Madras High Court
A. Govindasamy S/O. Late Abbiah Naidu … vs Janaki W/O. Periyasamy on 26 November, 2025
S.A. No.248 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 26.11.2025
CORAM :
THE HONOURABLE MR.JUSTICE P.DHANABAL
S.A. No.248 of 2015
A. Govindasamy S/o. Late Abbiah Naidu … Appellant / Respondent /
Plaintiff.
vs.
Janaki W/o. Periyasamy ... Respondent / Appellant /
Defendant
PRAYER: : The Second Appeal has been filed praying to set aside the
judgment and decree dated 13.09.2012 on the file of the Principal District
Judge, Krishnagiri in A.S. No.45 of 2011 reversing the Judgment and Decree
dated 25.08.2011 on the file of the Additional Special Court, Krishnagiri in
O.S. No.132 of 2006.
Page No.1 of 18
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S.A. No.248 of 2015
For Appellant : Mr. B. Bharath Kumar
for M/s. V. Nicholas
For Respondents: Mr.. P. Mani
JUDGMENT
The Second Appeal has been preferred as against the decree and
judgment passed by the First Appellate Court in A.S.No. 45 of 2011 on the
file of the Principal District Judge, Krishnagiri dated 13.09.2012, wherein the
appellant herein, being the Plaintiff, has filed a Suit for the relief of recovery
of money based on the Promissory Note and the same was decreed on
25.08.2011 by the trial Court in O.S. No.132 of 2006. As against the said
decree and judgment, the defendant preferred an appeal in A.S. No.45 of 2011
and the same was allowed. Aggrieved by the said decree and judgment
passed by the First Appellate Court, the present Second Appeal has been
preferred by the appellant / Plaintiff.
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2. For the sake of convenience and brevity, the parties herein after will
be referred to as per their status / ranking in the Trial Court.
3. The case of the Plaintiff before the Trial Court is that the defendant
borrowed a sum of Rs.1 lakh from the Plaintiff on 05.12.2003 and he agreed
to repay the same with interest @ Rs.2/- per hundred per month and executed
a Promissory Note. Thereafter, the defendant has not repaid the money.
Therefore, the Plaintiff filed the said Suit for recovery of money to the tune of
Rs.1,26,650/- as against the defendant.
3. The case of the defendant before the Trial Court is that the
defendant never borrowed money from the Plaintiff on 05.12.2003 and never
executed any Promissory Note. Already there is a dispute between the
defendant and one Banda Munusamy Naidu in respect of the pathway and
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there was an enmity between the defendant and the said Banda Munusamy
Naidu and now the Banda Munusamy Naidu, by using the Plaintiff, filed the
Suit. The Plaintiff is none other than the in-law of the said Banda Munusamy
Naidu. Therefore, the Suit is liable to be dismissed.
4. Based on the above said pleadings and upon hearing both sides and
perusing the documents, the trial Court had framed the following issues:
(i) Whether the Suit Pronote is a forged one.
(ii) Whether there is no cause of action for the Suit.
(iii) Whether the defendant is entitled to compensation cost as prayed
for.
(iv) Whether the Plaintiff is entitled to Suit amount as prayed for.
(v) To what reliefs, the Plaintiff is entitled to.
5. In order to prove the case of the Plaintiff, before the trial Court, he
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examined PW1 to PW3 and marked Ex.A.1 and on the side of defendant,
DW1 was examined and Ex.B.1 to Ex.B.4 were marked. After analysing the
oral and documentary evidences adduced on either side, the trial Court
decreed the Suit. Aggrieved by the said decree and judgment passed by the
trial Court dated 25.08.2011, the defendant had preferred an appeal before the
First Appellate Court i.e., Principal District Court, Krishnagiri in A.S. No.45
of 2011.
6. The First Appellate Court after hearing both sides and perusing the
records, framed the following points for determination:
(i) Is is true that the defendant has not executed Promissory Note
dated 05.12.2003.
(ii) Whether the Plaintiff is entitled to recovery of money of
Rs.1,26,650/- from the defendant.
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(iii) Whether the appeal is to be allowed or not.
After analysing the evidences adduced on both sides and perused the
records including the judgment of the trial Court, the First Appellate Court
allowed the appeal and dismissed the Suit. Aggrieved by the said decree
and judgment, the present Second Appeal has been preferred by the
Plaintiff.
