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2014 DIGILAW 365 (MAD)

C. Krishnan v. K. S. Moorthi

2014-02-17

R.KARUPPIAH

body2014
Judgment 1. The appellant, who is the defendant in the suit filed this second appeal against the judgment and decree dated 02.04.1998 made in A.S.No.108 of 1997 on the file of Subordinate Court, Gobichettipalayam, reversing the Judgment and Decree dated 04.07.1997 made in O.S.No.148 of 1996 on the file of District Munsif Court, Gobichettipalayam. 2. For the sake of convenience, the defendant in the original suit is referred as appellant and the plaintiff in the suit is referred as respondent hereafter. 3. The respondent/plaintiff filed a suit for payment of Rs.25400/-. Briefly the case of the respondent is that on 08.09.1991, the appellant obtained a loan of Rs.20,000/- for his family expenses and executed a promissory note and agreed to pay the above said amount with interest at the rate of 12% per annum but, the appellant has not repaid the amount with interest. The respondent further stated that since the appellant is agriculturist, the respondent claimed 9% interest. Hence the suit. 4. The appellant/defendant filed a written statement in which, it is denied the above said alleged loan of Rs.20,000/- obtained from the respondent on 08.09.1991 and executed the pro-note. According to the respondent, in the year 1993 the appellant borrowed a loan of Rs.2100/- from respondent and at that time, the respondent and his father namely K.C. Senniappa Gounder obtained blank pronotes with signature of the appellant. The respondent never demanded payment nor alleged in the plaint for demand and hence, the suit is pre-matured and unsustainable. It is also averred in the written statement that the respondent requested the appellant's father to give a property nearby the respondent's property for constructing a modern rice mill building. But, the request was refused by the appellant's father. Due to the above said enmity instigated one Murugesan to abduct the appellant's minor daughter namely Sundereshwari. Therefore, the appellant has given a complaint before Police on 07.08.1993 and registered a criminal case in Crime No.344 of 1993. In view of the above said criminal case, there was enmity between the appellant and the respondent's family. Further, the appellant and his father namely Chinnappan obtained a loan of Rs.10,000/- from respondent's father Senniappa Gounder and executed a promissory note. Since notice was issued to the appellant, the appellant has paid Rs.11,800/- including interest of Rs.1800/-. In view of the above said criminal case, there was enmity between the appellant and the respondent's family. Further, the appellant and his father namely Chinnappan obtained a loan of Rs.10,000/- from respondent's father Senniappa Gounder and executed a promissory note. Since notice was issued to the appellant, the appellant has paid Rs.11,800/- including interest of Rs.1800/-. The respondent's father filed a suit in O.S.No.191 of 1994 against the appellant and his father and it is pending. The appellant has deposited Rs.2100/- with interest of Rs.399/- before Court on 09.10.1994. Further, the respondent and his father liable to deposit the three deeds before Court. Therefore, prayed for dismissal of the suit with compensatory costs. 5. The trial court has framed three issues from the above said pleadings. On the side of the respondent/plaintiff three witnesses were examined as PWs 1 to 3 and marked one document as Ex.A1 pro-note. On the side of the appellant/defendant three witnesses were examined as DWs 1 to 3 and marked fourteen documents as Exs.B1 to 14. 6. Considering the above said oral and documentary evidence adduced on either side, the trial court has rejected the contention of the appellant that the suit is not maintainable on the ground of no cause of action and premature. But, the trial court has held that the alleged pro-note Ex.A1 is not proved as genuine document and the respondent obtained signature alone from the appellant and received the blank pro-note and later created. Therefore, the respondent is not entitled to the above said amount as per Ex.A1 pro-note. 7. Aggrieved over the above said findings of the trial court, the respondent/plaintiff preferred first appeal in A.S.No.108 of 1997. The first appellate court has discussed in detail about the oral and documentary evidence adduced on either side and held that the respondent has proved the said Ex.A1-pronote, is genuine document by adducing reliable evidence and therefore, decreed the suit as prayed for in the plaint. Aggrieved over the reversal finding of the first appellate court, the appellant, who is defendant in the suit preferred this second appeal. 8. This Court has admitted the second appeal on the following substantial question of law for consideration: "Whether the suit pro-note is true, valid and supported by consideration ? " 9. Heard the learned counsel appearing on either side and perused the entire material records. 