Research › Search › Judgment

Madras High Court · body

2012 DIGILAW 340 (MAD)

K. K. Annamalai v. Rakkiannan

2012-01-24

M.VENUGOPAL

body2012
Judgment :- 1. The Appellant/Defendant has filed the present Second Appeal as against the Judgment and Decree dated 16.09.1998 in A.S.No.19 of 1998 passed by the Learned Sub Judge, Gobichettipalayam in confirming the Judgement and Decree dated 24.12.1997 in O.S.No.29 of 1997 passed by the Learned District Munsif Court, Gobichettipalayam. 2. The First Appellate Court, the Learned Sub Judge, Gobichettipalayam, while delivering the Judgment in A.S.No.19 of 1998, on 16.09.1998, has among other things observed that "though there are wide contradictions in regard to the evidence of P.Ws.1 and 2, it cannot be construed as they change the character of the suit" and also opined that Ex.A1-Pronote dated 09.02.1994 has been proved based on the oral and documentary evidence and accordingly dismissed the appeal with costs. Earlier in the main suit, the trial Court has framed one to three issues for determination. On behalf of the Respondent/Plaintiff, witnesses P.Ws.1 and 2 have been examined and Exs.A1 and A2 have been marked. On the side of the Appellant/Defendant, D.W.1 has been examined and Exs.B1 and B2 have been marked. 3. The trial Court, after scrutinising the oral and documentary evidence available on record has come to a consequent conclusion that though it is true that in the evidence of P.W.1, there is a contradiction, yet there is truth in the evidence of P.W.1 and therefore, importance need not be given to the contradiction and resultantly held that Ex.A1-Pronote dated 09.02.1994 is true and has not been a created one and decreed the suit as prayed for by the Respondent/Plaintiff with costs. 4. At the time of admission of the Second Appeal, this Court has formulated the following Substantial Question of Law: "Whether the findings arrived at by the Courts below that the promissory note on which the suit is filed is supported by consideration, when the defendant had denied the consideration, in the context of the evidence of the plaintiff in an earlier suit which is marked as Ex.B2?" The Contentions, Discussions and Findings on Substantial Question of Law : 5. It is the contention of the Learned Counsel for the Appellant/Defendant that P.W.1 (Plaintiff), in his deposition in the earlier suit, viz. It is the contention of the Learned Counsel for the Appellant/Defendant that P.W.1 (Plaintiff), in his deposition in the earlier suit, viz. Ex.B2 has clearly stated that he has no other pending Pronotes with him apart from Ex.A1-Pronote dated 09.02.1994 and this deposition of the Respondent/Plaintiff will unerringly point out that the suit claim based on Ex.A1-Pronote dated 09.02.1994 is an untrue and incorrect one. 6. The Learned Counsel for the Appellant/Defendant urges before this Court that the Respondent/Plaintiff filed the present suit by making material alterations in the Pronote dated 09.02.1991 (the amount due on the same has already been repaid by the Appellant/Defendant). 7. According to the Learned Counsel for the Appellant/Defendant, the Appellant/Defendant has already repaid the entire amount due on Pronote dated 09.02.1991 to the Respondent/Plaintiff and settled the said loan amount and that due to misunderstanding between the parties, the Respondent/Plaintiff with malafide intention and ulterior motive has made material alteration in the Pronote dated 09.02.1991, more particularly in respect of the year of execution from 1991 to 1994 by altering the last number 1 as 4. Also that, at the time of execution of the said Pronote on 09.02.1991, none has signed as a witness in it. 8. Added further, it is the submission of the Learned Counsel for the Appellant/Defendant that the Respondent/Plaintiff obtained the signature of his brothers brother-in-law as an attesting witness and with the material alterations and fabrications, he used the Pronote and falsely claimed that the Appellant/Defendant has borrowed Rs.8,300/- from him on 09.02.1994. 9. The stand of the Appellant/Defendant is that P.W.2, in his evidence before the trial Court has clearly deposed that he signed as a witness in the suit Pronote about seven years prior to his examination in the year 1991 and actually, Ex.A1, the suit Pronote is dated 09.02.1991 and the Respondent/Plaintiff has made material alterations in it in respect of the years from 1991 to 1994 and filed the present suit. 10. 10. The Learned Counsel for the Appellant/Defendant projects a plea that at the insistence of the Respondent/Plaintiff, the Appellant/Defendant has executed three Pronotes on 09.02.1992 by post-dating the same as 09.02.1992, 09.02.1993 and 09.02.1994 as security for the due repayment of the amount due under the Pronote dated 09.02.1991 and by using one of the Pronotes dated 09.02.1992, the Respondent/Plaintiff filed O.S.No.93 of 1995 earlier against the Appellant/Defendant for recovery of a sum of Rs.2000/- with interest and that the said suit has been decreed and later, the Appellant/Defendant has repaid the said decree amount. 