovery of money along with interest at the rate of 24% per
annum from the date of plaint till full payment.
DEFENDANTS' CASE
5. The defendants filed an Interlocutory Application under Order 37
Rule 3(5) of the Code of Civil Procedure, 1908, in I.A.No.15374 of 1998
in O.S.No.5989 of 1997 seeking leave to defend the Suit unconditionally
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and the same was allowed by the Trial Court vide Order dated June 24,
2002. The defendants are family members; the first defendant is the
mother, second defendant is the father, third and fourth defendants are the
sons.
5.1. The fourth defendant, being the power holder of the defendants
1 to 3, filed written statement for himself and on behalf of the other
defendants. In the written statement, the defendants averred that one of the
alleged Suit Promissory Note viz., the one dated January 6, 1988, though
the names of all the defendants are written on it, has only the first
defendant's signature. Hence, it is an incomplete and in-valid document
suffering from material alteration. Further, one Suit Promissory Note,
dated June 22, 1988, bears 30% interest on it is in-valid in view of not
mentioning the name of the promisors.
5.2. Further averred that the claim of the plaintiff to the aggregate
sum of Rs.5,69,700/- without Suit Promissory Note wise split up and
bifurcation of principal and interest is abuse of process of Court and on
that ground, the plaint is liable to be rejected.
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5.3. Further averred that, the statement of accounts and particulars of
payment of interest stated in the plaint, more particularly the payment of
Rs.4,080/- on July 18, 1992, are self-serving, false and not related to the
Suit.
5.4. Further the first defendant borrowed some amounts from the
plaintiff in the year 1986 and have deposited some Title Deeds to the
plaintiff. Later, the plaintiff proposed to purchase the properties covered
thereunder, but the first defendant was not willing to do so. Aggrieved by
the said act, the plaintiff along with his close associate namely Mr.Ashok
Sharma forcibly obtained the signatures of the first and second defendants
in stamp papers, using which he forged a power of attorney in favour of
his close associate as if it was executed by the first and second defendants
and conveyed the said property in his favour on July 15, 1992. The
plaintiff further threatened and initiated false complaints for non-bailable
offences, for which, the defendants have moved for an anticipatory bail
before the concerned Court. In turn, the first defendant has filed criminal
complaint in Crime No.1808/1992 on August 18, 1992, taken on file as
C.C.No.8321 of 1995 against the plaintiff for fabricating the aforesaid
power of attorney. In these circumstances, the alleged last interest payment
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of Rs.4,080/- on July 18, 1992, is not believable. Hence, the amount of last
interest payment is false, only pleaded with a view to bypass the limitation
aspects. The Suit is barred by limitation as the Suit has been filed on July
17, 1995, more than three years after the alleged payment made by the
defendants on March 31, 1991.
5.5. Further averred that the plaintiff attempted to obtain a Decree in
his favour in this Suit by preventing service of summons on the defendants
by providing a false address. Only from a publication in 'Malai Murasu'
Newspaper dated August 27, 1998, the defendants learnt about the Suit
and entered appearance.
5.6. Further averred that the plaintiff is bound to produce the
Promissory Notes mentioned in the plaint cause of action in Paragraph
No.7. Stating so, the defendants prayed to dismiss the Suit.
TRIAL COURT
6. Originally the Suit was originally filed before the Court of
Additional District and Sessions Judge, Fast Track Court No.VI, Chennai.
6.1. Based on the above pleadings, the said Court framed the
following issues:
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'1. Whether the suit promissory notes are true and valid?
2. Whether the defendants have paid amounts as stated by the
plaintiff?
3. Whether the suit is barred by limitation?
4. Whether the plaintiff is entitled to the relief as prayed for ?
5. To what relief the plaintiff is entitled?'
6.2. Then the parties went to trial before the said Court. On the side of
the plaintiff, one G.Narasimmalu was examined as P.W.1, and Ex-A.1 to
Ex-A.6 were marked. On the side of the defendants, the fourth defendant
was examined as D.W.1 and Ex-B.1 and Ex-B.7 were marked.
