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2014 DIGILAW 657 (MAD)

S. Mani v. G. Ramesh Babu

2014-03-14

P.R.SHIVAKUMAR

body2014
Judgment 1. The plaintiff in the original suit O.S.No.161 of 2004 on the file of Principal District Munsif, Ambur is the appellant in the second appeal. He filed the suit for recovery of money due under two promissory notes dated 27.05.2000 and 26.06.2000, allegedly executed by the respondent herein/defendant for Rs.10,000/- and Rs.20,000/-respectively, agreeing to repay the same with an interest at the rate of 24% per annum. The suit was resisted by the respondent herein/defendant contending that the appellant herein/plaintiff was in the habit of lending money to the downtrodden and collect meter vatti/kandhu vatti; that one Saffique, who is employed along with the plaintiff in Bismillah hotel, had borrowed Rs.2,000/- from the appellant/plaintiff on daily interest basis; that on 20.07.2002 at about 7.30 p.m., the plaintiff came to the said hotel in an inebriated mood and threatened the said Saffique and even made an attempt to stab him with a knife; that the said attempt was prevented by the respondent herein/defendant by rescuing saffique and he helped the said Saffique in lodging a complaint with police and that the same infuriated the plaintiff to forge the suit promissory notes and file the false case against the respondent herein/defendant. 2. The learned trial judge framed necessary issues that were 5 in number and conducted a trial, in which three witnesses were examined as PWs.1 to 3 and two documents were marked as Exs.A1 and A2 on the side of the appellant herein/plaintiff. The respondent/defendant figured as the sole witness (DW1) on his side and marked four documents as Exs.B1 to B4. The learned trial judge (Principal District Munsif, Ambur) considered the evidence in the light of the arguments advanced on both sides and rendered a finding that the suit promissory notes were true and that the appellant/plaintiff was entitled to a decree directing the respondent herein/defendant to pay a sum of Rs.37,427/-together with future interest at the rate of 9% per annum calculated up to the date of payment. Accordingly, by a judgment and decree dated 22.3.2005, the learned trial judge decreed the suit and granted a decree as indicated above. 3. Aggrieved by the said decree of the trial court, the respondent herein/defendant preferred an appeal in A.S.No.67/2005 on the file of the lower appellate judge (Subordinate Judge, Tirupattur), Vellore District. Accordingly, by a judgment and decree dated 22.3.2005, the learned trial judge decreed the suit and granted a decree as indicated above. 3. Aggrieved by the said decree of the trial court, the respondent herein/defendant preferred an appeal in A.S.No.67/2005 on the file of the lower appellate judge (Subordinate Judge, Tirupattur), Vellore District. The learned Subordinate Judge, Tirupattur, after hearing, re-appraised the evidence and came to the conclusion that the findings of the trial court regarding the genuineness and the validity of the suit promissory notes produced as Exs.A1 and A2 were not substantiated and on the other hand, held that the said promissory notes were proved to be forged. Accordingly, the learned Subordinate Judge allowed the appeal, set aside the decree dated 22.3.2005 passed by the trial court and dismissed the original suit O.S.No.161/2004. The judgment of the appellate court was pronounced and the decree was passed on 20.12.2005. As against the said decree of the lower appellate court setting aside the judgment of the trial court, the present second appeal has been preferred on various grounds set out in the memorandum of grounds of second appeal. 4. Under Section 100 CPC, a second appeal from the judgment of the appellate court subordinate to the High Court shall lie to the High Court only on a substantial question of law. At the time of admission of the second appeal, the following question was identified and formulated to be the substantial question of law involved in the second appeal. Substantial Question of Law: "Whether the lower appellate court is right in reversing the judgment of the trial court without assigning independent reasons for not accepting the findings of the trial court?" 5. The arguments advanced on both sides are heard. The materials available on record are also perused. 6. The plaintiff in the original suit, who emerged successful before the trial court in getting a decree directing the defendant to pay the money allegedly due under the suit promissory notes, suffered a setback when the defendant took it on appeal to the lower appellate court, as the lower appellate court allowed the appeal, set aside the decree passed by the trial court and dismissed the suit. Hence the plaintiff in the original suit has knocked at the doors of this court by preferring the present second appeal. 7. Hence the plaintiff in the original suit has knocked at the doors of this court by preferring the present second appeal. 7. The simple case of the appellant herein/plaintiff is that the respondent herein/defendant borrowed a sum of Rs.10,000/- on 27.5.2000 and a further sum of Rs.20,000/- on 26.6.2000 and executed Ex.A1-promissory note for Rs.10,000/- on 27.5.2000 and Ex.A2-promissory note for Rs.20,000/-on 26.6.2000, agreeing to repay the said amount with an interest at the rate of 24% per annum and that thereafter the respondent herein/defendant failed to make payment as promised when demanded by the appellant/plaintiff. The defence case of the respondent herein/defendant is that he never borrowed any amount from the plaintiff; that the suit promissory notes were forged and that the suit came to be filed based on the forged promissory notes enraged by the act of the respondent/defendant in preventing the attempted assault made by the appellant/plaintiff on one Saffiq, a co-worker working along with the appellant/plaintiff and the assistance rendered by the respondent/defendant to the above said Saffique to lodge a complaint with the police against the appellant/plaintiff. 8. When the respondent/defendant has made a total denial of the transaction and also the execution of the suit promissory notes, the burden of proving the suit transaction and the execution of the promissory notes shall heavily lie on the appellant herein/plaintiff. In an attempt to prove the suit transaction and the execution of the suit promissory notes, namely Exs.A1 and A2, the plaintiff examined one Ragupathy as PW2 and one K.A. Vajravelu as PW3, besides the plaintiff himself figuring as PW1. The suit promissory notes alone have been produced as the documents on the side of the appellant herein/plaintiff. Not even the pre-suit notice demanding payment of the amount covered by the promissory notes and the reply notice sent by the respondent/defendant came to be produced by the appellant/plaintiff. The entire case of the appellant/plaintiff was sought to be proved relying on the parole evidence of PWs.1 to 3. 