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2014 DIGILAW 2582 (MAD)

Thiyagarajan v. Anthoni Xavior

2014-08-12

T.RAJA

body2014
Judgment 1. The present second appeal has been directed against the impugned judgment and decree passed by the learned II Additional District Judge, Tindivanam in A.S.No.18 of 2012 dated 17.1.2013, in and by which the judgment and decree passed by the learned Principal Subordinate Judge, Tindivanam in O.S.No.14 of 2009 dated 20.9.2011, dismissing the suit filed by the respondent herein, were reversed. 2. At the outset, it may be mentioned that when the present second appeal was filed challenging the impugned judgment and decree of the first appellate Court decreeing the suit for recovery of money, the appellant/defendant has taken different grounds, namely, whether the permissive possession could be construed as an exclusive possession of the respondents especially when the title over the suit property was not proved by the respondent; whether the possession in part of the suit property is construed as the possession of the entire suit properties; whether the respondents could claim adverse possession against the appellants especially when they claimed title over the suit properties; whether the permissive occupants is entitled for injunction against the true owners especially when the suit is one for bare injunction and whether the suit for bare injunction without declaration of title is maintainable especially when the title is disputed by the appellants, however, after noticing the mistake in the memorandum of grounds of second appeal which, as per Section 100(3) of Civil Procedure Code, shall precisely state the substantial question of law involved in the appeal, has filed the additional grounds of appeal, raising the following two substantial questions of law:- ''(1) Whether the initial burden to prove the passing of consideration in a suit on promissory note is on the defendant/appellant though the defendant admitted his signature alone in the promissory note? (2) Whether the suit on promissory note could be decreed merely based on the admission of the signature alone in the promissory note by the defendant/appellant without examining any witness or scribe to the alleged pronote by the plaintiff?'' 3. Learned counsel for the appellant/defendant, heavily assailing the impugned judgment of the first appellate Court, submitted that when the suit was filed by the respondent/plaintiff on the basis of the pro-note dated 15.5.2006 stating that the appellant borrowed a sum of Rs.4,00,000/-from the respondent's wife Mrs. Learned counsel for the appellant/defendant, heavily assailing the impugned judgment of the first appellate Court, submitted that when the suit was filed by the respondent/plaintiff on the basis of the pro-note dated 15.5.2006 stating that the appellant borrowed a sum of Rs.4,00,000/-from the respondent's wife Mrs. Banumathi for his family and business expenses with an undertaking to repay the same at 12% interest per annum and thereupon executed the pro-note, Ex.A4 with his signature appended thereto, for not paying the amount either towards principal or interest to the respondent, his client has filed a detailed written statement denying the alleged borrowal of Rs.4,00,000/- from the respondent's wife Mrs. Banumathi on 15.5.2006 and agreeing to repay the same at 12% interest per annum. He further pleaded that it was the further case of the appellant that he did crusher business with the respondent and the said business was run in the name of the appellant alone. For running the business, both the appellant and the respondent had invested a sum of Rs.2,50,000/-each. However, on 15.5.2006, the appellant borrowed a sum of Rs.1,00,000/- from the respondent and as the respondent's wife was running finance business, the appellant signed the blank pro-note and gave it to the respondent. Subsequently, the appellant again borrowed a sum of Rs.50,000/- on 5.6.2006, again a further sum of Rs.50,000/-on 8.7.2006 and once again a further sum of Rs.2,00,000/-on 2.10.2006. Thereafter, the appellant was paying the interest regularly at 24% per annum. However, out of the profit in the crusher business, the appellant's share of profit of Rs.3,00,000/-was taken by the respondent. Later on, the appellant's wife also further gave a sum of Rs.1,00,000/-to the respondent that came out of the profit in the crusher business and claimed that the entire amount was repaid with interest to the respondent. On this basis, he pleaded, the appellant prayed for dismissal of the suit. When the trial Court accepted the case of the appellant and dismissed the suit disbelieving the claim made by the respondent, the first appellate Court, on appeal, taking on record the admission made by the appellant in the written statement that he received the sum of Rs.4,00,000/- from the respondent's wife, which was not the admission made by the appellant at any point of time, wrongly decreed the suit by reversing the judgment and decree of the trial Court. When at no point of time the appellant admitted the receipt of a sum of Rs.4,00,000/- from the respondent's wife, totally ignoring the pleading and the evidence of oral and documentary adduced