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2017 DIGILAW 2849 (MAD)

Pechiammal v. M. Rajamani

2017-08-23

T.RAVINDRAN

body2017
ORDER : This civil revision petition is directed against the Judgment and Decree, dated 11.09.2006, passed in A.S.No.4 of 2006, on the file of the Subordinate Court, Aruppukkottai, confirming the Judgment and Decree, dated 05.09.2005, passed in O.S.No.267 of 2004, on the file of the District Munsif Court, Aruppukkottai. 2. The said suit has been laid by the respondent/plaintiff for recovery of money on the basis of the promissory note. 3. In brief, according to the plaintiff, the husband of the first defendant and father of the other defendants, namely, the deceased Pandi had borrowed a sum of Rs.18,000/- from him on 22.07.2003 for his family necessity and to discharge the miscellaneous debts and in evidence thereof, he had executed a promissory note agreeing to repay the same with interest as specified therein and thereafter, he died on 16.09.2003, leaving the defendants as his legal heirs and the defendants are also aware of the borrowal of the amount by the deceased Pandi from the plaintiff as pleaded and therefore, the plaintiff demanded the defendants to pay the amount, however the defendants were delaying the payment and hence, the plaintiff issued a legal notice calling upon the defendants to pay the amount and even thereafter, the defendants did not care to pay the amount and on the other hand, they attempted to alienate the properties belonged to the deceased Pandi with a view to defraud the plaintiff and hence, according to the plaintiff, the suit has come to be laid. 4. The defendants have taken a plea that the deceased Pandi did not borrow the suit amount from the plaintiff as put forth in the plaint and he did not execute the suit promissory note in evidence thereof. According to them, the suit promissory note had been created and concocted by the plaintiff for the purpose of the case. It is the further case of the defendants that the deceased Pandi was addicted to illegal habits and drinks and not looking after the family, therefore, he had been borrowing debts for immoral purpose and hence, according to the defendants, such debts are not binding upon them and hence, they are not liable to discharge the debts even if the same had been borrowed by the deceased Pandi. Further, according to the defendants, on 22.07.2003, the deceased Pandi had discharged all the debts borrowed by him on various occasions and also obtained the promissory notes from the plaintiff on the same date and therefore, there is no need for the deceased Pandi to borrow the suit amount from the plaintiff on 22.07.2003 and therefore, according to the defendants, the plaintiff is not entitled to sustain the suit and the suit is liable to be dismissed. 5. On the basis of the pleadings set out by the respective parties, the following issues were framed by the Trial Court: i. Whether the plaintiff is entitled to obtain the suit amount as prayed for? and ii. To what relief the plaintiff is entitled to? 6. In support of the plaintiff's case, P.Ws.1 and 2 were examined and Exs.A1 to A4 were marked and on the side of the defendants' D.W.1 was examined and Exs.B1 to B14 were marked. 7. The Trial Court, on a consideration of the oral and documentary evidence adduced by the respective parties, was pleased to decree the suit as prayed for holding that the suit promissory note had been executed by the deceased Pandi as put forth by the plaintiff. The appeal preferred by the defendants also ended in failure and the Appellate Court has also concurred with the findings of the Trial Court. Impugning the same, the present civil revision petition has been preferred. 8. The following points arise for consideration in this civil revision petition: i. Whether the suit promissory note is true? and ii. To what relief the revision petitioners are entitled to? POINT NO.I: 9. Inasmuch as the defendants have disputed the genuineness of the suit promissory note put forth by the plaintiff, it is found that it is only for the plaintiff to establish the same with acceptable and reliable proof. and ii. To what relief the revision petitioners are entitled to? POINT NO.I: 9. Inasmuch as the defendants have disputed the genuineness of the suit promissory note put forth by the plaintiff, it is found that it is only for the plaintiff to establish the same with acceptable and reliable proof. As regards the plea of the plaintiff that the deceased Pandi had borrowed a sum of Rs.18,000/- from him on 22.07.2003, the plaintiff himself has tendered evidence as P.W.1 and he has clearly deposed that on 22.07.2003 the deceased Pandi had approached him and borrowed a sum of Rs.18,000/- and in evidence thereof, he had executed a promissory note agreeing to repay the same with interest as specified therein and before discharging the same, he having died on 16.09.2003, the plaintiff has been necessitated to lay the suit for the recovery of the amount as against the defendants, who are the legal heirs of the deceased Pandi. Despite the cross-examination by P.W.1, as rightly determined by the Court below, nothing has