6.3. The said Court decreed the Suit vide its Judgment and Decree
dated September 21, 2004. The aggrieved defendant came to this Court
vide A.S.No.276 of 2005 and in the Appeal Suit, the plaintiff filed a
petition under Order XLI Rule 27 of CPC. This Court vide Judgment dated
June 7, 2010, set aside the Judgment and Decree challenged before it and
remanded the matter granting liberty to both sides to file additional
pleadings and adduce additional evidence.
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6.4. Pursuantly, the Original Suit was restored on its original number
and the matter came before the Trial Court i.e., XVIII Additional City
Civil Court at Chennai.
6.5. After remand, on the side of the plaintiff, the plaintiff examined
himself as P.W.2 and Ex-A.7 to Ex-A.11 and Ex-A.13 to Ex-A.15 were
marked. One Ms.N.Shanthi, Inspector attached to Income Tax Department,
Chennai was examined as P.W.3 and Ex-A.12 was marked. The
defendants' side did not examine any additional witness but marked Ex-
B.8 to Ex-.10 in cross examination of P.W.1.
6.6. After full-fledged trial, the Trial Court held that the Suit
Promissory Notes are defective and incomplete. The plaintiff failed to
prove that the defendants paid interest for the loan amount lastly on July
18, 1992 as alleged, and hence, the Suit filed by the plaintiff on July 17,
1995 is barred by limitation. The plaintiff is not entitled to the relief
sought for. Accordingly, the Trial Court dismissed the Suit.
7. Feeling aggrieved, the plaintiff has preferred this First Appeal
under Section 96 read with Order XL Rule 1 of the CPC.
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ARGUMENTS:
8. Ms.T.Jayalakshmi for M/s.Paul and Paul, learned Counsel for the
appellant / plaintiff would argue that the defendants in Ex-A.9 - Notice
clearly admitted the execution of Ex-A.2 to Ex-A.5 - Suit Promissory
Notes in favour of the plaintiff. Hence, the Suit Promissory Note attract
the presumption under Section 118 of the Negotiable Instruments Act,
1881. It is true that in Ex-A.2 - Suit Promissory Note, the first defendant
alone signed though the names of all the defendants were found as
executors. Since the Defendant Nos.1 to 4 admitted the execution of Suit
Promissory Notes, non-signing of Defendant Nos.2 to 4 in Ex-A.2 loses its
significance. Moreover the first defendant stayed away from the witness
box for reasons best known to her. As far as Ex-A.5 - Suit Promissory
Note is concerned, the Defendant Nos.1 to 4 signed in it and the same is
duly stamped. The name of the executant, date, principal amount, interest,
etc. are all duly filled, except for the fact that the promisee column is left
blank. But the consideration under Ex-A.5 has been passed under
plaintiff's Cheque No.43854 drawn on Tamil Nadu Mercantile Bank,
which shows that the promisee is the plaintiff. Ex-A.6 and Ex-A.11 are the
statement of accounts maintained by the plaintiff. The income tax
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authorities conducted raid in plaintiff's firm and some other firms, and
sealed the bureau containing Ex-A.7 to Ex-A.11, Ex-A.14 and Ex-A.15
which are the records for cheques (Ex-A.7 and Ex-A.8) issued in favour of
plaintiff, legal notice from defendant (Ex-A.9), receipt for payment of
Rs.4,080/- (Ex-A.10) by defendants to plaintiff on June 18, 1992, etc. That
is the reason why the plaintiff could not produce the original documents at
the time of trial. In Ex-A.10, the fourth defendant paid a sum of Rs.4,080/-
towards the interest and acknowledged the debt. Though the defendants
deny the signature found in Ex-A.10, they did not take steps to send it for
expert opinion. Thus, the Suit is filed well within three years from the date
of last acknowledgment of loan vide Ex-A.10. The Trial Court failed to
consider Exs-A.7 and A.8 - Cheques dated June 3, 1992 and June 18, 1992
respectively. The Trial Court failed to properly appreciate the evidence
available on record and erred in dismissing the Suit. The Judgment and
Decree of the Trial Court deserves to be interfered with. Accordingly, she
would pray to allow the Appeal Suit and set aside the Judgment and
Decree of the Trial Court.