7. This Court, while admitting the second appeal, has framed the
following substantial questions of law:
When the Plaintiff has discharged his initial burden to prove the
execution of the Suit Promissory Note by examining the attestors, the
defendant failed to discharge the burden in this regard by letting rebuttal
evidence, Whether the Lower Appellate Court is correct in accepting the
defense of the defendant and dismissing the Suit filed by the Plaintiff.
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8. The learned counsel appearing for the appellant / Plaintiff would
submit that the Plaintiff filed the Suit for the relief of recovery of money
based on the Promissory Note and also examined attesting witnesses and
thereby, he discharged his initial burden and the defendant totally denied the
execution of Promissory Note and passing of consideration and she set up
plea that the Suit pronote is a forged one due to the enmity between the
Plaintiff's in-law and the defendant in respect of the Civil suit. Therefore, the
defendant has to prove the above said enmity.
9. The evidence of PW1 to PW3 are natural and cogent and they
proved the borrowal of money by the defendant and the passing of
consideration. Therefore, the trial Court has correctly appreciated the
evidences and decreed the Suit. However, the First Appellate Court, on
conjecture and surmises, allowed the appeal and dismissed the Suit by
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holding that there is a Civil Suit pending between the parties, while so, how
the amount could be paid by the Plaintiff. The Plaintiff discharged his initial
burden and the defendant failed to rebut the evidence adduced on the side of
Plaintiff by adducing contra evidence and therefore, the decree and judgment
passed by the First Appellate Court is liable to be set aside and the judgment
and decree passed by the trial Court is to be restored by allowing this second
appeal.
10. The learned counsel appearing for the respondent / defendant
would submit that the Plaintiff filed the Suit for recovery of money as against
the defendant. The Plaintiff has not even issued any demand notice prior to
the Suit. There was an enmity between the Plaintiff's in-law and the
defendant, even prior to the date of filing of the Suit in respect of the pathway
and now the Suit is filed at the instigation of the in-law of the Plaintiff by
creating a forged Promissory Note. The Plaintiff examined PW1 to PW3 and
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the evidences of PW1 to PW3 are contradict to each other and they are not
trustworthy. Per contra, the defendant side witness DW1 has categorically
deposed about the enmity between the parties and pending Suits and the
defendant had no necessity to borrow such huge amount from the Plaintiff and
she had sufficient funds in her joint account along with her son and therefore,
she discharged her burden and the Plaintiff failed to prove his case. Further,
the trial Court, without appreciating the evidence in a proper perspective
manner, has erroneously decreed the Suit. Therefore, the defendant preferred
an appeal and the First Appellate Court correctly applied the law, appreciated
the evidence, allowed the appeal and dismissed the Suit filed by the Plaintiff.
Particularly, the First Appellate Court has recorded that Ex.A.1, Promissory
Note, was created later and there are differences between the two signatures
found in the Ex.P.1, Promissory Note and the Plaintiff himself admitted the
dispute pending between the parties from the year 2005 and therefore,
correctly came to a conclusion and the Suit also filed at the fag end of
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limitation period. Therefore, the First Appellate Court correctly allowed the
appeal and dismissed the Suit and the second appeal is liable to be dismissed.
11. This Court heard both sides and perused the entire materials
available on record.
12. In this case, the Plaintiff filed the Suit as against the defendant,
based on a Promissory Note. According to the Plaintiff, the defendant
borrowed money on 05.12.2003 to the tune of Rs.1 lakh agreeing to repay the
same with interest at the rate of Rs.2/- per hundred per month and also
executed a Promissory Note and thereafter, she did not repay the amount.
Therefore, the Plaintiff filed the Suit. The defendant denied the execution of
the Promissory Note and passing of consideration and also the alleged
borrowal of money. Therefore, it is the duty of the Plaintiff to prove his case
by examining sufficient witnesses.
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13. In order to prove the case of the Plaintiff, he examined PW1 to PW3 and
marked Ex.A.1, Promissory Note. PW1 is the Plaintiff and PW2 and PW3 are
the attesting witnesses. The attesting witnesses have deposed before the trial
Court that they stood as sureties to the money borrowed by the defendant.
The trial Court decreed the Suit holding that merely the witnesses referred
that they stood as sureties, it cannot affect the case of the Plaintiff and the
Plaintiff proved the execution of Promissory Note. The defendant pleaded
about the enmity between the parties due to a Civil case, but the trial Court
failed to appreciate the evidence of the defendant and not even discussed
about the evidence adduced by the defendant. But the First Appellate Court
after seeing the Promissory Note, found that there are differences between the
two signatures found on the Stamp and under the Stamp and PW1 admitted
that there are criminal cases pending between the defendant and one
Dhanamma before the Judicial Magistrate Court, Krishnagiri from the year
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2005 and the said Dhanamma is a close relative of the Plaintiff and there is a
dispute between the in-law of the Plaintiff and the defendant from the year
2001 and the same was also admitted by PW1. While so, how the Plaintiff
paid money to the defendant has to be explained by the Plaintiff.
