Research › Search › Judgment

Madras High Court · body

2014 DIGILAW 4278 (MAD)

R. Pandyan v. M. Palgani

2014-11-17

P.DEVADASS

body2014
Judgment : In the Trial Court defendant won the case and in the first appellate Court plaintiff won the case. In this Court now, necessarily the defendants have become the appellants. 2. The plaintiff laid up the suit on the foot of Ex.A.1 promissory note dated 21.12.2012 for the recovery of principal and interest. The filing of the suit was preceded by issuance of Ex.A.2 notice and it was replied under Ex.A3 by the defendant. The second defendant filed written statement resisting the suit pleading that they have not executed the promissory note and the suit is due to the enmity between the both sides in connection with plaintiffs having filed the rent control petition in RCO.No.450 of 2000, as against Murugan, who is the brother of the plaintiff. 3. In the trial Court, the plaintiff examined himself as P.W.1 and the attester Sankar as P.W.2 and marked Ex.A1 to Ex.A3. The second defendant examined himself as D.W.1 and marked Ex.B1 to Ex.B8. 4. The trial Court appreciating the evidence of both entertained doubts as to the case of the plaintiff, noticed a motive between the both sides and came to the conclusion that the execution of Ex.A1 has not been proved and thus dismissed the suit. 5. The plaintiff went in appeal to the next Court/Principal District Court, Dindigul by filing A.S.No.6 of 2009, the first appellate Court viewed the matter from different perspective and reappraised the evidence and analysed the case of the plaintiff and the case of the defendants in every aspects, ultimately accepted the case of the plaintiff and rejected the case of the defendants and thus decreed the suit. 6. In the circumstances, the defendants have directed the second appeal. 7. At the time of admission of the second appeal, the then Learned Brother framed the following substantial questions of law: "Whether the conclusions reached by the first Appellate Court on the basis that the defendants have not specifically denied the execution of the suit promissory notes and their signatures therein is sustainable in law in view of the contents in Ex.A.4 para 4 and 5 of written statement and para 2 of the counter affidavit in I.A.No.65 of 2005? B) Whether the first appellate Court is correct and justified in shifting the burden of proof on the defendants merely by relying upon the interested, vague and inconsistent testimony of P.W.2 and also by ignoring the specific admissions of P.W.1? And C) Is the conclusions reached and findings rendered by the First appellate Court by misreading of pleadings and evidence in respect of the residence of first defendant and on the basis of its own assumptions of some defences which have not been putforth by the defendants, and on the basis of irrelevant facts and considerations is sustainable in law and warranting interference under S.100 Civil Procedure Code." 8. The learned counsel for the appellants/defendants contended that in the written statement there is specific denial of signatures in their promissory note, so also in their reply notice, so also in the evidence. In such circumstances, the plaintiff have to prove that the signatures in Ex.A.1 is that of the defendants. 9. It has also been contended by the learned counsel for the respondents that the plaintiff's brother Murugan is running a workshop in the property belonging to the defendants and to evict him a rent control petition has been filed and there is enmity between both sides. In such circumstances, it would be a concocted story that the defendants had borrowed and executed Ex.A.1 in favour of the plaintiff. 10. The learned counsel for the appellants would further contend that the plaintiff worked under his brother Murugan in the very same work shop. There was unholistic alliance between both the brothers to wreck their vengeance as against the defendants because they have initiated the eviction action against Murugan. 11. The learned counsel for the appellants further contended that the first defendant once for all left Dindigul, became a permanent resident of Chennai. On the alleged date of execution of Ex.A.1 he was not present in Dindigul and executed Ex.A.1. P.W.2 is a lier. He is not even able to tell the family details of plaintiff. P.W.2 is highly interested. Further, non-examination of Radhakrishnan who is also alleged to have present at the time of the execution of promissory note is fatel. 12. On the other hand, the learned counsel for the respondent/plaintiff would submit that at Dindigul first defendant joined in the execution of Ex.A.1. There are abundant evidence to show this. P.W.2 is highly interested. Further, non-examination of Radhakrishnan who is also alleged to have present at the time of the execution of promissory note is fatel. 12. On the other hand, the learned counsel for the respondent/plaintiff would submit that at Dindigul first defendant joined in the execution of Ex.A.1. There are abundant evidence to show this. The reply notice has been given by him at Dindigul. He received the lawyer notice at Dindigul. 13. The learned counsel for the respondent contended that the respondent had his work experience under his brother Murugan. Respondent is not a party to the eviction proceedings initiated against Murugan. 14. The learned counsel for the respondent contended that P.Ws.1 and 2 have deposed clearly as to the execution of promissory note and thus passing of consideration has to presumed under Section 118 Negotiable Instruments Act. 15. The learned counsel for the respondent further contended that above all there is no clear cut manifest plea in the written statement filed by the second respondent that the signature in Ex.A.1 is not of them. Further, the first defendant did not come forward to file an independent written statement or atleast jointly along with the second defendant or atleast sign in the written statement filed by the second defendant or atleast he had filed a memo adopting the written statement filed by the second defendant. 16. I have anxiously considered the rival submissions, perused the evidence on record and the judgments of the Court below. 17. The suit is based on Ex.A.1 promissory note dated 21.01.2002. 