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8.1. In support of her contentions, she would rely on the Judgment of
Hon'ble Supreme Court in Uday Shankar Triyar -vs- Ram Kalewar
Prasad Singh, reported in (2006) 1 SCC 75].
9. Per contra, Mr.R.C.Manoharan, learned Counsel for the fourth
respondent / fourth defendant would make the following submissions:
(i) The plaintiff did not submit the daybook and ledger pertaining to
Ex-A.6 - statement of accounts. The defendants have not
acknowledged Ex-A.6; their signatures are not found in it.
(ii) Ex-A.11- statement of accounts contains only up to January 18,
1992 and the daybook and ledger corresponding to Ex-A.11 have
not been produced.
(iii) Ex-A.7 and Ex-A.8 - Cheques were not issued by the defendants
towards interest. The defendants were conducting a business in the
name of Mahindra & Bros. In the course of business, Ex-A.7 and
Ex-A.8 were obtained as signed blank cheques by one Ashok
Sharma in a business transaction who in turn colluded with the
plaintiff and fabricated as if they were issued by the defendants to
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the plaintiff. Even otherwise, Ex-A.7 and Ex-A.8 cannot be said to
be acknowledgement of any debt, as they were returned for
insufficient funds.
(iv) Ex-A.10 document was falsely created as an afterthought only for
the purpose of this case. A bare perusal of Ex-A.10 would show that
it is fabricated one. Hence Ex-A.10 cannot be considered as an
acknowledgement of debt. If really it is an acknowledgement, the
plaintiff ought to have filed Ex-A.10 along with the plaint. Further,
there is proof to show that Ex-A10 and other documents were seized
by the income tax authorities. Further, the plaintiff did not produce
the corresponding daybook, ledger book and statement of accounts
for Ex-A.10. Hence, the relief sought for by the plaintiff is clearly
barred by limitation.
(v) Ex-A.5 - Suit Promissory Note is an incomplete document and no
Decree can be granted on the basis of an incomplete document.
(vi) The plaintiff did not approach the Court with clean hands. The
plaint was not properly verified. In the plaintiff, it is stated that the
plaintiff is the proprietor of Madras Mercantile Agency. But the
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plaint has been verified by the plaintiff as Partner / Manager of
Madras Mercantile Agency. On this ground also, the Suit is liable to
be dismissed.
(vii) The Trial Court after considering the evidence available on record
in the proper perspective, rightly dismissed the Suit and there is no
warrant to interfere with it.
9.1. He would rely on the following decisions in support of his
contentions:
(i) Judgment of this Court in K.V.Krishnan -vs- B.A.Damodaran,
reported in (2006) 4 MLJ 1734;
(ii) Judgment of this Court in Thangarasu -vs- Arumugam, reported in
2012 SCC OnLine Mad 818 : (2012) 3 Mad LJ 658 ;
(iii) Judgment of this Court in Rangaswami Reddi -vs- K.Doraiswami
Reddi, reported in (1957) 2 MLJ 196;
(iv) Judgment of this Court in Verco Private Limited -vs- Newandram
Naraindas, reported in (1973) 86 LW 435 : (1973) 2 MLJ 92 ;
(v) Judgment of this Court in Ayyakkanu Gounder -vs- Virudhambal
Ammal reported in (2005) 1 MLJ 14 ;
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(vi) Judgment of this Court in S.Ramasamy Gurukal -vs-
K.C.Mahalinga Gurukal reported in (2003) 1 MLJ 281 ;
(vii) Judgment of this Court in M.Shanmugham -vs- S.Rangasamy
Gounder reported in (2001) 2 MLJ 753;
(viii)Judgment of this Court in Sree Rengaraaj Steel and Alloys Limited
-vs- MSTC Limited reported in AIR 2023 Mad 278 ;
(ix) Judgment of the Hon'ble Supreme Court in M/s.Airen and
Associates -vs- M/s.Sanmar Engineering Services Limited,
reported in 2025 SCC OnLine SC 1562.