9. On the other hand, the respondent herein/defendant, stoutly denied of the transaction and execution of the promissory notes in the written statement as well as in his evidence while deposing as DW1 and produced the notice sent by the appellant/plaintiff through his counsel to the respondent/defendant and the reply caused by the respondent/defendant to be sent to the advocate of the appellant/plaintiff as Exs.B1 and B2 respectively. To prove that the said reply notice was received by the counsel for the advocate for the appellant/plaintiff, Ex.B3-acknowledgment was produced. 10. Besides the interested testimony of PW1, the plaintiff has examined one Raghupathy (PW2) as an attestor of Ex.A1-promissory note dated 27.5.2000 for Rs.10,000/-. One K.A. Vajravelu has been examined as PW3 as an attestor of Ex.A2-promissory note dated 26.6.2000 for Rs.20,000/-. However, in both the promissory notes, the names and addresses of the witnesses are not found written. Signatures of two persons are found as witnesses in Ex.A2 and three persons' signatures are found as witnesses in Ex.A1-promissory note. In both the promissory notes, the signature of the respondent/defendant is said to have been made in English. Below the signatures, date has also been noted. Peculiarly in Ex.A1-promissory note, the signature is found with suffix "B.Sc." referring to the qualification as if the respondent/defendant was a science graduate. The same is missing in the signature found in Ex.A2. 11. It is the categorical stand taken by the respondent/defendant that he used to sign only in Tamil and he never signed any document in English. As both the suit promissory notes marked as Exs.A1 and A2 contain the signatures of the respondent/defendant in English, the appellant/plaintiff could have very well produced any other document either admitted or proved by evidence to contain the signature of the respondent/defendant in English to falsify the contention of the respondent/defendant and to prove the case of the appellant/plaintiff that the suit promissory notes were executed by the respondent/defendant. The appellant/plaintiff failed to produce any such document. He has also failed to adduce reliable evidence to show that the respondent/defendant used to sigh his name in English and not in Tamil as contended by him. There is also no reliable evidence adduced on the side of the appellant/plaintiff to show that the plaintiff used to sign both in Tamil and in English. The documents filed in the court, namely Vakalat and the written statement bearing the signatures of the respondent/defendant show that the respondent/defendant signed them only in Tamil and not in English. 12. In addition, PW2, who is said to have attested Ex.A1, has stated in his evidence that the father of the respondent/defendant was known to him for about five to six years prior to his examination in the court. 12. In addition, PW2, who is said to have attested Ex.A1, has stated in his evidence that the father of the respondent/defendant was known to him for about five to six years prior to his examination in the court. In order to discredit his evidence and shake his credibility, the respondent/defendant has produced Ex.B4-death certificate of his father which shows that his father died on 2.4.1976 and the death was registered on 5.4.1976. The respondent/defendant has amply demonstrated that PW2 was giving false evidence and his testimony was not reliable. 13. According to PW1’s evidence, Ex.A1-promissory note was attested by three witnesses: 1) K.S. Ramajayam, 2) Raghu and 3) Sadhullah. In this regard, there is a vital contradiction between the evidence of PWs.1 and 2. PW1 has not spoken about the presence of the mother of the respondent/defendant at the time of alleged execution of Ex.A1-promissory note. It is also not his evidence that the mother of the respondent/defendant signed the said promissory note, either as a borrower or as an attestor. Contrary to the same, PW2 has stated in his evidence in chief-examination that the mother of the respondent herein/defendant signed as an attestor in Ex.A1-promissory note. It has also been admitted by PW2 that the appellant/plaintiff was doing money lending business and that PW3 was none other than the junior paternal uncle of the appellant/plaintiff. 14. In the light of the above said evidence, the lower appellate court, being the final court of appeal on facts, with a clear vision and re-appreciation of evidence, came to the correct conclusion that the suit promissory notes produced as Exs.A1 and A2 were not proved to be genuine and that on the other hand, the case of the respondent/defendant that he used to sign only in Tamil and since the signatures found in Exs.A1 and A2 are in English, the promissory notes, on all probabilities, would have been forged in the circumstances stated by the respondent/defendant in his written statement. By arriving at such a conclusion, the lower appellate court has rendered a correct and unassailable finding that the trial court erred in not considering the evidence in proper perspective and rendered a perverse finding regarding the proof of the suit promissory notes. By arriving at such a conclusion, the lower appellate court has rendered a correct and unassailable finding that the trial court erred in not considering the evidence in proper perspective and rendered a perverse finding regarding the proof of the suit promissory notes. The reasons assigned by the lower appellate court for arriving at a conclusion different from the one arrived at by the trial court is enough to show that the lower appellate court has assigned reasons for not accepting the findings of the trial court. As such, the question of law projected by the appellant as Substantial Question of Law has been formulated only for the purpose of getting an admission of the second appeal and the answer to the question is to be in an emphatic negative. 15. For all the reasons stated above, this court comes to the conclusion that the lower appellate court has not committed any error in reversing the judgment of the trial court and dismissing the suit filed by the appellant herein/plaintiff. There is no merit in the second appeal and the same deserves to be dismissed with exemplary cost. However, this court fixes only a sum of Rs.5,000/- as cost. In the result, the second appeal fails and the same is dismissed confirming the judgment and decree of the lower appellate court dated 20.12.2005 made in A.S.No.67 of 2005. The appellant/plaintiff shall pay a sum of Rs.5,000/-as cost to the respondent/defendant.