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2013 DIGILAW 2476 (MAD)

K. Raghupathy v. K. R. Paneerselvam

2013-07-16

G.RAJASURIA

body2013
JUDGMENT :- 1. This second appeal is focussed by the defendant, inveighing the judgement and decree dated 29.6.2012 passed by the learned II Additional District Court, Salem, in confirming the judgement and decree dated 26.9.2011 passed by the learned Principal Sub Court, Salem, in O.S.No.205 of 2005, which was one for recovery of money. 2. The parties, for thesake of convenience, are referred to here under according to their litigative status and ranking before the trial Court. 3. A r'esume of facts absolutely necessary and germane for the disposal of this second appeal would run thus: The respondent herein, as plaintiff, filed the suit based on promissory note on the ground that the defendant borrowed a sum of Rs.1,20,000/-(rupees one lakh twenty thousand) from him, undertaking to repay the same with 18% interest per annum from the date of pro note till payment. Subsequently, the defendant committed default, whereupon, after issuance of pre suit notice by the plaintiff and getting reply with untenable claims from the defendant, the former filed the suit. 4. Per contra, in a bid to torpedo and pulverise the averments as found in the plaint, the defendant filed the written statement, the gist and kernel of the same would run thus: The defendant worked as an employee/car driver in P.S.K.Finance and Chit, Salem-1. He was a successful bidder of a chit and for the prompt repayment of the subscriptions, various blank pronote formates, blank cheques and blank stamped papers signed by the said financial firm from him. Subsequently the amount due payable by the defendant to the P.S.K. Finance and Chits was discharged; however, the said firm failed to return the blank signed papers, but the said finance caused the present suit to be filed with the help of the plaintiff. A police complaint also was lodged by the defendant. Accordingly, the defendant would pray for the dismissal of the suit. 5. W hereupon issues were set down for trial, during which, the plaintiff examined himself as P.W.1 along with P.W.2 and Exs.A1 to A3 were marked. The defendant examined himself as D.W.1 along with D.W s.2 and 3 and Exs.B1 to B3 were marked. 6. Accordingly, the defendant would pray for the dismissal of the suit. 5. W hereupon issues were set down for trial, during which, the plaintiff examined himself as P.W.1 along with P.W.2 and Exs.A1 to A3 were marked. The defendant examined himself as D.W.1 along with D.W s.2 and 3 and Exs.B1 to B3 were marked. 6. Ultimately, the trial court decreed the suit mandating the defendant to pay the principal amount with 12% interest per annum from the date of suit till the date of decree and 6% interest per annum from the date of decree till realization on the principal amount, with cost. As against which, the defendant preferred the appeal for nothing but to be dismissed by the first appellate Court, confirming the judgement and decree of the trial Court. 7. Challenging and impugning the judgements and decrees of both the fora below, this second appeal has been focussed by the defendant on various grounds and also suggesting the following substantial question of law: "W hen the presumption under Section 118 of the Negotiable Instruments Act has been rebutted, whether the Courts below were correct in decreeing the suit based on the suit promissory note?" (extracted as such) 8. At the outset itself, I would like to fumigate my mind with the recent decision of the Hon'ble Apex Court reported in 2012(8) SCC 148 [Union of India v. Ibrahim Uddin and another]. 9. The learned counsel for the appellant/defendant would stress upon the fact that Section 118 of the Negotiable Instruments Act cannot be pressed into service in the facts and circumstances of this case, as the evidence on record on the side of the plaintiff would portray and proclaim that absolutely there is no valid reason for believing the version of P.Ws.1 and 2. According to her, the defendant probabilized his case by examining himself as D.W.1 along with D.W.2; but the Courts below unjustifiably discarded the same. The lower Court failed to take note of the fact that the defendant was a driver under P.S.K.Finance and Chits and it is because of the said Finance Company, the suit has been filed with the help of the plaintiff. Precisely she would pray for the dismissal of the original suit after setting aside the judgements and decrees of both the fora below. 10. Precisely she would pray for the dismissal of the original suit after setting aside the judgements and decrees of both the fora below. 10. The cited decision would exemplify and demonstrate that as against the concurrent finding of facts, no second appeal would lie, unless there is any perversity or illegality in it. 11. A mere running of the eye over the judgements of the trial Court as well as the first appellate would reveal and connote that both the Courts below, after analysing the evidence on record held that the case as put forth by P.W.1(the plaintiff) and P.W.2 conveyed and pointed up, that the defendant borrowed a sum of Rs.1,20,000/-(rupees one lakh and twenty thousand) from the plaintiff. The Courts also gave a concurrent finding that absolutely there is no jot or iota of evidence to indicate and exemplify that the defendant in fact was a subscriber to a chit and only in that connection he signed the blank pro note formates. Hence, I am of the view that absolutely there is no necessity to interfere with the concurrent finding of facts by the Courts below. The defendant has not even produced any note book or any such evidence to prove and establish that he discharged the subscription amounts due payable by him and despite his demanding for the return of those blank formates from the P.S.K.Finance and Chits they did not return and that they caused the present suit to be filed by the plaintiff. 12. All told, I could see no merit in the second appeal and accordingly it is dismissed. However, there is no order as to costs.