10. Mr.R.Chandrasudan, learned Counsel for third respondent / third
defendant would adopt the submissions of Mr.R.C.Manoharan, learned
Counsel for the fourth respondent / fourth defendant.
DISCUSSION:
11. Heard on either side. Perused the evidence available on record.
The following points arise for consideration in this Appeal Suit:
(i) Whether the defendants borrowed a sum of Rs.2,04,000/- and
executed Ex-A.2 to Ex-A.5 - Suit Promissory Notes in favour of the
plaintiff ?
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(ii) Whether Ex-A.5 - Suit Promissory Note is a complete and valid
document ?
(iii) Whether Ex-A.7 and Ex-A.8 - Cheques were issued towards the
debt under Ex-A.2 to Ex-A.5 - Suit Promissory Notes ?
(iv) Whether the relief sought for by the plaintiff is barred by
limitation ?
Point No.(i)
12. The plaintiff is a money lender who is also involved in some
Dal business. The defendants were also engaged in the same business. It is
an admitted fact that the plaintiff and the defendants had some commercial
transactions before the Suit transactions.
13. According to the plaintiff, the defendants borrowed a total sum
of Rs.2,04,000/-; Rs.51,000/- on January 6, 1988 and Rs.1,53,000/- on
June 22, 1988. The defendants in their written statement denied the said
borrowal contending that the Suit Promissory Notes are not supported by
considerations. The defendants' case is that in 1986, the defendants
borrowed money from the plaintiff and deposited the Title Deed relating to
the property in Door No.12, Perumal Kovil Garden, Chennai which was
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absolutely owned by first defendant. Since the first defendant was not
willing to sell the property to the plaintiff in adjustment of the balance
amount due to him, the plaintiff forcibly obtained signatures from
Defendant Nos.1 and 2 with the help of his close associate - Ashok
Sharma, in non-judicial blank papers and some other papers. Later, the
plaintiff filled it as a Power of Attorney and alienated the said property in
his favour with the aid of said Ashok Sharma on July 15, 1992.
14. The defendants have filed a criminal complaint on August 18,
1992 against the plaintiff and Ashok Sharma in Crime No.1808 of 1992.
Thus, there was some strong previous enmity between the plaintiff and the
defendants from June 1992. While so, it is unbelievable that on July 18,
1992, the defendants paid a sum of Rs.4,080/- to the plaintiff and
acknowledged the debt. Hence, Ex-A.10 is clearly a fabricated document.
The Suit claim is barred by limitation. Above is the case of the defendants.
15. Ex-A.9 is the reply notice dated August 10, 1992 issued by
Defendant Nos.1 and 3 to the plaintiff, his Counsel and Ashok Sharma, in
reply to the notice dated July 28, 1992 issued by M/s.Meenakshi
Enterprises. The said notice dated July 28, 1992 has not been filed. In Ex-
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A.9 - Reply Notice, the defendants admitted that they borrowed a sum of
Rs.2,04,000/- from the plaintiff by way of four cheques each for
Rs.51,000/-.
16. According to the defendants, M/s.Meenakshi Enterprises owned
by Ashok Sharma was a commission agent under the plaintiff. The
defendants owed money to Ashok Sharma in the course of business. Hence
the plaintiff paid the aforesaid amount to the defendants who in turn paid
the same to M/s.Meenakshi Enterprises. Thus, the Suit Promissory Notes
were obtained by Ashok Sharma in favour of M/s.Meenakshi Enterprises
and not the plaintiff.
17. While that is the case of the defendants, there is no acceptable
evidence available on record to show that the Suit Promissory Notes were
executed by the defendants in favour of Ashok Sharma. They (except Ex-
A.5 -Suit Promissory Note) stand in the name of the plaintiff from whom
the defendants admittedly borrowed Rs.2,04,000/-. Ex-A.2 to Ex-A.5 are
duly stamped and they attract the presumption under Section 118 of the
Negotiable Instruments Act, 1881. The defendants have failed to rebut the
presumption. Hence, this Court is of the view that the defendants received
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a sum of Rs.2,04,000/- and executed the Suit Promissory Notes in favour
of the plaintiff. Point No.(i) is answered accordingly.