10. 8. This Court has admitted the second appeal on the following substantial question of law for consideration: "Whether the suit pro-note is true, valid and supported by consideration ? " 9. Heard the learned counsel appearing on either side and perused the entire material records. 10. The respondent filed a suit on the basis of Ex.A1 pro-note alleged to have been executed by the appellant. The appellant has admitted the signature affixed in Ex.A1 pro-note, but the contention of the appellant is that in the year March 1993, the appellant has borrowed a sum of Rs.2100/- from the respondent and at that time, the respondent and his father obtained signature from the appellant in a blank pro-note and filled up the above said blank pro-note, filed the suit and therefore, the appellant is not liable to pay the amount as pleaded in the plaint. The learned counsel appearing for the appellant also submitted that the above said amount of Rs.2100/- with interest of Rs.399/- was deposited before the trial court and therefore, not liable to pay any amount to the respondent. 11. The learned counsel for the appellant mainly pointed out that the respondent witness deposed as Ex.A1 pro-note executed at about 10 a.m. on 08.09.1991. At that time, the appellant was at work in the factory and he came out from the factory only at 2.00 p.m. and the distance between the factory and the appellant's house is about 50 or 60 Kms and it is not possible to execute the pro-note at 10 a.m. on 08.09.1991 and therefore, the above said document is a created document and not a genuine document. 12. Per contra, the learned counsel appearing for the respondent would submit that the first appellate court has discussed in detail about the oral and documentary evidence adduced on either side and correctly held that the respondent has proved the above said Ex.A1 pro-note as genuine document and hence, the appellant is liable to pay the above said amount. The learned counsel appearing for the respondent pointed out that the trial court has not properly considered the entire oral evidence of PWs 1 to 3. The learned counsel appearing for the respondent pointed out that the trial court has not properly considered the entire oral evidence of PWs 1 to 3. But, only on the ground that respondent side witnesses deposed as pro-note was executed on 08.09.1991 at about 10 a.m. but the respondent was working in the factory on 07.09.1991 from 08.02 a.m, to 08.09.1991 at 22.02 hrs., and again from 22.02 hrs., till 2.00 p.m. on 08.09.1991 and therefore, the respondent has worked in the factory from 07.09.1991 at 08.02 a.m., to 08.09.1991 at 14.00 hrs., continuously and therefore, it is not possible to execute the pro-note and the suit was dismissed. The learned counsel submitted that the above said finding is perverse finding since the trial court has not considered the entire oral and documentary evidence and also the admission of the appellant as correctly held by the first appellate court. 13. In the instant case the respondent has filed the suit on the basis of Ex.A1 pro-note. The settled principle or law is that the initial burden lies on the respondent/plaintiff to prove about the said pro-note is genuine document. In the instant case, the appellant has admitted in the written statement and also in the evidence that he had affixed the signature in the above said document Ex.A1 pro-note. On the side of the respondent, respondent himself deposed as PW1 and also examined PW2 one Palanisamy and PW3 Ramasamy to prove the document is genuine document. PW1 has clearly deposed about the loan obtained by the appellant and execution of Ex.A1 pro-note, in favour of the respondent. PW1 specifically denied the contention of the appellant that the respondent has obtained blank pro-note with signature of the appellant in the year March 1993 for obtaining loan of Rs.2100/-. Further, on the side of the respondent has examined PW2 one Palanisamy and PW3 Ramasamy, both the witnesses have clearly deposed that the appellant has obtained loan of Rs.20000/- from the respondent and executed Ex.A1 pro-note in favour of the respondent, in which, both of them affixed signatures as eye-witnesses in the document. A perusal of the above said Ex.A1 pro-note and the oral testimonies of PWs 1 to 3 clearly proved that the appellant has duly executed Ex.A1 pro-note, in favour of the respondent, after obtaining loan of Rs.20000/- as contended by the learned counsel for the respondent. 14. A perusal of the above said Ex.A1 pro-note and the oral testimonies of PWs 1 to 3 clearly proved that the appellant has duly executed Ex.A1 pro-note, in favour of the respondent, after obtaining loan of Rs.20000/- as contended by the learned counsel for the respondent. 