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2003 DIGILAW 509 (MAD)

Vijayaraghavan v. Damodaran-died & Others

2003-03-25

N.V.BALASUBRAMANIAN, P.THANGAVEL

body2003
Judgment :- N.V.BALASUBRAMANIAN,J) This appeal is directed against the judgment and decree in O.S.NO.63 of 1986 on the file of the learned Subordinate Judge, Tindivanam. 2. The defendant in the suit is the appellant and the plaintiff is the respondent. The plaintiff instituted a suit for recovery of money of a sum of Rs.39,000/- along with interest and cost on the ground that the appellant/defendant had borrowed a sum of Rs.39,000/- during last week of September 1985, but the defendant/appellant failed to pay the amount borrowed. It is stated that the defendant/appellant has issued a letter dated 1.5.1986 and in the letter he has agreed that he received a sum of Rs.39,000/- from the plaintiff and also issued post dated cheque dated 2.7.1986 in the name of State Bank of India, Tindivanam for a sum of Rs.36,000/- and also agreed to pay balance amount of Rs.3000/-. The cheque was presented for payment but it was returned by the bank in view of insufficient funds. It is stated that the defendant/appellant was informed about the return of cheque by the bank, but the defendant/appellant refused to receive the notice. Hence, the plaintiff filed the suit for recovery of a sum of Rs.39,000/- along with interest and cost on the ground that the defendant/appellant had received said amount for the business purpose and hence, he is liable to pay the same along with interest at 12% per annum. 3. The case of the defendant in his written statement is that he completely denied the loan transaction of Rs.39,000/- and according to him, the defendant/appellant has not borrowed the sum of Rs.39,000/-. It is stated that the plaintiff/respondent and the defendant/appellant were partners of a firm carrying on business of paddy and rice and the defendant/appellant had denied that he issued letter dated 1.5.86. The defendant has also denied that he issued post dated cheque dated 2.7.86 and according to him, when the defendant has gone outside the shop for the business collection, the plaintiff took advantage of the blank cheque issued by the him in favour of the Tamilnadu Civil Supplies Corporation and the cheque was misused by the plaintiff by inserting his name and as such, this defendant is not liable to pay any amount. The appellant also referred to a panchayat that took place on 26.8.1986 as their business ended in loss and according to him in the panchayat the plaintiff admitted that the defendant has neither issued the cheque nor the letter dated 1.5.1986. The case of the defendant in the written statement is that he is not liable to pay the suit amount as claimed by the plaintiff. 4. The trial court, on the basis of the above pleadings, framed necessary issues and after considering the evidence let in by both the parties, did not accept the case of the defendant and decreed the suit as prayed for. It is against the judgment and decree, the present appeal has been preferred by the defendant. 5. The points that arise for consideration is whether the defendant/appellant is liable to pay the suit amount as claimed by the plaintiff? and whether the case set up by the defendant that he has not executed Exs.A.1 and A.2 is correct or not? 6. Heard Mr.A.K.Kumarasamy, the learned counsel for the appellant and Mr.D.Rajendran, learned counsel for the respondent. 7. The learned counsel for the appellant took us through the pleadings and various documents and his main contention is that there is no evidence at all in support of the case of the plaintiff that he lent a sum of Rs.39,000/- to the defendant/appellant. He also submitted that the defendant/appellant has denied the contents of the documents in Exs.A.1 and A.2, though he admitted the signature found in that exhibits as his own and it is for the plaintiff to prove that the defendant has executed Exs.A.1 and A.2. The next submission of the learned counsel for the appellant is that there was a panchayat in which the plaintiff has admitted that the defendant has issued the blank cheque and there was no other money transaction and hence, the trial court was not correct in disbelieving the independent evidence of D.Ws.2 and 3. The learned counsel for the appellant further submitted that the conclusion of the trial court is not sustainable on the facts and circumstances of the case and the judgment is liable to be set aside. 8. The learned counsel for the appellant further submitted that the conclusion of the trial court is not sustainable on the facts and circumstances of the case and the judgment is liable to be set aside. 8. The learned counsel for the respondent on the other hand submitted that the findings of the trial court are based on the evidence on record and no case has been made out to interfere with the judgment of the trial court. 9. The main contention of the appellant is that the plaintiff has not proved that he lent a sum of Rs.39,000/- to the defendant. We are unable to accept the submission of the learned counsel for the appellant for the simple reason that in the letter dated 1.5.1986 the defendant has categorically admitted that he has borrowed a sum of Rs.39,000/- from the plaintiff and he has also admitted that in discharge of the said loan, he has issued a cheque for a sum of Rs.36,000/-. In the letter, the defendant has not only admitted his liability, but also agreed to pay the balance amount of Rs.3000/- within a period of one month from the date of receipt of the letter. It is also significant to note that in the said letter the defendant/appellant has given the full particulars regarding the cheque, namely, cheque number, date and also bank in which the cheque was drawn. It is also relevant to note that the letter was written in the letter head of the defendant/appellant and in the letter head full particulars regarding his business particulars, namely, TNGST number and his phone numbers are furnished. 