Point No.(ii)
18. It is true that in Ex-A.5, there is the promisee's name is not
mentioned. As stated supra, Ex-A.5 is duly stamped. A scanned
reproduction of Ex-A.5 is as follows:
18.1. At this point, reference must be made to Section 20 of the
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Negotiable Instruments Act, 1881. For the sake of convenience, Section 20
is extracted hereunder:
"20. Inchoate stamped instruments.—Where one person signs
and delivers to another a paper stamped in accordance with the
law relating to negotiable instruments then in force in India,
and either wholly blank or having written thereon an
incomplete negotiable instrument, he thereby gives prima facie
authority to the holder thereof to make or complete, as the case
may be, upon it a negotiable instrument, for any amount
specified therein and not exceeding the amount covered by the
stamp. The person so signing shall be liable upon such
instrument, in the capacity in which he signed the same, to any
holder in due course for such amount: provided that no person
other than a holder in due course shall recover from the person
delivering the instrument anything in excess of the amount
intended by him to be paid thereunder."
19. Bare reading of Section 20 would show that the plaintiff is
statutorily authorised thereunder to make or complete a duly stamped
instrument and negotiate the same or file the Suit based on the instrument.
However, in this case, though the plaintiff is entitled to fill the particulars
as per Section 20 of the Negotiable Instruments Act, 1881, he failed to fill
the promisee's name in Ex-A.5. Hence, it is not a complete document.
Plaintiff ought to have filled the promisee's name before filing Suit.
Therefore, it is an in-complete document on the basis of which the plaintiff
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is not in not entitled to Decree. Point No.(ii) is answered accordingly.
Point No.(iii)
20. According to the plaintiff, Ex-A.7 and Ex-A.8 - Cheques dated
June 3, 1992 and June 18, 1992 respectively were issued in favour of
plaintiff by defendants and they were dishonoured. Admittedly, the
plaintiff and the defendants had some business transaction. In these
circumstances, it is the duty of the plaintiff to show that the Cheques were
in respect of interest under the Suit Promissory Notes. Moreover, the said
Cheques were not realised; the amount was not deducted. Hence they
cannot be considered as an acknowledgment of debt. Even while assuming
that Ex-A.7 and Ex-A.8 are acknowledgments of debt, the Suit has not
been filed within three years therefrom. Point No.(iii) is answered
accordingly.
Point No.(iv)
21. From the evidence available on record, it could be discerned that
the plaintiff and the defendants are having a strained relationship since
June 1992. While so it is not believable that the defendant paid Rs.4,080/-
as interest on July 18, 1992. Further acknowledgment as per Section 18 of
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the Limitation Act, 1963, has to be clear, unambiguous and signed by
relevant parties. But here there is no clear evidence to show that the
payment of Rs.4,080/- on July 18, 1992 was in acknowledgment of Suit
debt. There is nothing to connect it with the Suit debt.
22. Further, the plaintiff ought to have filed Statement of Accounts,
day book and ledger relating to Ex-A.10. at the time of filing the Suit. The
plaintiff failed to do so. The plaintiff claims that Ex-A.10 and some more
documents were seized by the income tax officials. From the evidence
available on record, it could be seen that Income Tax Authority passed
prohibition order in 2003. It could be seen that raid was conducted and
some bureaus were sealed. But all these were in 2003 while the Suit was
filed in 1995. Hence, the reason assigned by the plaintiff is not believable.
Even after remand by this Court with the liberty to parties to adduce
additional evidence, the plaintiff who marked some documents, failed to
file ledger and others corresponding documents to Ex-A.10.
23. Moreover, Ex-A.10 has been signed by only the fourth
defendant qua partner of 'Malini & Co'. When Ex-A.10 has been signed by
only one defendant, that too in his capacity as a Partner of Malini & Co.