by both sides, the first appellate Court erroneously decreed the suit. Moreover, the rudimentary principle in a case like this that the respondent/plaintiff should discharge his initial burden has been completely overlooked by the first appellate Court. When it was the repeated defence of the appellant that out of the profit in the crusher business and the appellant's share of profit of Rs.3,00,000/- was taken over by the respondent and that the respondent also started a new crusher business on 28.11.2007, the first appellate Court, he pleaded, ought not to have shifted the burden upon the appellant holding that the appellant has to prove that he had repaid the loan amount to the respondent or his wife. Concluding his arguments, the learned counsel stated that when the suit on pro-note cannot be decreed merely based on the admission of the signature in the pro-note by the appellant, without examining any witness or the scribe to the alleged pro-note by the respondent, the first appellate Court has wrongly decreed the suit by setting aside the well reasoned judgment of the trial Court. On this basis, he prayed for admission of the second appeal on the ground that important substantial questions of law have been raised for determination. 4. In reply, Mr. N. Suresh, learned counsel for the respondent/plaintiff submitted that when the respondent filed the suit for recovery of a sum of Rs.4,00,000/- on the basis of the pro-note dated 15.5.2006 executed in his favour, the appellant had filed a detailed written statement admitting the receipt of the entire amount of Rs.4,00,000/-. Even before filing the suit, when it was the consistent claim of the respondent that on 15.5.2006, the appellant borrowed a sum of Rs.4,00,000/- from the respondent's wife Mrs. Banumathi for his business expenses with an undertaking to repay the same at 12% interest per annum and thereupon executed the pro-note, Ex.A4 by appending his signature in the pro-note, which is marked as Ex.A3, the appellant, without showing any proof whatsoever that he had repaid the entire amount towards principal and interest to the respondent, rightly admitted the receipt of the above said amount on different dates. However, the trial Court, overlooking the two vital issues that the appellant, after receipt of the legal notice dated 6.10.2008 calling upon him to repay the entire amount, failed to reply and also overlooking another vital mistake committed by the appellant in the written statement that he had admitted the receipt of the amount of Rs.4,00,000/- on different dates, without there being any acceptable evidence with regard to the repayment of the entire amount to the respondent, wrongly going on a non-issue, had dismissed the suit. Aggrieved by the same, an appeal was filed. The learned II Additional District Judge, Tindivanam, taking note of the serious infirmity and the error committed by the trial Court including the deliberate omission committed by the trial Court on the admission of the receipt of a sum of Rs.4,00,000/- and also the admission of execution of the pro-note, has rightly accepted the case of the respondent. Therefore, when the appellant filed the detailed written statement admitting the fact that he had signed the pro-note, it goes without saying that he received the sum of Rs.4,00,000/-. Besides, the first appellate Court, on the basis of own admission made by the appellant in his written statement, rightly came to the conclusion that the receipt of loan amount by the appellant having been admitted by him, held that the respondent had discharged his burden. It is also a well settled legal position that when the appellant had admitted his signature in the suit pro-note, it goes without saying that the rest of the contents in the suit pro-note are to be believed as true. Taking support of Section 20 of the Negotiable Instruments Act, which empowers the holder in due course to fill up the blanks and to recover the amount from the person delivering the instrument, the first appellate Court, rightly agreeing with the case of the respondent, has decreed the suit. Therefore, the second appeal, which has not raised any substantial question of law, cannot be admitted. 5. Continuing his arguments, he has stated that the appellant failed to reply to the legal notice dated 6.10.2008. The same appellant had filed a detailed written statement admitting the case of the respondent with regard to the receipt of a sum of Rs.4,00,000/-, of course, on different dates. 5. Continuing his arguments, he has stated that the appellant failed to reply to the legal notice dated 6.10.2008. The same appellant had filed a detailed written statement admitting the case of the respondent with regard to the receipt of a sum of Rs.4,00,000/-, of course, on different dates. When there was no answer whatsoever given by the appellant, the findings recorded by the first appellate Court cannot be called in question. In support of his submissions, he has also relied upon the judgment of this Court in the case of Kuppayammal v. A. Sitheswaran and others, 2012-2-L.W.48 for the proposition that as per the Indian Stamp Act, when a person signed an instrument, which is defined under Section 2(14), it amounts to execution of the instrument. In the present case also, as rightly held by this Court in Kuppayammal's case (supra), when the appellant himself in the written statement accepted the receipt of Rs.4,00,000/- on different dates and also further admitted his signature in the pro-note, by the application of Sections 2(12) and 2(14) of the Indian Stamp Act, presumption has to be drawn that the document was rightly executed by the appellant. 