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2014 DIGILAW 4053 (MAD)

Sundarapandian v. Muthumari

2014-10-30

P.DEVADASS

body2014
Judgment The unsuccessful defendant in O.S.No.10 of 2006 before the first appellate Court in A.S.No.2 of 2008 Additional District Judge (Fast Track Court), Ramanathapuram, is the appellant herein. 2. The second appeal arose under the following circumstances. 3. The appellant/defendant and the respondent/plaintiff are known persons. Plaintiff instituted the suit in O.S.No.10 of 2006 with the allegations that on 19.02.2003, she has advanced Rs.1,00,000/- at 18% interest under Ex.A1 to the defendant. Since no amount was paid inspite of notice under Ex.A2 document, the suit has been filed. 4. The suit has been resisted by the appellant/defendant filing a written statement contending that no amount as alleged was borrowed from the respondent/plaintiff on 19.02.2003. Actually, the defendant's wife Kaliammal on 26.04.1999 borrowed Rs.60,000/- from Muthumari and subsequently, on 30.06.1999 she borrowed Rs.40,000/- and on 21.11.2004, Kaliammal has paid Rs.1,20,600/- to the plaintiff. While the matters stood thus, on 03.12.2004, plaintiff's brother Kottai @ Muniasamy criminally intimidated Kaliammal and thereafter, Kaliammal lodged a police complaint and the police had supported the plaintiff and forcefully obtained a blank paper with the signature from defendant and his wife. 5. On these divergent pleadings necessary issues were framed. The suit was tried. The Trial Court appreciating the enormous oral and documentary evidence let in, concentrating very much on the cross-examination of P.W.1, came to the conclusion that due execution of the promissory note has not been proved and thus dismissed the suit. 6. Thereafter, the plaintiff carried the matter to the next Appellate Court/Additional District Court, Ramanathapuram, in A.S.No.2 of 2008. The learned appellate Judge reappraised the evidence and viewed the evidence from a different perspective. It take into account the legal effect and consequences of Section 118 of the Negotiable Instruments Act and Section 114 of the Evidence Act and held that the plaintiff had proved due execution of promissory note and that has resulted in arising of the legal presumptions under Section 118 of Negotiable Instruments Act, it had rejected the case of the defendant and vacated the decree and judgment of the trial Court and substituted with its own judgment and decree. 7. Now this time, the defendant was driven to this Court. That is how this second appeal is before us. 8. For the purpose of the second appeal, the then Honourable Judge framed the following substantial questions of law: "1. 7. Now this time, the defendant was driven to this Court. That is how this second appeal is before us. 8. For the purpose of the second appeal, the then Honourable Judge framed the following substantial questions of law: "1. Whether the 1st appellate Court is right in picking holes in the defendant case and decreed the suit when plaintiff has failed to prove the passing of consideration? 2. Whether the 1st appellate Court is right in allowing the appeal though defendant has rebutted the presumption under Section 118 of the Negotiable Instruments Act?" 9. The learned counsel for the appellant contended that in the facts and circumstances of the case, the learned first appellate Court Judge ought not to have raised the presumption under Section 118 of the Negotiable Instruments Act. Admission is the best form of proof. Admissions of P.W.1 in her cross probabilised the case of the appellant. P.W.1 is not certain as to the scribe of the promissory note. She confirmed the complaint given to the police and to the revenue authorities by the appellant. At various place of her deposition, she gave inconsistent answers. Her cross-examination completely thrashed down the case of the plaintiff. 10. The learned counsel for the appellant further contended that what was admitted is only signature of the defendant in Ex.A1. It is not equivalent to proof of the entire document. The version of the defendant is not that his signatures were obtained in a blank promissory note, but obtained in a blank paper. The very execution of the promissory note is disputed. In the circumstances, plaintiff has to establish that the defendant did receive consideration. In this respect, the learned counsel for the appellant cited V.S.Veerasamy and another vs. K.Subramaniam (2014 (1) MWN (Civil) 673). 11. On the other hand, the learned counsel for the respondent/plaintiff would argue on first fundamental principles relating to Negotiable Instrument Act. In view of the legal fiction and the presumption incorporated in Section 118 of the Negotiable Instruments Act and also the General Law of presumption in Section 114 of the Evidence Act, the respondent has proved due execution of Ex.A1 promissory note. Besides plaintiff P.Ws.2 and 3 also have been examined. In such circumstances, the Court is bound to raise the presumption under Section 118 of the Negotiable Instruments Act. 12. Besides plaintiff P.Ws.2 and 3 also have been examined. In such circumstances, the Court is bound to raise the presumption under Section 118 of the Negotiable Instruments Act. 12. In support of his submissions, the learned counsel for the respondent drew inspiration from the following decisions. (1) Mohameed Ali vs. Abdul Sinab(II(2001)BC 188 (2) N.S. Arumugam vs. Trishul Traders Dealers in Ferrous and non-ferrous Iron Scrap Rubbish, Contractors and two others (2006-3-L.W.451) (3) A. Meharbhan and another vs. K. Sultan Mohaideen (2011(1) MWN(Civil) 812, and (4) Ramesh Babu vs. K. Selvaraj (2012-3-L.W.527). 