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2012 DIGILAW 4110 (MAD)

K. Rukmani v. K. S. Ponnusamy Gounder

2012-10-04

G.RAJASURIA

body2012
Judgment :- This appeal is focussed by the defendant animadverting upon the judgment and decree dated 26.11.2008 passed in O.S.No.330 of 2007 by the learned Additional District Judge, Fast Track Court No.IV, Bhavani. 2. The parties are referred to hereunder according to their litigative status and ranking before the trial Court. 3. Compendiously and concisely the germane facts absolutely necessary for the disposal of this appeal would run thus: (a) The respondent/plaintiff filed the suit for recovery of a sum of Rs.6,49,600/-, based on two suit promissory notes. (b) Challenging and impugning the genuineness of the suit pr notes, the defendant filed the written statement resisting the suit and denying the liability. (c) Up went the trial, wherein, the plaintiff-Ponnusamy Gounder examined himself as P.W.1 along with P.Ws.2 and 3 and Exs.A1 to A7 were marked; the defendant-Rukmani examined herself as D.W.1 along with D.Ws.2 to 4 and Exs.B1 to B10 were marked. (d) Ultimately the trial Court decreed the suit. 4. Being aggrieved by and dissatisfied with the same, this appeal has been filed on various grounds. 5. The gist and kernel of the case of the plaintiff as stood evinced from the plaint would run thus: The defendant on 21.11.2004, borrowed a sum of Rs.2,10,000/-from the plaintiff and executed the first suit promissory note undertaking to repay the sum with 12% interest per annum on demand. Subsequently on 19.05.2005, the defendant borrowed once again a sum of Rs.2,80,000/- from the plaintiff and executed the second suit promissory note. Inasmuch as there was default in repayment of the loan amounts, the notice Ex.A3 was issued on 31.07.2007 by the plaintiff, for nothing but to get a reply from the defendant denying her liability. Whereupon the suit was filed. 6. Per contra, the defendant in a bid to torpedo and pulverise the contentions as put forth and set forth on the side of the plaintiff, filed the written statement, the gist and kernel of it would run thus: The defendant borrowed only a sum of Rs.1,00,000/-from the plaintiff. Thereafter, because the plaintiff insisted for furnishing security for the prompt repayment of the said sum, at his behest and compulsion, an agreement to sell emerged between the plaintiff and a third party Kali Gounder concerning the defendant's immovable property. Subsequently the plaintiff through Kali Gounder filed the suit O.S.No.95 of 2003 for specific performance of such agreement. Thereafter, because the plaintiff insisted for furnishing security for the prompt repayment of the said sum, at his behest and compulsion, an agreement to sell emerged between the plaintiff and a third party Kali Gounder concerning the defendant's immovable property. Subsequently the plaintiff through Kali Gounder filed the suit O.S.No.95 of 2003 for specific performance of such agreement. Wherefore, subsequently there was no possibility or probability of the defendant twice borrowing such huge amounts of Rs.2,10,000/- and Rs.2,80,000/- from the plaintiff and executing the two suit pro notes. At the time of lending the sum of Rs.1,00,000/-itself, the plaintiff got as many as 15 blank pronote formats signed by the defendant and her family members and accordingly, she would pray for the dismissal of the suit. 7. The learned counsel for the appellant/plaintiff inviting the attention of this Court to Exs.B1 to B9, would pyramid his argument, which could pithily and precisely be set out thus: Exs.B1 to B9 no doubt were filed after examination of P.W.1. Those exhibits were marked during the chief examination of D.W.1. The Advocate for the plaintiff simply cross examined suggesting as though all those documents were cooked up ones, purely for the purpose of defending the case. Those exhibits are letters sent by post and some postal covers bearing postal seals were marked and some of the documents are inland letters sent by the plaintiff to the defendant as well as to her husband. All those letters emerged during the year 1999 and 2000 and in such a case, there was absolutely no possibility or probability of the defendant borrowing such huge amounts during the year 2004 as well as in 2005 and the plaintiff also would not have lent such amounts. Accordingly, he would pray for setting aside the judgment and decree of the trial Court and for dismissing the suit. 8. In a bid to contradict and resist the arguments set forth and put forth on the side of the defendant, the learned counsel for the respondent/plaintiff would advance his arguments, which could pithily and precisely be set out thus: The case of the defendant is fraught with falsity and it is nothing but a load of baloney. 8. In a bid to contradict and resist the arguments set forth and put forth on the side of the defendant, the learned counsel for the respondent/plaintiff would advance his arguments, which could pithily and precisely be set out thus: The case of the defendant is fraught with falsity and it is nothing but a load of baloney. All of a sudden, without disclosing anything about Exs.B1 to B9 either in the pre suit notice or in the written statement, and that too after the closing of the plaintiff's side during trial, the defendant, filed those exhibits in Court and marked them. The counsel for the plaintiff suggested to D.W.1 that those are all concocted documents purely for the purpose of wriggling out of her liability by hook or by crook. In such a case, no reliance could be placed on those exhibits for the purpose of discerning the probabilities involved in this case. 9. The points for consideration are as to: (1) Whether the trial Court was justified in deciding the case simply discarding the documents Exs.B1 to B9, which were filed after the closing of the plaintiff's side during trial, and that too without ascertaining P.W.1's specific stand relating to those documents? (2) Whether there is any perversity or illegality in the judgment passed by the lower Court? 