11. In short, it is the contention of the Learned Counsel for the Appellant/Defendant that the said repayment would not in any way lead to a inference that the Appellant/Defendant executed the suit Pronote and borrowed Rs.8,300/- from the Respondent/Plaintiff on 09.02.1994. 12. Yet another submission is made on behalf of the Appellant/Defendant that the Respondent/Plaintiff has failed to establish the demand of consideration on 09.02.1994, viz. on the alleged date of execution of Ex.A1 and hence, the suit is liable to be dismissed. 13. Conversely, it is the contention of the learned Counsel for the Respondent/Plaintiff that the trial Court as well as the First Appellate Court on an analysis and appreciation of the oral and documentary evidence on record have concurrently held that Ex.A1-suit Pronote dated 09.02.1994 has been executed by the Appellant/Defendant to and in favour of the Respondent/Plaintiff and consequently held that Ex.A1-Pronote is a true one and it has not been created and passed a Decree as prayed for in the plaint with costs. As such, the concurrent findings of the Courts below are not to be interfered with. 14. In the plaint, the Respondent/Plaintiff has averred that on 09.02.1994, the Appellant/Defendant borrowed a sum of Rs.8,300/-from him for his agricultural expenditure and executed a Pronote for the said amount on the same day in his favour (Respondent/Plaintiff), agreeing to repay the same to him with interest at the rate of Rs.1/- per Rs.100/- per month. 15. Further, the Respondent/Plaintiff has issued a Registered Notice to the Appellant/Defendant and the Appellant/Defendant has failed to issue any Reply Notice after receiving the notice dated 25.11.1996. 15. Further, the Respondent/Plaintiff has issued a Registered Notice to the Appellant/Defendant and the Appellant/Defendant has failed to issue any Reply Notice after receiving the notice dated 25.11.1996. Hence, the suit has been allowed by the Respondent/Plaintiff praying for issuance of a direction by the Court in directing the Appellant/Defendant to pay the suit amount of Rs.10,493.25 with future interest on Rs.8,300/- from the date of the suit till the date of realization along with costs. 16. The Appellant/Defendant in his Written Statement has inter alia taken a plea that in O.S.No.93 of 1995, the present suit Pronote dated 09.02.1994 loan claim has not been claimed and even in O.S.No.93 of 1995 enquiry, no evidence has been let in by the Respondent/Plaintiff that the present suit Pronote dated 09.02.1994 is pending and the Respondent/Plaintiff has no right to file the present suit. Also, the cause of action is not true and the suit filed is not maintainable. 17. The evidence of P.W.1 is that the Appellant/Defendant, three years before, has received a sum of Rs.8,300/- from him and executed a Pronote in his favour and that the loan has been taken by the Appellant/Defendant for farm expenses and he agreed to pay interest of Rs.2/- for Rs.100/-per month and Ex.A1 is the Pronote which has been written by the Appellant/Defendant and in Ex.A1-Pronote, two signatures have been affixed by the Appellant/Defendant and in Ex.A1, Pronote, one Perumal has signed as a witness and in spite of repeated demands, the Appellant/Defendant has not paid the principal and interest. 18. It is the further evidence of P.W.1 that in O.S.No.93 of 1995, he has not mentioned about the present suit Pronote Ex.A1, dated 09.02.1994 for Rs.8,300/- and since for that Pronote, there has been time, he has not spoken about the same and Ex.B2 is the certified copy of his deposition tendered in O.S.No.93 of 1995. 19. Continuing further, it is the evidence of P.W.1 that the witness has been brought in by the Appellant/Defendant and the Appellant/Defendant has also purchased and brought the stamp and the witness Perumal has signed in the Pronote with the pen of the Appellant/Defendant and at the time of execution of the Pronote, no other person has been present. 19. Continuing further, it is the evidence of P.W.1 that the witness has been brought in by the Appellant/Defendant and the Appellant/Defendant has also purchased and brought the stamp and the witness Perumal has signed in the Pronote with the pen of the Appellant/Defendant and at the time of execution of the Pronote, no other person has been present. P.W.1, in his evidence (to a suggestion) adds that in Ex.A1-Pronote, dated 09.02.1994, ink has been slightly smudged and for this, the answer is at the time of writing itself, it has remained in that fashion and it is incorrect to state with the help of the Pronote of the year 1991, Ex.A1 has been created and the present suit has been filed. 20. It is the evidence of P.W.2 that he does not know when the Appellant/Defendant has asked for money and on Ex.A1, Pronote, dated 09.02.1994, the Respondent/Plaintiff has given a sum of Rs. 8,300/- to the Appellant/Defendant and at the time of writing of Ex.A1-Pronote, the year, month and date have remained properly and it is incorrect to state that in Ex.A1-Pronote, the year, month and date have been smudged and it is wrong to state that the Appellant/Defendant has not received any loan from the Respondent/Plaintiff and that they have created Ex.A1-Pronote, dated 09.02.1994. 