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2013 DIGILAW 156 (MAD)

M. P. Palaniappan v. C. Rathinasamy

2013-01-08

P.R.SHIVAKUMAR

body2013
JUDGMENT 1. Notice before admission had been issued and the respondent is also represented by a counsel. The arguments advanced on both sides were heard. 2. The sole defendant in the original suit is the appellant. The respondent herein filed a suit on a promissory note for recovery of a sum of Rs.61,950/-consisting of the principal amount of Rs.50,000/- and interest on the said amount at the rate of 12% per annum from the date of promissory note till the filing of the suit together with future interest and costs. 3. According to the respondent/plaintiff, the appellant/defendant borrowed a sum of Rs.50,000/- on 15.10.2002 agreeing to repay the said amount with an interest at the rate of 12% per annum and executed the suit promissory note, but failed to keep the promise which made the respondent/plaintiff file the suit for recovery of the money under the suit promissory note. 4. The appellant/defendant filed a brief written statement denying the alleged loan transaction and also denying the execution of the suit promissory note dated 15.10.2002. In the written statement, he had contended further that it was his brother, who had borrowed some amount from the respondent/plaintiff and the respondent/plaintiff pressurized the appellant/defendant to take the responsibility of settling the amount borrowed by his brother; that the appellant/defendant refused to do so and that the respondent/plaintiff forged the suit promissory note and filed the suit in order to harass the appellant/defendant. 5. Based on the above said pleadings, necessary issues were framed by the trial Court and in the trial, including the respondent/plaintiff, three witnesses were examined as P.Ws.1 to 3 and four documents were marked as Exs.A1 to A4 on the side of the respondent herein/plaintiff. The appellant herein/defendant was figured as the sole witness (D.W.1) and no document was marked on his side. 6. The learned trial Judge (learned District Munsiff, Sathyamangalam], after considering the evidence, accepted the case of the plaintiff and rejected the defence plea of the appellant herein/defendant, which resulted in a judgment and decree directing the appellant herein to pay the amount claimed in the suit with a further interest pendente lite on the principal sum at the rate of 9% per annum and a post decree interest at the rate of 6% per annum along with the litigation cost. The said judgment and decree of the trial Court dated 10.12.2007 made in O.S.No.454 of 2004 on the file of the Court of District Munsif, Sathyamangalam, was challenged before the lower Appellate Court viz., Sub Court, Sathyamangalam in A.S.No.8 of 2010. The learned Appellate Judge, after hearing, concurred with the finding of the trial Court in all respects and dismissed the appeal without cost by a judgment and decree dated 24.02.2010. The said judgment and decree of the Lower Appellate Court are challenged in the present second appeal on various grounds set out in the memorandum of grounds of second appeal. 7. The second appeal has arisen out of a simple money suit. As against the clear plea of the respondent/plaintiff that the appellant/defendant borrowed a sum of Rs.50,000/-on 15.10.2002 and executed the suit promissory note marked as Ex.A.1, the appellant/defendant had taken a defence plea that the suit promissory note was not executed by him; that he did not borrow any amount from the respondent/plaintiff and that the suit promissory note came to be forged in order to harass him because of his refusal to take the responsibility of settling the claim of the respondent/plaintiff against the brother of the appellant/defendant. The definite stand taken by the appellant/defendant in his written statement is that Ex.A.1-Promissory Note is a forged one and the signature found therein is not that of the appellant/defendant. But while deposing as D.W.1, even in the chief examination, he has chosen to make an admission that when his family was joint, his brother borrowed some amount from the respondent/plaintiff and for that he was asked to affix his signature in an unfilled blank promissory note which was later on filled up as the suit promissory note for filing the suit. Evidence is lacking as to what was the date on which he was made to sign in the blank promissory note and what was the amount borrowed by his brother. Moreover, the said plea is totally contradictory to the defence plea taken in the written statement. No amount of evidence adduced without a plea can be looked into. However, the admission made by the appellant/defendant in his evidence can be relied on by the respondent/plaintiff to prove his case. Moreover, the said plea is totally contradictory to the defence plea taken in the written statement. No amount of evidence adduced without a plea can be looked into. However, the admission made by the appellant/defendant in his evidence can be relied on by the respondent/plaintiff to prove his case. Both the Courts below have applied the said principle to hold that Ex.A.1-Promissory Note was genuine and was supported by consideration and the signature found therein was that of the appellant/defendant. 8. Despite there being such an admission, the learned counsel for the appellant/defendant has made a meek attempt to contend that the respondent/plaintiff had failed to prove due execution of Ex.A.1-Promissory Note and also the passing of consideration under the said promissory note. In support of his contention, the learned counsel for the appellant cited certain contradictions found in the evidence adduced on the side of the respondent/plaintiff through P.Ws.1 to 3. Such contradictions are not so material to make the Court come to a conclusion that the findings of the Courts below could be termed perverse. Moreover, when it is proved and rather admitted by the defendant that the signature found in the suit promissory note is that of the appellant/defendant as against the contrary plea made in the written statement, then the presumption of the promissory note being supported by consideration will arise. Resultantly the burden of rebutting the presumption shall stand cast on the appellant/defendant. The short testimony of D.W.1 does not contain any explanation as to under what circumstances he had affixed his signature in a blank promissory note. Except the interested testimony of D.W.1, there is no evidence to dislodge and rebut the presumption. Moreover, there is also an admission in his evidence itself that the suit promissory note is not unsupported by consideration. In his evidence itself he has stated that he affixed his signature in the suit promissory note, when it was blank, for the amount borrowed by his brother, when both the appellant/defendant and his brother were members of the joint family. Apart from the presumption, there is also such evidence in the form of admission that the suit promissory note is supported by consideration. Apart from the presumption, there is also such evidence in the form of admission that the suit promissory note is supported by consideration. The Courts below have rightly weighed the evidence in proper perspective and arrived at a correct conclusion that the suit promissory note is true and is supported by consideration and that the appellant/defendant had miserably failed to prove want of consideration and also his case that the suit promissory note was not executed by him. Moreover, the appellant/defendant had given a go-by to his case that the suit promissory note is a forged one. 9. Under such circumstances, this Court cannot come to the conclusion that the findings of the Courts below are either defective or infirm, much less perverse. The factual findings of the Courts, when not shown to be perverse, cannot be interfered with by the second Appellate Court. There is no substantial question of law involved in the second appeal. All the factual issues have been decided correctly and concurrently by the Courts below and such factual finding, at no such imagination, can be termed perverse, warranting interference by this Court in this second appeal. The second appeal deserves dismissal. 10. In the result, the second appeal is dismissed. It is brought to the notice of the Court by the learned counsel for the appellant that a sum of Rs.50,000/- was deposited by the appellant/defendant to the credit of the suit in the trial Court based on an order of this Court passed on 27.11.2012 in M.P.No.1 of 2010. The said payment is recorded and the same shall be taken into account in the execution proceedings. No costs. The connected miscellaneous petition is closed.