been culled out by the defendants to disbelieve or discredit the evidence tendered by P.W.1 with reference to his case. It is, therefore, found that the Court below has rightly placed reliance upon the evidence of P.W.1 to hold that the plaintiff has established his case through the testimony of P.W.1. Not stopping there, the plaintiff has also chosen to examine the scribe/witness of the promissory note as P.W.2 and P.W.2/Radhakrishnan, who in his evidence has also clearly deposed that the suit promissory note had been executed by the deceased Pandi in respect of the borrowal of the sum of Rs.18,000/- from the plaintiff and it is he, who had written the suit promissory note as per the dictation of the deceased Pandi and therefore, it is found that the Courts below have rightly held that P.W.2 has corroborated the testimony of P.W.1 in all material aspects as regards the borrowal of the suit amount by the deceased Pandi from P.W.1 and the execution of the said promissory note in evidence thereof in favour of the plaintiff. As rightly held by the Courts below, even P.W.2's testimony has not been shaken or found or established to be false by the defendants through their cross-examination. As rightly held by the Courts below, even P.W.2's testimony has not been shaken or found or established to be false by the defendants through their cross-examination. Therefore, it is found that the plaintiff's case has been sustained not only through the evidence of P.W.1, but also by the corroborative evidence of P.W.2 and nothing has been attributed to P.W.2 as such to depose in favour of the plaintiff and against the defendants. 10. It is argued by the learned counsel for the defendants that P.W.2 has not testified anything about the due execution of the promissory note and passing of consideration. However, as rightly put forth by the learned counsel for the plaintiff, on a reading of the evidence of P.W.2 both chief as well as cross-examination wholly, it is found that he has deposed about the witnessing of the passing of consideration under the suit promissory note as put forth by the plaintiff and therefore, the contention put forth that P.W.2 has not seen the passing of the consideration and hence, the plaintiff's case should not be accepted as such, cannot be countenanced in any manner. 11. Before the laying of the suit, the plaintiff has also issued a pre-suit notice to the defendants. No doubt, the defendants have repudiated the contents of the notice by sending a reply. 12. It is found that as per the evidence adduced in the matter and the materials placed, the deceased Pandi had borrowed amounts from the plaintiff on earlier occasions and this could be evidenced from the admissions made by both parties and also the documents marked as Exs.B1 to B11 cumulatively. Therefore, it is found that the amounts borrowed by the deceased Pandi had been discharged by him on 22.07.2003. Placing reliance upon Exs.B1 to B11, it is argued by the learned counsel for the defendants that when the deceased Pandi had returned all the amounts borrowed from the plaintiff on 22.07.2003, there is no need for the deceased Pandi to again borrow the sum of Rs.18,000/- from the plaintiff on the same date and hence, the plaintiff's case should not be accepted. However, it is the contention of the plaintiff that inasmuch as the deceased Pandi had discharged all the amounts borrowed by him from the plaintiff earlier on 22.07.2003 and inasmuch as the deceased Pandi had again made a request to advance further sum to settle his miscellaneous debts and for family necessity, considering the above said conduct of the deceased Pandi in the payment of the earlier borrowals, it is the case of the plaintiff that the suit amount has been advanced to the deceased Pandi and therefore, no exception should be taken with reference to the same, as unnatural. The above contention of the plaintiff seems acceptable. Merely because the deceased Pandi had discharged or paid the amounts borrowed by him from the plaintiff on 22.07.2003, it cannot be held that he would not have borrowed the suit amount from the plaintiff on 22.07.2003. On the other hand, the fact remains that the deceased Pandi had borrowed the suit amount from the plaintiff on the same date as testified by P.Ws.1 and 2 in a clear and convincing manner. In such view of the matter, when the witnesses to the transaction in question have deposed about the same in a clear and sound manner and when nothing has been culled out from them to disbelieve the case of the defendants in any manner, it is found that the deceased Pandi had borrowed the suit amount as put forth by the plaintiff from him. 13. It is the defence of the defendants that the deceased Pandi was addicted to illegal habits and drinks and thereby he was not looking after the family and therefore, according to them, the debts had been borrowed by the deceased Pand only for his immoral purpose and hence, such debts are not binding upon them. It appears that the above said defence has been projected by the defendants with a view to exclude the property inherited by them from the deceased Pandi from any action that may