6. Heard the learned counsel for the parties. 7. The brief facts leading to the filing of the second appeal may be given as under. On 15.5.2006, the appellant borrowed a sum of Rs.4,00,000/-from the respondent's wife Mrs. Banumathi for his family and business expenses with an undertaking to repay the same at 12% interest per annum and thereupon the appellant also executed the pro-note-Ex.A4, wherein the appellant appended his signature. Since the appellant has not paid any amount either towards the principal or interest to the respondent, it was the further claim of the respondent that on 10.9.2008 the respondent's wife Mrs. Banumathi made over the pro-note in favour of her husband, the respondent herein. Therefore, the respondent has become the holder in due course of the said Ex.A4. On the basis of the same, when the respondent demanded the loan amount with interest by issuing the legal notice dated 6.10.2008, the appellant remained silent, which compelled the respondent to file the suit in O.S.No.14 of 2009 for recovery of a sum of Rs.4,00,000/- on the basis of the said pro-note. The appellant also filed a detailed written statement denying the borrowal of the sum of Rs.4,00,000/- from the respondent's wife Mrs. Banumathi on 15.5.2006. The appellant also filed a detailed written statement denying the borrowal of the sum of Rs.4,00,000/- from the respondent's wife Mrs. Banumathi on 15.5.2006. The further claim made by the appellant shows that he did crusher business with the respondent in his own name, however, both the appellant and the respondent had invested a sum of Rs.2,50,000/- in the said business. While so, the appellant, in his written statement, has categorically admitted that he borrowed a sum of Rs.1,00,000/- on 15.5.2006 from the respondent and as the respondent's wife was running a finance business, after signing the blank pro-note, gave the same to the respondent. Again the appellant admitted in the written statement that he borrowed a sum of Rs.50,000/- on 5.6.2006. Once again on another occasion viz., on 8.7.2006, the appellant admitted in his written statement about the receipt of another Rs.50,000/-. That apart, the appellant in the very same written statement has further admitted that he borrowed a sum of Rs.2,00,000/- on 2.10.2006, for which the appellant also claimed that he paid interest at the rate of 24% per annum. But the trial Court, after considering the pros and cons of both sides, without even making any reference to the admission made by the appellant in his written statement, wrongly misdirecting itself to the non issue, dismissed the suit. Being aggrieved by the judgment and decree passed by the trial Court, when an appeal was filed, the first appellate Court, going to the admission made by the appellant in his written statement, rightly held against the appellant that when the receipt of the loan having been admitted by him, taking reliance from the judgment of this Court in the case of K.Mani v. Elumalai, 2002 (3) CTC 598 , came to the conclusion that the respondent had discharged his initial burden. In this case, as held in K.Mani's case (supra), the above approach adopted by the first appellate Court, in my considered opinion, cannot be faulted. In this case, as held in K.Mani's case (supra), the above approach adopted by the first appellate Court, in my considered opinion, cannot be faulted. Moreover, the reliance placed by the learned counsel for the respondent on the judgment of this Court in Kuppayammal's case, for the proposition that the presumption under Section 118 of the Negotiable Instruments Act would enure to the benefit of the respondent, for the reason that the appellant had miserably failed to prove that he gave only a blank pro-note, being squarely applicable to the case on hand, the impugned judgment and decree passed by the first appellate Court do not call for any interference. Moreover, it may be concluded that the appellant, who had admitted the receipt of Rs.4,00,000/-, has not proved with regard to the repayment of the loan. Secondly, the appellant, who had also admitted his signature in the pro-note, cannot go back from the execution of the pro-note. While the above two admissions are staring at the appellant, merely taking a diametrically opposite stand that he has not borrowed any money from the respondent's wife Mrs. Banumathi, in my considered opinion, cannot advance the case of the appellant to any logical end. That apart, as against the finding of facts reached by the first appellate Court on the basis of two vital admissions of the defendant, this Court does not see any substantial question of law for consideration. For all these reasons, the second appeal fails and it is dismissed. Consequently, M.P.Nos.1 of 2013 and 1 of 2014 are also dismissed. No costs.