18. In BHARAT BARREL & DRUM MANUFACTURING CO., V. AMIN CHAND PAYRELAL, ( 1999 (3) SCC 35 ), it was held that the plaintiff who comes to the Court seeking recovery of money on the foot of a Negotiable Instrument viz., the promissory note must prove due execution of the promissory note. On his such proving arises the presumption under Section 118 of the Negotiable Instruments Act. It is a rebuttable presumption. It is a legal presumption. Thereupon the defendants has to disprove it. He should set up a probable defence. He should show to the Court either by direct evidence or by the circumstances of the case, record of the case the passing of consideration is improbable, doubt or illegal, in the circumstances a reasonable prudent man disbelieve passing of consideration. It is a legal presumption. Thereupon the defendants has to disprove it. He should set up a probable defence. He should show to the Court either by direct evidence or by the circumstances of the case, record of the case the passing of consideration is improbable, doubt or illegal, in the circumstances a reasonable prudent man disbelieve passing of consideration. The duty to provedue execution of promissory note is permanently fixed on the plaintiff. It will not change. It will never change. But disproving of it, is also permanently fixed on the defendant. It will also not change. Once, the defendants disproved the legal presumption, then the plaintiff has to reiterate the execution of promissory note. If the defendants fails to disprove, then the legal presumption arose under Section 118 of the Negotiable Instruments Act will remain as it is. This is the gist of the dictum of Hon'ble Apex Court in the said case. 19. Keeping this principle in our mind we will approach the instant case. 20. The specific plea in the plaint is that defendants 1 and 2, who are brothers have borrowed Rs.2,00,000/- on 21.02.2002 from the plaintiff in the presence of witnesses and they have executed Ex.A.1. This is the evidence of P.Ws.1& 2. P.W.2 Sankar deposed in extenso as to the passing of consideration, as to his attesting of Ex.A.1 and also spoken about other witnesses, who were present at the time of execution. What more is expected from the plaintiff to prove execution, he cannot do any magic. The trial Court also expected examining other witnesses such as Radhakrishnan. As per Section 134 of Evidence Act that a fact in issue has to be proved not by number of witnesses but by the quality of the evidence of witness even it may be by a sole witness. Infact there is no law that the promissory note is to be attested by the witnesses. Even in the absence of the attesting witnesses, if the plaintiff is a sole witness, if he can be believable the Court can safely record a finding as to due execution of promissory note in such circumstances the insistence upon the examination of Radhakrishnan to prove the execution of Ex.A.1 made by the trial Court is not a correct approach. 21. P.W.2 Sankar has been examined as an attester to Ex.A.1. 21. P.W.2 Sankar has been examined as an attester to Ex.A.1. He has deposed in chief as to passing of consideration. Of course, he is not able to furnish full details of the family particulars of the plaintiff. That alone is not the test to accept the veracity of his evidence. 22. Reading the pleadings in the written statement of the second defendant it is seen that it is stated that they have not executed the promissory note. They must specifically deny their signature in Ex.A.1. They must challenge that the signatures in Ex.A1 is not of them. The plea must be clear and categorical. It is a material aspect that has to be stated clearly that the signatures in Ex.A.1 is not of defendants 1 and 2. Our reading and understanding of the pleadings in the written statement shows that there is no clear cut specific denial from the defendants that the signatures in Ex.A.1 is not of them. 23. Defendants 1 and 2 are brothers. The written statement filed by the second defendant is not a joint written statement. There is no independent written statement by the first defendant. It is pertinent to note that the first defendant not at all get into the witness box. In the circumstances, the first appellate Court has rightly pointed out that the non-examination of first defendant assumes signal important in this case. 24. Now, reading the evidence of P.Ws.1 and 2 we are of the view that the execution of promissory note has been duly proved by the plaintiff. In this regard the first appellate Court correct in its approach. Now, arising of the legal presumption is the inevitable consequence under Section 118 of the Negotiable Instruments Act. 25. The plea that on the date of execution, the first defendant was not in Dindigul, but in Chennai has been taken by the second defendant in his written statement. That was not endorsed by the first defendant. Suit notice has been received by the first defendant at Dindigul and he replied to the plaintiff at Dindigul. Above all, he must come to the witness box and say that on the date of execution of Ex.A.1, he was not at all in Dindigul, but was in Chennai. But he did not do so. 26. A property belongs to the defendants. In the property, one Murugan, on rental basis conducted a workshop. Above all, he must come to the witness box and say that on the date of execution of Ex.A.1, he was not at all in Dindigul, but was in Chennai. But he did not do so. 26. A property belongs to the defendants. In the property, one Murugan, on rental basis conducted a workshop. For some specific reason, the landlords have taken eviction action against him through Court. Incidentally Murugan happened to be the brother of the plaintiff. In his cross examination, plaintiff replied that he was not working under his said brother but took work experience only from him. Plaintiff is not a party to the said eviction proceedings. Further, there are very many ways to wreck vengeance. To do so, it is hardly believable that plaintiff had chosen to full up a blank promissory note and give fake evidence before the Court. The motive attributed for the birth of Ex.A.1 is too big a bill to swallow. Thus the motive alleged did not carry to its logical end. 27. Now considering all the above aspects, we are of the view that the defendants have not rebutted the legal presumption arose under Section 118 of the Negotiable Instruments Act in favour of the plaintiff. We accept the case of the respondent/plaintiff and reject the case of appellants/defendants. We find that the first appellate Court has correctly recorded the finding based on the evidence adduced. Thus we answer the substantial questions of law as against the appellant. 28. In the result, this second appeal fails and it is dismissed. The decree and judgment of the first Appellate Court are upheld. In the circumstances, parties are left to bear their respective costs in the Second Appeal.