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2016 DIGILAW 4159 (MAD)

R. SENBAGADEVI v. C. SUNDARAMANI

2016-12-15

T.RAVINDRAN

body2016
JUDGMENT : T. Ravindran, J. The defendants have impugned the judgment and decree dated 15.03.2010 made in A.S.No.58/2008 on the file of the Additional District and Sessions Judge, Salem, Fast Track Court, confirming the judgment and decree dated 01.02.2008 made in O.S.No.7 of 2007 on the file of the Subordinate Court, Sankagiri in this second appeal. 2. The suit has been laid for recovery of money 3. The case of the plaintiffs, in brief, is as follows: The first defendant is the wife and the defendants 2 and 3 are the children of the deceased Ramachandran. Ramachandran died on 07.08.2005. For business activities and family expenses, on 30.03.2004 the deceased Ramachandran and his wife, the first defendant borrowed a sum of Rs. 1,00,000/- from the plaintiff and in evidence thereof, both of them executed a promissory note in favour of the plaintiff agreeing and promising to repay the debt with interest at the rate 12% per annum on demand to the plaintiff. However, they had not repaid any amount towards the debt borrowed from the plaintiff as stated above under the promissory note. On the death of Ramachandran, the first defendant and his children had inherited his estate. Therefore, the plaintiff has been necessitated to file the suit against the defendants for the recovery of the suit amount. 4. The case of the defendant, in brief, is as follows: The suit is not maintainable either in law or on facts. It is true that the first defendant is the wife of the deceased Ramachandran and the defendants 2 & 3 are his children and that Ramachandran had died on 07.08.2005. It is false to state that for family expenses and business activities, the deceased Ramachandran and the first defendant borrowed a sum of Rs.1,00,000/- from the plaintiff on 30.03.2004 under the suit promissory note agreeing to repay the same with interest at the rate of 12% per annum as claimed by the plaintiff. The deceased Ramachandran and the first defendant have not borrowed any amount from the plaintiff as stated in the plaint. The suit promissory note is a fabricated document and the alleged signature and thumb impression found on the suit promissory note are created and forged by the plaintiff. The deceased Ramachandran and the first defendant have not borrowed any amount from the plaintiff as stated in the plaint. The suit promissory note is a fabricated document and the alleged signature and thumb impression found on the suit promissory note are created and forged by the plaintiff. As either the deceased Ramachandran or the first defendant did not borrow any amount under the suit promissory note, the suit promissory note is not supported by consideration and hence, the suit is liable to be dismissed. 5. In support of the plaintiffs' case PWs1 to 4 were examined and Exs.A1 to 3 were marked. On the side of the defendant, DW1 has been examined and no document has been marked. 6. On a consideration of the oral and documentary evidence adduced by the respective parties, the trial court was pleased to decree the suit as prayed for. The first appeal preferred by the defendants came to be dismissed. Now, the defendants have preferred this second appeal, challenging the judgment and decree of the courts below. 7. The second appeal has been admitted and the following substantial question of law is formulated for consideration in this second appeal. Whether or not the defendants liable to discharge the loan borrowed by the deceased Ramachandran especially when they have not inherited any property from him and the residential house at Sankari Town in the separate property of the first defendant? 8. The suit has been laid on the promissory note. According to the plaintiff, the deceased Ramachandran and his wife viz. The first defendant borrowed a sum of Rs.1,00,000/- from him on 30.03.2004 for their business purpose and family expenses and in evidence thereof, executed the suit promissory note in favour of the plaintiff agreeing to repay the said amount with interest at the rate of 12 % per annum to the plaintiff on demand. According to the plaintiff, the deceased Ramachandran died leaving behind the first defendant and his children viz., the defendants 2 & 3 as his legal representatives. Further, according to the plaintiff, after the death of Ramachandran, as the first defendant did not pay the amount to the plaintiff, the plaintiff has been necessitated to lay the suit for recovery of amount. 9. The defendants in their written statement have disputed the genuineness and validity of the suit promissory note. Further, according to the plaintiff, after the death of Ramachandran, as the first defendant did not pay the amount to the plaintiff, the plaintiff has been necessitated to lay the suit for recovery of amount. 9. The defendants in their written statement have disputed the genuineness and validity of the suit promissory note. According to them, the suit promissory note is a fabricated document and neither the deceased Ramachandran nor the first defendant borrowed any amount under the suit promissory note as claimed in the plaint and therefore, according to the defendants, the suit is liable to be dismissed. 