10. These points are taken together for discussion as they are inter linked and inter woven with each other. 11. I would like to fumigate my mind with the common or garden principle that preponderance of probabilities would govern the adjudication in civil cases. On the one hand, the plaintiff would project the case, as though on two occasions the defendant borrowed two amounts, so to say, Rs.2,10,000/- and Rs.2,80,000/- and that she did not repay the same, despite demands. On the other hand, the defendant would come forward with a case that the actual loan transaction between the plaintiff and herself involved only Rs.1,00,000/- (Rupees one lakh only) and in that connection, one registered agreement to sell in favour of Kali Gounder was executed by the defendant and that too at the behest and compulsion of Ponnusami, the plaintiff herein. She would rely upon Exs.B1 to B9, the letters purported to have been sent by the plaintiff to the defendant. 12. Audi alteram partem is the maxim which governs judicial adjudication. She would rely upon Exs.B1 to B9, the letters purported to have been sent by the plaintiff to the defendant. 12. Audi alteram partem is the maxim which governs judicial adjudication. In this case, the plaintiff even though was examined as a witness, at that time, he was not confronted during cross examination with Exs.B1 to B9, as those exhibits were filed only after the closing of the plaintiff's side. The defendant also had not taken steps to get P.W.1 recalled and give opportunity to him explain his stand concerning those documents. A mere running of the eye over those documents would display and demonstrate that anterior to the emergence of the said agreement to sell, these correspondences cropped up. Ex facie and prima facie they would cumulatively highlight the fact that the plaintiff indulged in tirade as against the defendant and her husband, and he would accuse them that they were so hard hearted in not repaying the loan which he arranged for them. If really Exs.B1 to B9 are true correspondences emanated from the plaintiff, then it would be quite obvious and axiomatic that the plaintiff might not have parted with such huge suit amounts thereafter, based on two bare suit promissory notes. In the event of P.W.1 being recalled and confronted with those documents, and himself denying the genuineness of them, then with the help of an handwriting expert, those documents have to be examined to find out whether the plaintiff signed those letters or not. As such, those documents are having importance and significance of their own in the facts and circumstances of this case and they cannot be pooh-poohed or belittled, discarded or despised as pococurante ones. In a matter of this nature, simply placing reliance on the presumption as per Section 118 of the Negotiable Instruments Act, a decision cannot be rendered. The Court has to delve deep into the circumstances and render judgment, but the trial Court failed to do so forgetting the trite proposition that every trial is a voyage of discovery wherein truth is the quest. As an appellate Court, I would not be justified in ignoring Exs.B1 to B9 as unworthy of being considered on the ground that those documents were belatedly produced, when in fact they were all purported to be letters sent through post bearing postal seals of the year 1999 and 2000. As an appellate Court, I would not be justified in ignoring Exs.B1 to B9 as unworthy of being considered on the ground that those documents were belatedly produced, when in fact they were all purported to be letters sent through post bearing postal seals of the year 1999 and 2000. Wherefore a broad based roving probe is necessary in this case. 13. At this juncture, I recollect the maxim: In re dubia, magis inficiatio quam affirmatio intelligenda-In a doubtful matter, the denial or negative is to be understood [or regarded], rather than the affirmative. 14. When evidence is lacking, it is the negative that has to be presumed and not the affirmative. Purely applying the technicalities and barely adhering to punctilious of court procedures, the High Court, cannot throw the baby along with the bath water. No doubt, the defendant could have very well produced those Exs.B1 to B9 at the earliest point of time and in fact, they ought to have listed those documents in the written statement itself, but she had not done so. Only after cross examination of the plaintiff, those documents were filed and in such a case, the trial Court itself should have ordered for recalling P.W.1, so that the truthfulness of those documents could have been ascertained and thereafter, suitable orders could have been made for taking the assistance of an handwriting expert to verify the genuineness of the purported signatures of the plaintiff found in Exs.B1 to B9. 15. Hence, I am of the considered view that necessarily the judgment and decree of the trial Court should be set aside and the matter has to be remitted back to the trial Court with the following direction: The trial Court shall do well to see that P.W.1 is recalled for being cross examined by the defendant and during such cross examination, the defendant could confront the plaintiff with those Exs.B1 to B9. In the event of denial of the signatures in those exhibits by P.W.1, it is open for the defendant to take steps to send those documents for the opinion of an handwriting expert and to that effect, defendant is at liberty to file necessary application before the trial Court also and accordingly, the trial Court should deal with the matter and dispose of it on merits within a period of four months from the date of receipt of a copy of this order. 16. Both the parties shall appear before the lower Court on 07.11.2012. Registry is directed to send back the records immediately to the lower Court.