be taken by the plaintiff in the event of the plaintiff succeeding in the suit. However, the above defence set out by the defendants is found to be false by the Courts below correctly. It is found that the defendants have lodged a complaint against the plaintiff alleging that the plaintiff has made threats to them for claiming the amount etc. However, the above defence set out by the defendants is found to be false by the Courts below correctly. It is found that the defendants have lodged a complaint against the plaintiff alleging that the plaintiff has made threats to them for claiming the amount etc. The copy of the complaint has been marked as Ex.B13. A reading of Ex.B13 would go to show that the defence projected by the defendants that the deceased Pandi was addicted to illegal habits and drinks and not looking after the family etc., is false. As rightly found by the Courts below, the defendants themselves have admitted that the earlier borrowals made by the deceased Pandi had been contracted only for the agricultural purpose and the same had been discharged by the deceased Pandi by himself by doing agricultural operations. In such view of the matter, the defence projected by the defendants that the deceased Pandi was addicted to illegal habits and thereby indiscriminately making borrowals for accomplishing his immoral purpose as such cannot be believed in any manner. Therefore, the above said defence, as rightly held by the Courts below, being made only for the purpose of the case by the defendants and therefore, it is found that the defendants had been raising false plea one way or the other to thwart the case the plaintiff. 14. As rightly determined by the Courts below particularly the Appellate Court, once the plaintiff has established his case by the adduction of the evidence of P.Ws.1 and 2 and marking the necessary documents, it is found that the plaintiff has established the genuineness of the promissory note executed by the deceased Pandi and the passing of the consideration thereunder. In such view of the matter, it is for the defendants thereafter to discharge the presumption as provided under Section 118 of N.I. Act and the defendants having not taken any effort to discharge the same and on the other hand, had examined only D.W.1, when even according to the defendants, he is not a direct witness to the transaction concerned and the documents marked on behalf of the defendants had not served any purpose as pointed out earlier and on the other hand would only go against the defence projected by the defendants as discussed above, it would only go to show that the defence of the defendants is false and unacceptable. 15. 15. Further, if according to the defendants, the deceased Pandi had not borrowed the suit amount and executed the suit promissory note in evidence thereof, the defendants owning the responsibility to discharge the burden as per law should have been taken the appropriate steps to make a comparison of the signature of the deceased Pandi or his LTI found in the suit promissory note vis-a-vis the admitted signature through an expert. Though D.W.1 has deposed that he had instructed his Advocate to send the promissory note in question for comparison with the admitted signature of the deceased Pandi for establishing the defence, it is found that no such steps have been taken by the defendants with reference to the same and this would only go to show that the defendants on the apprehension that if the above said procedure is followed, as the same would divulge the truth, as rightly argued, they have not endeavoured to do so and this would go to show that the defence set out by the defendants is false and taken with a view to resist the case of the plaintiff one way or the other. 16. In support of their contentions, both the learned counsel appearing for the revision petitioners as well as the learned counsel for the respondent placed reliance upon the decisions reported in 2005 (3) CTC 12 [P. Sood & Co. vs. Peerchand Misrimalji Bhansali] and 2014 (5) CTC 495 [Durairaj vs. Koyilmani] respectively. The principles of law outlined in the above cited decisions are taken into consideration and followed as applicable to the facts and circumstances of the case at hand. 17. In the light of the above discussions, the Courts below have rightly and properly assessed the materials placed in the matter in the correct manner both factually as well as legally and hence, the Judgments and Decrees of the Courts below do not warrant interference from this Court. I, therefore, hold that the suit promissory note is true. Accordingly, Point No.I is answered. POINT NO.II: 18. In view of the reasons given under Point No.I, the Judgment and Decree, dated 11.09.2006, passed in A.S.No.4 of 2006, on the file of the Subordinate Court, Aruppukkottai, confirming the Judgment and Decree, dated 05.09.2005, passed in O.S. No. 267 of 2004, on the file of the District Munsif Court, Aruppukkottai, are confirmed. Resultantly, the civil revision petition is dismissed with costs. Resultantly, the civil revision petition is dismissed with costs. Consequently, connected miscellaneous petition is closed.