13. The learned counsel for the respondent would add further that inasmuch as the respondent/plaintiff has discharged the duty/onus of proving her case, there arises the duty of the defendant to rebut the said presumption by letting in proper evidence, in other words, it is his duty to cut the case of the plaintiff not by sword but by evidence. Marking of Ex.B1 and B2 has itself become suicidal to the defendant. The happenings in the police station and the assertion in connection with what had happened and the complaint/petition before the revenue authorities namely Ex.B1 and B2 all goes to show that the reception of loan and execution of promissory note, are not disputed. They were all on the aspect of usurious rate of interest being claimed. 14. The learned counsel for the respondent further contended that by his plea in the written statement now the defendant put forth his wife in the forefront and keep himself in the rear side. By the way in which the plea was set up in the written statement, the defendant's wife Kaliammal becomes a star witness. However, defendant did not examine her. Further, the learned counsel would stress the presence of signature of said Kaliammal on the attestor side column in Ex.A1 and it also probalises the case of the plaintiff and improbalise the case of the defendant. 15. In this view of the matter, the learned counsel for the respondent would support the decree and judgment of the first appellate Court. With regard to the decision of the trial Court, the learned counsel for the respondent would submit that the trial Court having concentrated too much on the cross-examination of P.W.1 missed the important legal aspects. The trial Court had gone astray and missed the main issue in proving and disproving of Ex.A1. With regard to the decision of the trial Court, the learned counsel for the respondent would submit that the trial Court having concentrated too much on the cross-examination of P.W.1 missed the important legal aspects. The trial Court had gone astray and missed the main issue in proving and disproving of Ex.A1. Further, inasmuch as D.Ws.3 and 4, who are common relatives of both sides, they spoke in evidence in support of the plaintiff's case. 16. Much train of thoughts emanated from the minds of the learned counsels at the bar. Arguments and counter arguments were advanced. We have given our deep consideration to their forcible arguments. We have perused the judgments of the Courts below and had the benefit of reading the decisions cited by both sides containing various fundamental principles of law. 17. The present suit is a simple suit based on a negotiable instrument laid up for recovery of money. The Law relating to Negotiable Instrument is century old. It is of British vantage. Certain things which are taken to be presumed has been styled as legal presumptions. Some of them are classified as conclusive proof which will not give any scope for disproving them. Certain presumptions can be shattered into pieces by relevant and acceptable evidence. This presumption is built in Section 118 of the Negotiable Instrument Act, so also under Section 114 of the Evidence Act. They are general in nature. It is considered with ordinary routine happenings and official matters. To put it simply, the legal presumptions built in Section 118 of Negotiable Instruments Act is that when once the execution of Negotiable Instrument like promissory note is proved the said presumption arises. As stated earlier, it is not a conclusive proof, but it is open to be rebutted by the person bound to rebut it. 18. In this case, the specific case pleaded by the plaintiff in her plaint is on 19.02.2003 she has advanced a loan of Rs.1,00,000/- at 18% interest p.a. to the defendant. The plaintiff Muthumari as P.W.1 has spoken to in the witness box before the trial Court about the execution of the promissory note. Besides that two attestors have also been examined and they spoke as P.Ws.2 and 3 and they have corroborated P.W.1's evidence in all material particulars and they have substantiated the evidence of P.W.1. 19. The plaintiff Muthumari as P.W.1 has spoken to in the witness box before the trial Court about the execution of the promissory note. Besides that two attestors have also been examined and they spoke as P.Ws.2 and 3 and they have corroborated P.W.1's evidence in all material particulars and they have substantiated the evidence of P.W.1. 19. The very document Ex.A1 promissory note has been produced in evidence. It is pertinent to note that prior to the institution of the suit, the plaintiff has issued Ex.A2 notice to the defendant. Of course receipt of the same was acknowledged by the defendant. However, it was not replied. These are the primary evidence let in by the plaintiff. What more evidence is expected in a suit for promissory note. This much alone is expected on the part of the plaintiff to prove the execution of the promissory note. Thereafter, there arises the legal presumption under Section 118 of the N.I. Act. It is axiomatic that the initial burden will never change, although, the onus is a shifting stand, it may act like a pendulum. But it cannot change the basic onus cast upon the parties. 20. In this case required evidence has been let in by the plaintiff. Plaintiff discharged her burden. Now arising of the legal presumption under Section 118 of Negotiable Instruments Act is the inevitable consequence. 