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2012 DIGILAW 3620 (MAD)

A. S. Pasupathi (Deceased) v. K. M. Ramasamy

2012-08-17

G.RAJASURIA

body2012
Judgment :- 1. The plaintiffs in the suit filed this appeal as against the judgement and decree dated 11.03.1993 passed by the Subordinate Judge, Erode, in O.S.No.9 of 1984. which was filed for recovery of money. 2. The parties, for the sake of convenience, are referred to hereunder according to their litigative status and ranking before the trial Court. 3. A summation and summarisation of the relevant facts absolutely necessary and germane for the disposal of this appeal would run thus: (a) The original deceased plaintiff/A.S.Pasupathi filed the suit as against the L.Rs. of the deceased borrower under the suit promisory note dated 30.12.1980 for recovering a sum of Rs.34,000/- with subsequent interest on Rs.25,000/-from the date of suit till the date of realisation. Pending the suit, the said Pasupathi died and his L.Rs. P2 to P4 were added. (b) The defendants resisted the suit by filing the written statement. (c) The trial Court framed the relevant issues. (d) During trial, the third plaintiff/Raj Venkatesh examined himself as P.W.1 along with P.W.2-Raja and P.W.3-Nataraja Gounder and Exs.P1 to P7 were marked. The second defendant-Valliammal examined herself as D.W.1 and Ex.D1 was marked. (e) Ultimately, the trial Court dismissed the suit. 4. Being aggrieved by and dissatisfied with the judgment and decree of the trial Court, the plaintiffs preferred this appeal on various grounds. 5. The learned counsel for the appellants/plaintiffs, placing reliance on the grounds of appeal would develop his arguments, which could pithily and precisely be set out thus: (a) The lower Court erred in holding that the plaintiffs failed to prove the due consideration passed under the made over endorsement found on the back of the suit promisory note. (b) P.W.2 in his evidence candidly deposed about the made over of the promisory note for consideration, but that fact was not taken note of by the lower Court. (c) The legal presumption attached to such promisory note and endorsement was not taken note of by the lower Court. Accordingly, he would pray for setting aside the judgment and decree of the lower Court and for decreeing the suit as prayed for. 6. (c) The legal presumption attached to such promisory note and endorsement was not taken note of by the lower Court. Accordingly, he would pray for setting aside the judgment and decree of the lower Court and for decreeing the suit as prayed for. 6. In a bid to torpedo and pulverise the arguments as put forth and set forth on the side of the appellants/plaintiffs, the learned counsel for the respondents/defendants would pyramid his arguments, which could tersely and briefly be set out thus: (a) The lower Court appropriately and appositely considered the fact that the endorsement which was not even exhibited as a separate exhibit, was relied on by the plaintiffs, but they failed to prove the same. (b) P.W.2 who happened to be the alleged original promisor did not speak anything about the factum of the amount having been given to two persons namely D1/Kandasamy and D2/Ramasamy. D1/Kandasamy remained ex parte. As such, the entire transaction was not proved and the lower Court correctly held that the plaintiffs failed to prove the case and accordingly dismissed it. 7. The points for consideration are as to: (1) Whether the suit pro-note was not supported by consideration? (2) Whether the made over endorsement found on the back of suit pro note Ex.A1, which was not specifically marked, was also not supported by consideration? (3) Whether there is any perversity or illegality in the judgment of the lower Court? 8. All these points are taken together for discussion as they are inter linked and inter woven with one another. 9. According to the case of the plaintiffs, Ex.A1 – the suit pro note emerged in consideration of the P.W.2 - A.M. Raja having paid a sum of Rs.25,000/- to one Kandasamy and Ramasamy (D1 and D2) jointly. It is the case of the deceased original plaintiff Pasupathi, that on 27.12.1983, the said pro note was made over to him by Raja on receiving a sum of Rs.33,976/- from him. 10. The plaint was presented only on 02.01.1984 on the ground that even though limitation period got expired on 30.12.1983, the Court was on holiday during the period between 30.12.1983 and 01.01.1984 and the Court re-opened only on 02.01.1984. However, there was no issue framed relating to limitation point and the defendants also did not raise any specific plea in that regard. 11. However, there was no issue framed relating to limitation point and the defendants also did not raise any specific plea in that regard. 11. The learned counsel for the plaintiffs would appropriately and appositely, draw the attention of this Court to the deposition of P.W.2 the alleged original promisor and highlight that absolutely there is no clarity in his deposition. 12. A plain reading of the deposition of P.W.2-A.M.Raja, the alleged original promisor, would exemplify and demonstrate that the said Raja did not state anything that he lent money to D1 and D2 jointly. In fact his deposition in chief, would run thus: “Tamil” 13. There is no gainsaying or denying of the fact that at the fag end of the limitation period the alleged assignment took place. Had really there been lending and borrowal, there is no knowing of the fact as to why for making such made over, P.W.2 should wait till the fag end of the limitation period; the pro note emerged on 30.12.1980, whereas, the made over allegedly took place on 27.12.1983. It is also a fact that the said made over endorsement was not specifically marked. Be that as it may, it is the duty of the plaintiffs to prove the actual consideration passed under such made over, but P.W.2 in his deposition did not say as to how much amount was received from the original deceased plaintiff in consideration of making such made over. Mere invocation of Section 118 of the N.I. Act in the factual matrix may not be tenable, as the defendants who happened to be the L.Rs. of the deceased specifically challenged the factum of consideration having been passed from the alleged promisor to the promisees. In this case, the original alleged promisor Ramasamy was not alive and he was not sued and only his L.Rs. are sued, who categorically challenged the genuineness of the pro note itself. In such a case, the initial burden was on the plaintiffs whose propositus, the deceased original plaintiff who got made over from P.W.2, the alleged original promissee to establish the case, but the evidence of P.W.1 itself is murky and shaky and based on such titchy and sketchy evidence, the lower Court could not decree the suit in favour of the plaintiffs. 14. 14. The scope of Section 118 of the Negotiable Instruments Act 1881, does not provide any presumption as to execution of the pro note. Presumption as to consideration as found embedded therein, is to the effect that it is a rebuttable one. Matters where L.Rs. of the deceased promisor are concerned, blindly the presumption relating to consideration cannot be mulcted on them, when such L.Rs deny the execution of the pro note by their propositus. Axiomatic as it is, the plaintiff who sues on the pro note should prove the due execution by the promissee referred to in the pronote. Evidence in that regard is lacking, as the deposition of P.W.3 the scribe, who is the close relation of the plaintiffs' family and the deposition of P.W.1 coupled with the testimony of P.W.2, the alleged original promisor do not impose confidence even in respect of execution of the suit pro note. The defendants attributed collusion between the plaintiffs' and D1 who remained ex parte. D1's such conduct buttresses the stand of the contestant defendants who are L.Rs. of deceased alleged one of the promissees. 15. The lower Court also in its judgment adverted to the fact that P.W.1 pleaded total ignorance about the transaction which allegedly emerged between P.W.2 on the one side and D1 and D2 on the other side. The lower Court also took into consideration the fact that P.W.3, who was examined as scribe of the suit pro note, is closely related to P.W.1 The lower Court which had the opportunity of noting the demeanour of the witnesses examined before it, disbelieved their evidence. 16. In such a case, I do not see any reason to disagree with the view taken by the lower Court in view of the objective circumstances highlighted in the judgment of the lower Court. In the result, I am of the view that absolutely there is no merit in this appeal and it is dismissed. However, there shall be no order as to costs.