10. Eventhough the case of the defendant in the written statement is that he has not given the letter dated 1.5.1986 viz., Ex.A1, but, on the other hand, in his evidence, he has admitted his signatures found in Exs.A1 and A2 and denies only the contents of the letter. It is clear that the evidence is contrary to the pleadings. Further, there is absolutely no evidence to support the case of the defendant/appellant that the contents of the letter were written behind his back after he has handed over the blank paper with his signature and he was not aware of the contents of the letter. It is clear that the evidence is contrary to the pleadings. Further, there is absolutely no evidence to support the case of the defendant/appellant that the contents of the letter were written behind his back after he has handed over the blank paper with his signature and he was not aware of the contents of the letter. We are of the view that the case of the defendant that he has given the blank paper is liable to be rejected straight away as the defendant/appellant is a business man and he must be fully aware of the risk inherent by handing over a blank letter with his signature to a business associate. Moreover, a fair reading of the letter shows that the defendant has signed the letter after the letter was written and further it is well settled that it is impermissible to look into the oral evidence when the documentary evidence is available. We are not able to accept the submission made by the learned counsel for the appellant that the contents in Ex.A1 were written after he has given the blank paper with his signature. Further there is no evidence to support his case and he has not established that he has given the blank paper with his signatures. Once this Court upholds that Ex.A1 was written by the appellant, the necessary consequence that follows is that the defendant has admitted his liability for the borrowing of a sum of Rs.39,000/- and his liability to repay the same. Since the defendant/appellant has admitted his borrowing, it is unnecessary for the plaintiff to produce account books or any other evidence to show that he lent a sum of Rs.39,000/-. The submission of the learned counsel for the appellant in this regard is not sustainable on facts and hence it is rejected. 11. The next submission of the learned counsel for the appellant is that it is for the plaintiff to prove the contents of the documents in Exs.A1 and A2. We have gone through the evidence of D.W.1. As already observed by us, except the ipse dixit of the defendant, who has examined himself as D.W.1, there is no supporting evidence to corroborate his statement. Further in his own evidence, he has clearly stated that he used to give the cheques to third parties authorising them to fill up the cheques. As already observed by us, except the ipse dixit of the defendant, who has examined himself as D.W.1, there is no supporting evidence to corroborate his statement. Further in his own evidence, he has clearly stated that he used to give the cheques to third parties authorising them to fill up the cheques. The evidence of D.W.1 clearly shows that he was in the habit of issuing cheques authorising the parties to fill up the blanks in the cheques. Moreover, the defendant has not established his case as pleaded in the written statement. On the other hand, the evidence of plaintiff is cogent and convincing to show that the documents Exs.A1 and A2 were written by the defendant/appellant and there is nothing to discard the evidence of plaintiff who was examined as P.W.1. 12. The next submission of the learned counsel for the appellant is that there was a panchayat and in the panchayat the plaintiff has admitted that he has obtained blank cheques from the defendant and no money was due from the defendant to the plaintiff. In support of his plea of the panchayat, the defendant has examined D.W.2 and D.W.3. We have gone through the evidences of D.Ws.2 and 3. From the evidence adduced by D.W.2, it is clear that in the alleged panchayat, the cheque transaction was not one of the topic that was discussed in the panchayat. Further we find that not much weight can be given to the evidence of D.Ws.2 and 3 as they were not able to remember the months or even the year in which the panchayat took place. Further they have also not produced any written record to show that the panchayat took place and in the panchayat some decision was taken regarding the cheque transaction. Therefore, the trial court was correct in discarding the evidences of D.Ws.2 and 3. 13. The next submission of the learned counsel for the appellant is that the plaintiff and the defendant were partners of an unregistered partnership firm and due to the strained business relations between them, the plaintiff took advantage of the cheque book in his custody and he misused the cheques by writing his name. 13. The next submission of the learned counsel for the appellant is that the plaintiff and the defendant were partners of an unregistered partnership firm and due to the strained business relations between them, the plaintiff took advantage of the cheque book in his custody and he misused the cheques by writing his name. As far as this plea is concerned, we find that the defendant has not even proved the terms of the partnership as he was not able to state the capital contributed by the plaintiff or profit sharing ratio. Further the defendant has not produced any instrument or any account books in support of plea that there existed a partnership between the plaintiff and the defendant. 14. We therefore, hold that the submission made on behalf of the defendant/appellant do not merit acceptance and on the other hand, the plaintiff has proved his case that the defendant/appellant has borrowed a sum of Rs.39,000/- and in discharge of his liability, he has issued cheque for a sum of Rs.36,000/- which was also found to have been dishonoured and the appellant has also agreed to pay the balance amount of Rs.3000/-. Since the plaintiff has established his case, we hold that he is entitled to the decree and the trial court was right in granting the decree. The points raised for consideration are answered against the appellant. 15.Consequently, we do not find any merit in the appeal. In result, the appeal fails and the same is dismissed with cost.