10. To sustain the case of the plaintiff, the plaintiff has examined himself as PW1 and the scribe of the suit promissory note marked as Exs.A1 as PW2 and one of the attestors as PW3. PWs 2 & 3 in their evidence have clearly stated that the deceased Ramachandran and his wife viz., the first defendant had borrowed the suit debt from the plaintiff and in evidence thereof, executed the suit promissory note agreeing to repay the same with interest as stipulated in the suit promissory note. That apart, the plaintiff has also tendered evidence with reference to his claim. Nothing has been culled out during the cross examination of PWs 1 and to 3 to discredit their evidence with reference to the above said aspects. As rightly found by the courts below merely on the footing that the defendants 2 & 3 are the erstwhile colleagues of the plaintiff, we cannot discard their testimony, when it is found that their testimony is otherwise reliable and convincing. Therefore, it could be seen that as rightly found by the courts below, the plaintiff through the oral and documentary evidence adduced on his behalf has clearly established that the deceased Ramachandran and the first defendant had borrowed the suit amount from him under the suit promissory note. 11. In such circumstances, it could be seen that the plaintiff having discharged the initial burden of proof as per law, the presumption can be drawn that the suit promissory note is supported by consideration and that it had been executed by the deceased Ramachandran and the first defendant as put forth in the plaint. 11. In such circumstances, it could be seen that the plaintiff having discharged the initial burden of proof as per law, the presumption can be drawn that the suit promissory note is supported by consideration and that it had been executed by the deceased Ramachandran and the first defendant as put forth in the plaint. In such circumstances, the burden is shifted on the defendants to establish that as claimed by them, the suit promissory note is not supported by consideration or the suit promissory note has been created or fabricated by the plaintiff for making unjust enrichment. However, the defendants have, as rightly found by the courts below, failed to discharge the burden of proof placed on them and in such circumstances, when the presumption that could be taken in favour of the plaintiff's case has not been dislodged in any manner by the defendants by adducing rebuttal evidence to the satisfaction of the courts below, it could be seen that no exception could be taken to the findings of the courts below that the suit promissory note is a genuine and valid document and supported by consideration. 12. The main point i.e. urged by the counsel for the defendants is that the plaintiff has not taken steps to send the suit promissory note for comparison to the expert to confirm that the signature and thumb impression found on the same are genuine. However, as rightly argued by the plaintiff counsel, when the plaintiff has initially discharged the onus of proof and when the presumption has been rightly taken by the courts below under Section 118 of the Negotiable Instrument Act, it is for the defendants to adduce evidence to rebut the presumption and in such view of the matter, nothing prevented the defendants from taking steps to have the signature and thumb impression found in the suit promissory note examined by an expert in the manner known to law. The above contention of the plaintiff's counsel seems acceptable. Therefore, it could be seen that the argument put forth by the defendants' counsel that the plaintiff has not taken steps to have the signature and thumb impression compared by an expert and therefore, the plaintiff case should fail as such cannot be accepted in any manner. 13. The above contention of the plaintiff's counsel seems acceptable. Therefore, it could be seen that the argument put forth by the defendants' counsel that the plaintiff has not taken steps to have the signature and thumb impression compared by an expert and therefore, the plaintiff case should fail as such cannot be accepted in any manner. 13. That apart, nothing has been projected by the defendants to warrant any interference in the findings of the courts below that the suit promissory note is a true and genuine document and fully supported by consideration. 14. A reading of the judgment and decree of the courts below would go to show that the courts below have passed a personal decree as against the defendants 2 & 3, who are impleaded as parties in the suit, as the LRS of the deceased Ramachandran. Therefore, as rightly argued, the courts below should not have passed a personal decree as against the defendants 2 & 3. To that extent, it could be seen that the judgment and decree of the courts below are liable to be set aside. At the most, the defendants 2 & 3 would be liable to pay the suit amount only to the extent of the property of the deceased Ramachandran, which has come to their hands and not been duly disposed of. 15. Barring the above, no other question of law is shown to be involved in this second appeal for consideration by the counsel for the defendants. The counsel for the plaintiff in support of his case, has referred to the decisions reported in AIR 1961 (1) Supreme Court 1316 (Kundan Lal Rallaram v. Custodian, Evacuee Property, Bombay), 2007 (4) CTC 122 (K.Chinnasamy v. Sivagamiammal), the judgment dated 12.11.2010 and 30.10.2014 rendered by our High Court in S.A. No. 154 of 2002 (P. Ramasamy v. K. Chinnammal) and S.A.No.228 of 2008 (P. Gnanambal v. S. Indiradevi) respectively. The Principles of Law enunciated in the above said decisions are taken into consideration and followed as applicable to the facts and circumstances of the present case. 16. The Principles of Law enunciated in the above said decisions are taken into consideration and followed as applicable to the facts and circumstances of the present case. 16. In the light of above discussions, the judgment and decree of the courts below are modified to the extent that the defendants 2 & 3 are liable to pay the suit amount only to the extent of the property of the deceased Ramachandran, which has come to their hands and has not been duly disposed of and in other aspects, the judgment and decree of the courts below are confirmed and accordingly, the second appeal is disposed of. No costs. Consequently connected miscellaneous petition is closed.