14. Further the Plaintiff stated that initially he had only Rs.70,000/-
and thereafter, he sold his sheep and through that amount, he paid loan to the
Plaintiff. But he was unable to say about the quantum of money through sale
of sheep. The Plaintiff failed to take steps for sending the Pronote for expert
opinion and both the witnesses stated that they signed as sureties. Once the
defendant denied the signatures found in the Pronote, it is for the Plaintiff to
prove the same. Though the Plaintiff examined witnesses, the evidences are
not cogent. PW2 in his cross examination stated that as requested by the
defendant, he signed as surety for the loan and PW3 also stated that he signed
as surety. Both the attesting witnesses have categorically stated that they
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signed as sureties for the loan. Were the PW2 and PW3 present during the
alleged money transactions, if so, they would have stated that they signed as
witnesses. Therefore, on a careful perusal of evidences of PW1 to PW3, and
the surrounding circumstances, it is clear that there is no chance to lend
money by the Plaintiff to the defendant. When the disputes are pending
between the parties from the year 2001, there is no chance to pay money by
the Plaintiff to the defendant. Further the Plaintiff has not even issued notice
to the defendant, prior to the Suit and no pleadings about any demand made
by the Plaintiff to repay the money. It is pertinent to note that the Suit was
filed at the fag end of the limitation period. Therefore, the above said conduct
of the Plaintiff would create doubt over the genuineness of the Plaintiff's
claim.
15. Normally, if any money transaction between the parties, they use to
demand the borrower to repay the money and they use to issue Pre-Suit
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notice, but in this case, no notice was issued and no evidence that the Plaintiff
demanded the defendant to repay the Suit money. It is true that Pre-Suit
notice is not mandatory, but where there is a usual practice to send notice,
deviating from the usual practice creates doubt over the genuineness of the
claim. Moreover, from the evidence of DW1 and Ex.B3, it is revealed that
the defendant had sufficient money in her joint account along with her son.
Therefore, the defendant has probabilized her case through sufficient
evidence, but the Plaintiff has failed to prove the alleged borrowal of money
and execution of Promissory Note by the defendant in accordance with law.
Therefore, the First Appellate Court has correctly allowed the appeal.
16. As far as the substantial question of law that When the Plaintiff
has discharged his initial burden to prove the execution of the Suit
Promissory Note by examining the attestors, the defendant failed to
discharge the burden in this regard by letting rebuttal evidence, Whether
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the Lower Appellate Court is correct in accepting the defense of the
defendant and dismissing the Suit filed by the Plaintiff is concerned, the
Plaintiff has examined the attesting witnesses as PW2 and PW3 and they have
deposed that they stood as sureties for the money borrowed by the defendant.
There is vast difference between 'sureties' and 'attesting witnesses'. When the
defendant categorically denied the examination of Promissory Note, it is the
duty of the Plaintiff to prove the execution of Promissory Note and passing of
consideration. The evidence of PW2 and PW3 are not cogent and not
sufficient to prove the alleged execution of the Promissory Note. While so, it
is the duty of the Plaintiff to take steps to prove the Promissory Note through
an expert by comparing the signatures. But no steps were taken by the
Plaintiff. Therefore, the First Appellate Court is right in holding that the
Plaintiff has not discharged his initial burden to prove the execution of the
Suit Promissory Note and mere examination of attestors, is not sufficient,
when their evidences are not cogent and creates doubt. Per contra, the
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defendant has discharged her burden by letting rebuttal evidence and the First
Appellate Court has correctly accepted the defendant's side evidences and
dismissed the Suit.
17. In view of the above discussions and answer to the Substantial
Question of law, this Court is of the opinion that the second appeal has no
merits and deserves to be dismissed.
18. Accordingly, the Second Appeal is dismissed. There shall be no
order as to costs.
26.11.2025
Index : Yes/No
Speaking Order : Yes/No
mjs
To
1. The Principal District Judge, Krishnagiri.
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2. The Additional Special Judge, Krishnagiri.
P.DHANABAL.,J
mjs
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26.11.2025
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