Research › Search › Judgment

Madras High Court · body

2007 DIGILAW 3793 (MAD)

P. Sivasubramanian & Another v. N. Kumar

2007-11-23

S.TAMILVANAN

body2007
Judgment :- This appeal has been preferred against the judgment and decree dated 13.03.1995 made in O.S. No. 219 of 1994 on the file of the Principal Subordinate Judge, Erode. 2. The appellants herein were the defendants before the trial Court. As per the case of the respondent/plaintiff on 15.05.1986, the first appellant herein as proprietor of the 2nd appellant had borrowed a sum of Rs.1,00,000/- from the respondent and executed the suit promissory note, Ex.A1, promising him to re-pay the same with interest at the rate of 7 paise for Rs.100/-per day and that interest was paid by him upto 31.03.1989 and from 01.04.1989 onwards he was paying the interest at the rate of 6%. On 27.03.1989, the first appellant paid a sum of Rs.6,300/- and made an endorsement on the back side of the promissory note Ex.A1. Subsequently, as the appellants did not pay any amount towards the principal or interest, the respondent issued a legal notice for which there was no reply from the appellant. Hence, the suit was filed by the respondent. 3. It is not in dispute that the first appellant is the proprietor of the second appellant and as such both were arrayed as defendants before the trial court. The defence raised by the appellants/defendants is that the first appellant had neither borrowed the alleged loan amount of rupees one lakh from the respondent, nor executed any promissory note, as stated by the respondent. According to him, on 15.05.1996 the appellant/defendant had received a sum of RS.2,50,000/- as loan from one Ramasamy, brother of the respondent, and the said Ramasamy had obtained signatures in three blank promissory note formats and further, the signature of the first defendant was also obtained at the back of the blank promissory notes. Though he had paid interest upto 31.03.1999, he could not pay the interest from 01.04.1989 to 31.03.1999 at the rate of 6 paise for Rs.100/-per day as agreed subsequently. According to him, the said Ramasamy brother of the respondent could have created the suit promissory note in favour of his brother, the respondent herein. In respect of the plaintiff’s case the respondent/plaintiff himself has adduced evidence as P.W.1, apart from examining P.W.2. According to P.W.2, the details of Exs.A2, A6 to A28 were written by him. .4. According to him, the said Ramasamy brother of the respondent could have created the suit promissory note in favour of his brother, the respondent herein. In respect of the plaintiff’s case the respondent/plaintiff himself has adduced evidence as P.W.1, apart from examining P.W.2. According to P.W.2, the details of Exs.A2, A6 to A28 were written by him. .4. According to the appellants the first appellant had obtained RS.2,50,000/- as loan on 15.05.1996 from Ramasamy, elder brother of the respondent, for which he had signed three unfilled blank promotes and handed over to him. P.W.1, the respondent herein has deposed that the first appellant had received a sum of rupees one lakh only from him and executed the suit promissory note by affixing the seal of his proprietary concern, the second respondent herein. It is clear that as per the Negotiable Instrument Act, if any person admits his signature on a promissory note, the legal presumption is that he has authorised the holder in due course, to fill up the instrument for the value not exceeding the amount covered by the stamps affixed there in until the contrary is proved. 5. Here in the instant case, the defence raised by the appellants/defendants is that the first appellant had never received any amount from the respondent. However, he has not disputed his signature and the seal of his proprietary concern, affixed on the revenue stamp of the suit promissory note, Ex.A1. It is, as per law, sufficient for the execution of the suit promissory note for the value mentioned therein not exceeding the amount covered by the stamps affixed therein. As contended by Mr.R.Gandhi, learned senior counsel appearing for the respondent that as per Section 20 of the Negotiable Instrument Act, it is not open to the appellant after having signed the Negotiable Instrument and received the consideration, to take a stand that the amount was obtained only from the elder brother of the respondent and handed over only three signed blank pronotes. It is not in dispute that the first appellant has been the proprietor of his sole trading concern and the second appellant is also an Income tax Assessee and therefore there could be no possibility for him in signing in three blank promissory notes without knowing the consequence and handing over three signed blank promissory note to the brother of the respondent, as there is every possibility of the person who gets the same, for filling up any amount and claim the same from the appellants. Being a businessman the first appellant could not have handed over the signed promissory notes in blank and that too, after affixing the seal of his sole trading concern. .6. As contended by the learned counsel for the appellant, the presumption under Section 20 of the Negotiable Instrument Act is only a rebutable presumption. The first appellant, though an Income Tax Payee has not produced his books of accounts to establish his defence, by way of rebutable presumption. Mr. S. Kothandaraman learned counsel for the appellants raised a defence on behalf of the appellants that the accounts produced by the respondent contained certain figures written in pencil and also not having the seal or endorsement, for having been produced before the Income Tax authorities. In the grounds of appeal, the first appellant has raised the defence that Exs.A1 and A2 are not genuine documents and also that the suit was barred by limitation. As per the evidence available on record as held by the Court below, the suit is not barred by limitation. Similarly as discussed earlier in the judgment, Exs.A1 & A2 cannot be construed as fabricated documents. 7. It is not in dispute that the suit has been filed, based on the Pronote, Ex.A1 and the endorsement, Ex.A2 made on the back of the promissory note to save the limitation. The appellants/defendants had admitted the signatures and also the seal of the second appellant proprietary concern, hence the first appellant without entering into the witnesses box and producing his account books and other connected registers maintained by him, cannot establish his defence on the ground of rebutable presumption. The non- availability of endorsement by Income Tax Authorities, in the account books produced by the respondent and marked as Exs.A6 to A12, A15, A21 and A22 do not create any circumstance to disprove the case of the respondent/plaintiff. 8. The non- availability of endorsement by Income Tax Authorities, in the account books produced by the respondent and marked as Exs.A6 to A12, A15, A21 and A22 do not create any circumstance to disprove the case of the respondent/plaintiff. 8. Considering the evidence both oral and documentary, this Court is of the view that the respondent has proved his case and that there is no legally sustainable defence made out in favour of the appellants to allow the appeal and further, the rate of interest claimed by the respondent/plaintiff is also legally sustainable. Therefore, I find no error or infirmity in the impugned judgment so as to warrant any interference of this Court in this appeal. 9. In the result, the appeal fails and accordingly, the same is dismissed by confirming the judgment and decree passed by the trial court. However, there is no order as to costs in the appeal.