14. In the instant case, the appellant has admitted that he signed in Ex.A1 pro-note for obtaining loan from the respondent. But, the contention of the appellant is that he borrowed a sum of Rs.2100/-, in the year March 1993 and at that time, he signed in a blank pro-note and handed over to the respondent and hence, he has not received Rs.20000/- and executed the pro-note as alleged by the respondent. 15. The main contention of the appellant is that on the date of alleged execution of Ex.A1 pro-note, he was working in a factory for a distance of 50 or 60 Kms away from his house and therefore, the above said pro-note is not a genuine document. As already stated, the respondent has discharged the initial burden of proving by examining documentary evidence of Ex.A1 and also oral evidence of PWs 1 to 3. Therefore, the burden is shifted to the appellant to prove that the above said Ex.A1 document was given as blank pro-note with signature only to the respondent. In the instant case, the respondent has deposed as DW1 and also two witnesses were examined to show that the alleged date of execution of Ex.A1 pro-note, he was working in a factory. In the written statement, the appellant has not specifically stated the alleged date of execution of Ex.A1 pro-note, he was working in a factory and therefore, it is not possible for execution on that date. DW1 has also not deposed at the time of oral evidence that he was working in factory from 07.09.1991 at 8.02 a.m. to 08.09.1991 till 14.00 Hrs. On the side of the defendant, one Palaniappan examined as DW2 and he has deposed only about conversation at the time of compromise between parties during pendency of the suit. The other witness one Manickam was examined as DW3 to prove the alleged time of pro-note, the appellant was working in a factory. A perusal of DW3 evidence revealed that he is not a competent witness to speak about the facts that the timings of work of the appellant. The other witness one Manickam was examined as DW3 to prove the alleged time of pro-note, the appellant was working in a factory. A perusal of DW3 evidence revealed that he is not a competent witness to speak about the facts that the timings of work of the appellant. From the above said evidence, further revealed that summon was issued to the concerned authority to give evidence, but, the concerned authority has not come to Court to speak about the fact but sent DW3 to give evidence. No reason was given for non-examination of concerned witness. Further, the contention of the appellant is that on 07.09.1991, at 8.00 a.m., he was started his work in his factory and he left the factory at 22.02 Hrs., but, again entered into factory immediately (i.e.,) at 22.02 hours and continuously started working upto to 14 Hrs., of next day i.e., 08.09.1991. The above said facts creates serious doubts. Further, the above said witness DW3 is neighbour of the appellant's friend. Therefore, DW3 is not an independent witness. Further, on the side of the appellant has not proved the above said document is genuine document by examining competent witness of the above said factory. Further, the respondent side witnesses have deposed before Court after several years and therefore, some discrepancies in the time execution of Ex.A1 alone cannot be taken as the document was not executed as claimed by the respondent. 16. The trial court has dismissed the suit only on the ground that at 10 a.m., the appellant was working in the factory. The trial court has not considered the fact that absolutely no evidence to prove that the appellant has borrowed only a sum of Rs.2100/- in the month of March 1993. The appellant has not even stated the date of obtaining the above said loan from the respondent. No reason has been given why, the respondent has given blank pro-note with signature alone. It is also not stated in the written statement or evidence that the witnesses had fraudulently signed in the pro-note and falsely deposed as PWs 2 and 3 before Court as against the appellant. Therefore, the findings of the trial court is not correct but, the first appellate court has correctly discussed about the oral and documentary evidence and given correct finding. 17. Therefore, the findings of the trial court is not correct but, the first appellate court has correctly discussed about the oral and documentary evidence and given correct finding. 17. From the above said discussion, the finding of the first appellate court is that the suit promissory note is true, valid and supported by consideration is correct and it is not perverse finding and there is no need to interfere with the above said findings and answered the substantial question of law accordingly. In view of the same, the decree and judgment passed by the first appellate court reversing the finding of the trial court is to be confirmed and the second appeal is to be dismissed. 18. In the result, the second appeal is dismissed with costs.