21. D.W.1 (Defendant), in his evidence has deposed that he has not executed Ex.A1-Pronote and he has only received a sum of Rs.8,300/-on 09.02.1991 from the Respondent/Plaintiff and has executed a Pronote for which he has paid the principal and interest amount during December 1994 and when the Respondent/Plaintiff has filed O.S.No.93 of 1995, he has not made mention of the present Ex.A1-suit Pronote. 22. D.W.1, in his evidence has also deposed that in the Written Statement, he has signed in English and in the Vakalat, he has signed in Tamil and he used to sign differently in two fashions like that and there is a difference in regard to the signature in Ex.A1 and the signature seen in the Pronote. Even there is a difference in the letter K. 23. D.W.1 has also added in his evidence that he has written the recitals of the Pronote in O.S.No.93 of 1995 and there is no enmity between the witness who signed in Ex.A1 and himself and that the Respondent/Plaintiff used to affix his thumb impression. 24. Even there is a difference in the letter K. 23. D.W.1 has also added in his evidence that he has written the recitals of the Pronote in O.S.No.93 of 1995 and there is no enmity between the witness who signed in Ex.A1 and himself and that the Respondent/Plaintiff used to affix his thumb impression. 24. The Learned Counsel for the Appellant/Defendant drawing the attention of this Court to the evidence of P.W.1 (Plaintiff) in O.S.No.93 of 1995 namely, Ex.A2 to the effect that three Pronotes have not been returned after putting the dates as 09.02.1992, 09.02.1993 and 09.02.1994 and with him there are no other bonds other than Ex.A1, Pronote and submits that this evidence of P.W.1 in the earlier suit viz., O.S.No.93 of 1995 between the parties cuts the case of the Respondent/Plaintiff and when P.W.1 himself in O.S.No.93 of 1995 has deposed that three Pronotes have not been executed by putting the dates as 09.02.1992, 09.02.1993 and 09.02.1994. Even the present suit filed by the Respondent/Plaintiff based on Ex.A1, Pronote dated 09.02.1994 for Rs.8,300/- cannot be a true one and the evidence of P.W.1 as referred to supra in the earlier suit clearly establishes the fact that the present suit Pronote Ex.A1 dated 09.02.1994 for Rs.8,300/- is only a false and created one by the Respondent/Plaintiff. 25. It is to be pointed out that an admission is a self-harming and not a self-serving statement, express or implied, oral or written, which is adverse to an individuals case. 26. A person against whom an admission has been proved may call upon his opponent, as a part of latters case, to prove so much of the entire statement, document or correspondence, containing or referred to in an admission, as is necessary to explain it, although such additional part is unfavourable to the other side proving admission. 27. Admissions are not conclusive, although they are pieces of evidence. Admissions do not constitute Estoppel. A maker of an admission is at liberty to prove that it is mistaken or it is untrue. 28. The previous admissions of a party are substantial evidences by themselves against the maker. Admissions must be taken as a whole as per the decision rendered by the Honourable Supreme Court in AIR 1979 SC 154 (HajiC.H.Mohammad Koya vs. T.K.S.M.A.Muthukoya). Admissions must be unequivocal. It must be comprehensive. 28. The previous admissions of a party are substantial evidences by themselves against the maker. Admissions must be taken as a whole as per the decision rendered by the Honourable Supreme Court in AIR 1979 SC 154 (HajiC.H.Mohammad Koya vs. T.K.S.M.A.Muthukoya). Admissions must be unequivocal. It must be comprehensive. It must go to the point of issue or the whole log. Admissions are receivable to prove matters of Law or matters mixed of Law and Fact. 29. One cannot ignore an important fact that no doubt in Ex.B2 – Certified Copy of Deposition of P.W.1 in the earlier suit in O.S.No.93 of 1995, P.W.1 has categorically deposed that apart from Ex.A1-Pronote, there are no other pending Pronotes and further, dates have not been put as 09.02.1992, 09.02.1993 and 09.02.1994 and three bonds have not been executed. But under the Indian Evidence Act, 1872, a stray admission made by a witness in a judicial proceeding/deposition in a suit is not to be construed as an admission. For a deposition made by a witness or by a party, to be an admission, the whole evidence and the totality of the circumstances under which the evidence tendered by a party in the previous suit will have to be taken together in entirety. 30. Based on the aforesaid legal principle, this Court is of the considered view that the deposition of P.W.1 in the earlier suit in O.S.No.93 of 1995 to the effect that apart from Ex.A1, Pronote, dated 09.02.1994, there are no other pending Pronotes and that three Pronotes have not been executed on 09.02.1992, 09.02.1993 and 09.02.1994 by putting the dates, cannot be construed as tacit admission made by the Respondent/Plaintiff and certainly the said admission will not help the Appellant/Defendant to advance his case any further, in the considered opinion of this Court. 