21. Now let us see whether the defendant has discharged his burden, namely, rebutted the said presumption by relevant and acceptable evidence. 22. The main plea of the case of the defendant are in paragraph Nos.4 to 6 of his written statement, namely, total denial (para. 4), defendant is not the borrower, his wife Kaliammal is the borrower, that too relates to some old borrowings (para.5) and criminal intimidation by plaintiff's brother, forcible extraction of the signature from the defendant and his wife in a blank paper at the police station (para.6). 23. In his arguments, the learned counsel for the respondent quipped that these defences are coming for the first time after the institution of the suit and not by way of a reply from him to the plaintiff's Ex.A2 suit notice. 24. The signature in Ex.A1 has been admitted by the defendant. But, under certain circumstances under which it has been put or obtained has been pleaded by the defendant in his written statement. It is his case. 24. The signature in Ex.A1 has been admitted by the defendant. But, under certain circumstances under which it has been put or obtained has been pleaded by the defendant in his written statement. It is his case. He has to prove it. His proving of case will result in disproving of plaintiff's case and cutting the legal presumption arising under Section 118 Negotiable Instruments Act. 25. By the nature of the plea set up, the very Kaliammal becomes star witness in the defendant's case. But, he did not examine her. In the facts and circumstances and plea in the written statement she would be the most competent person to substantiate the case pleaded by her husband in his written statement. On this respect, the defendant (D.W.1) cannot be a proxy for her in the witness box. 26. The presence of signature of defendant's wife Kalaiammal at a corner in Ex.A1 Promissory note improbalises the version of the defendant that it was forcibly obtained at the police station. In this connection, it is pertinent to note the submission of the learned counsel for the respondent that if it is so, in order to validate it, Kaliammal's signature could have been very easily obtained as a joint promisee at the police station, but it is not so. 27. Ex.B1 to B4 would show that Kaliammal made complaint against the plaintiff to the Revenue Authorities that the plaintiff is demanding usurious rate of interest. So the borrowings have been accepted. But her grievance is demanding of high rate of interest. It is also an indirect admission of the case of the plaintiff. 28. The trial Court as well as the learned counsel for the appellant concentrated very much on the cross-examination of P.W.1. In her cross-examination P.W.1, a rustic woman had answered affirmatively as to the allegations linking her brother Kottai with the borrowing, she gave certain inconsistent answers as to the scribe of Ex.A1 as Kamuthi Iyer, later her brother Kottai. There were many inconsistent answers. 29. A party should prove his case by letting in relevant evidence. He cannot try to prove his case through the cross-examination of his opposite party's witness. There were many inconsistent answers. 29. A party should prove his case by letting in relevant evidence. He cannot try to prove his case through the cross-examination of his opposite party's witness. Even taking the answers given by P.W1 in her cross-examination that is not sufficient to thrash down the legal presumption arising under Section 118 of the Negotiable Instruments Act on the strength of the evidence let in by the plaintiff. 30. In his written statement, the defendant put forth an old borrowing from the plaintiff by his wife and the same was discharged long back paying huge interest. If that is so, he could have produced the old discharged promissory note. But, he did not do so. 31. The decisions cited by the learned counsel for the respondent are all relating to first fundamental principles concerning duty of the plaintiff in a promissory note case to prove his case and consequences of it, namely, arising of the legal presumption under Section 118 of N.I. Act. There is no change in this basis of law as on today. The principles contain therein applies in all force to the proved facts of this case. 32. The decision cited by the learned counsel for the appellant also laid down a principle of law. But it has no application to the facts of the present case. 33. In winding up our discussion on the respective submissions of the learned counsels, in the light of the pleadings, evidence both, oral and documentary and legal position the first appellate Court has rightly raised the legal presumption under Section 118 of the Negotiable Instruments Act in favour of the plaintiff, we agree with the view taken by the first appellate Court and the trial Court has miserably failed to appreciate the evidence in proper perspective and it had misread the evidence. Thus the substantial questions of law are answered accordingly as against the appellant. 34. At the end, this Second Appeal fails and it is dismissed as devoid of any merit. Consequently, the judgment and decree of the first appellate Court/Additional District Judge (Fast Track Judge), Ramanathapuram in A.S.No.2 of 2008, are confirmed. Inasmuch as both sides are related and in a bid to eradicate further acrimony between them, parties are left to bear their respective costs of the Second Appeal. Consequently, connected M.P.(MD) No.1 of 2009 is also dismissed.