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But in Ex-A.14, it has been stated that Malini & Co., is a Proprietorship
Firm. There is no clear evidence to show that whether M/s.Malini & Co.,
is a Proprietorship Firm or Partnership Firm. Hence, there are suspicious
circumstances surrounding Ex-A.10. Hence, it cannot be termed as an
acknowledgement of the Suit debt. As already stated, as per Section 18 of
the Limitation Act, 1963, 'acknowledgment' should be clear and
unambiguous. Further, acknowledgment should be made before the
expiration of the prescribed period for a Suit i.e., within three years from
the execution of Promissory Notes or within three yearas from the last
acknowledgment of debt. The burden of proof lies upon the person who
pleads 'acknowledgment'. As already stated supra, in this case, the plaintiff
miserably failed to prove Ex-A.6, Ex-A.7 and Ex-A.10 and they were
made within the period of limitation. There is no evidence to relate it to
the Suit. Hence, Ex-A.10 goes and relief under Ex-A.2 to Ex-A.5 are
automatically barred under under Article 35 of the Limiation Act, 1963.
24. Further, if really there was any money due to the plaintiff by the
defendants, the plaintiff would have adjusted the same upon obtaining
Sale Deed on June 15, 1992. Furthermore, when the Suit is based on four
Promissory Notes, the plaintiff must show acknowledgements of each debt
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A.S.NO.216 OF 2014
distinctvely.
25. It is to be noted that the Suit is not filed based on original cause
of action, but based on Suit Promissory Notes. As discussed above, the
plaintiff failed to prove that the defendants acknowledged the debt vide
the documents under Ex-A.6 to Ex-A.8, Ex-A.10 and Ex-A.11. Hence, the
reliefs sought for by the plaintiff is clearly barred by Article 35 of the
Limitation Act, 1963. Point No.(iv) is answered accordingly.
26. In the plaint short cause title, it has been stated that the plaintiff
Mr.Suresh Bafna, as 'Proprietor, M/s.Madras Mercantile Agency'. But, in
the long cause title, it he has been described as 'Mr.Suresh Bafna,
Proprietor as well as Partner of M/s.Madras Mercantile Agency'.
Mr.Suresh Bafna has verified the plaint as its Partner / Manager. Hence,
there is a cloud whether M/s.Madras Mercantile Agency is a
'Proprietorship Firm' or 'Partnership Firm'. It is the duty of the plaintiff to
clear the cloud. But, the plaintiff did not remove the cloud surrounding in
it. In the Memorandum of Appeal Suit filed before this Court also, the
plaintiff / Mr.Suresh Bafna, has been described as 'Proprietor as well as
Partner of M/s.Madras Mercantile Agency'. Hence, the plaint is not duly
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A.S.NO.216 OF 2014
verified as per the Code of Civil Procedure, 1908. The Trial Court after
considering the evidence available on record, rightly dismissed the Suit.
No dispute with the case laws relied on either side. This Court finds no
reason to interfere with the findings of the Trial Court. Hence, the Appeal
Suit must fail.
CONCLUSION:
27. Resultantly, the Appeal Suit stands dismissed. The Judgment
and Decree of the Trial Court is confirmed. It is learnt that the defendants
as per the Order of this Court passed in Civil Miscellaneous Petition No.
4237 of 2005 in A.S.No.276 of 2005, deposited a sum of Rs.5,89,135/-
before the Trial Court. The defendants are entitled to get back the amount
along with accrued interest if any thereon, if not already withdrawn.
Keeping in mind the facts and circumstances of the case, there shall be no
order as to costs.
03 / 11 / 2025
Index : Yes
Speaking Order : Yes
Neutral Citation : Yes
PAM/TK
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A.S.NO.216 OF 2014
R. SAKTHIVEL, J.
PAM/TK
To
The XVIII Additional City Civil Judge
Chennai.
PRE-DELIVERY JUDGMENT MADE IN
APPEAL SUIT NO.216 OF 2014
03 / 11 / 2025
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