31. Coming to the plea of material alteration that in Ex.A1-suit Pronote, the number 1 has been changed as number 4 in the year from 1991 to 1994 by altering the last number 1 as number 4 as referred to supra, this Court opines that except the year 1994, month February, date 9 and the Tamil month Thai, Tamil date 27, District Periyar, Taluk Gobi, Village Koogaloor, which are smudged, other details in the unfilled printed pronote are in clear terms written in Tamil. Merely because the year 1994, month February and date 9 and the Tamil month Thai and the Tamil date 27, District Periyar, etc have been smudged, it cannot be said that Ex.A1 is affected by or vitiated by material alteration as per Section 87 of the Negotiable Instruments Act, 1881. Even, P.W.2, in his evidence has clearly deposed that at the time of execution of Ex.A1-Pronote, dated 09.02.1994, by the Appellant/Defendant, it has been in proper fashion and also deposed that in Ex.A1, Pronote, the year, month and date have been smudged. In fact, P.W.2 has specifically stated that Ex.A1-Pronote dated 09.02.1994 for Rs.8,300/- has been created by them. 32. On going through the contents/recitals of Ex.A1-Pronote, dated 09.02.1994, this Court comes to an irresistable and inescapable conclusion that the number 1 in the year 1991 has not been changed as number 4 in the year 1994, as alleged by the Appellant/Defendant. Per contra, there is a cogent, convincing and clear-cut sufficient acceptable evidence on the side of the Respondent/Plaintiff viz., P.Ws.1 and 2 that Ex.A1, Pronote has been executed by the Appellant/Defendant on 09.02.1994 for Rs.8,300/-. 33. At the risk of repetition, this Court has already held that the admission made by P.W.1 in Ex.B2 in the earlier suit in O.S.No.93 of 1995 cannot be construed to be an admission in the eye of law and certainly, the entire evidence of P.W.1 in the present suit in O.S.No.93 of 1995, goes to show clearly that there has not been an admission as a whole and therefore, a stray admission or a haphazard admission or a truncated admission cannot take the place of an Admission as contended by the Appellant/Defendant, in the considered opinion of this court. 34. Moreover, the Appellant/Defendant as D.W.1 himself has clearly stated in his evidence that he signed in the Written Statement in English and in the Vakalat in Tamil. Further, the manner in which he used to sign differently goes to show that he is a person who signs in English and in Tamil on different occasions and in different situations. 35. Moreover, D.W.1 has not denied his signature in Ex.A1 and also not denied the recitals in Ex.A1-Pronote, dated 09.02.1994. Further, the manner in which he used to sign differently goes to show that he is a person who signs in English and in Tamil on different occasions and in different situations. 35. Moreover, D.W.1 has not denied his signature in Ex.A1 and also not denied the recitals in Ex.A1-Pronote, dated 09.02.1994. Of course, he has denied about the same fact during the course of evidence is not to be accepted by this Court and such plea taken by him is also out rightly rejected by this Court. Even D.W.1, in his evidence (cross-examination) has candidly admitted that except his initial letters, his other signatures have been admitted by him and therefore, it is clear that he himself has executed Ex.A1-Pronote, dated 09.02.1994 to and in favour of the Respondent/Plaintiff, in the considered opinion of this Court. 36. In the light of the aforesaid qualitative and quantitative discussions, this Court, also taking note of the attending facts and circumstances of the case in a cumulative and integral fashion, comes to an inevitable conclusion that Ex.A1-suit-Pronote dated 09.02.1994 for Rs.8,300/- has been executed by the Appellant/Defendant to and in favour of the Respondent/Plaintiff and he has received the amount mentioned in the Pronote as consideration. In fact, both the Courts below have rightly held that Ex.A1, suit Pronote, dated 09.02.1994 has been executed by the Appellant/Defendant to and in favour of the Plaintiff for consideration and the reliance placed on the side of the Appellant/Defendant to the deposition of P.W.1 (Plaintiff) in the earlier suit in Ex.B2 will not in any way aid him or the same will come to his rescue. In short, the findings rendered by the Courts below do not warrant interference in the hands of this Court sitting in Second Appeal, since they do not suffer from any material irregularity or patent illegality in the eye of law. Per contra, the said findings have been arrived at based on the sufficient materials available on record. Accordingly, the Substantial Question of Law is answered against the Appellant/Defendant. 37. In the result, the Second Appeal is dismissed, leaving the parties to bear their own costs. Resultantly, the Judgment and Decree of the First Appellate Court dated 16.09.1998 made in A.S.No.19 of 1998 are confirmed by this Court for the reasons assigned in this Appeal. The Appellant/Defendant is granted three months time to pay the Decree amount.