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2018 DIGILAW 279 (MAD)

Deivamani v. M. Palani

2018-01-25

PUSHPA SATHYANARAYANA

body2018
JUDGMENT : 1. This Second Appeal has been filed against the Judgment and Decree dated 31.01.2012, passed in A.S.No.56 of 2011 on the file of Subordinate Judge, Vellore, confirming the Judgment and Decree dated 07.07.2010, passed in O.S.No.395 of 2005 on the file of Principal District Judge, Vellore. 2. Aggrieved by the unanimous decisions of the Courts below, the defendant in the suit for recovery of money, based on a promissory note, has preferred the above second appeal. 3. The case of the respondent/plaintiff is that the appellant/defendant had borrowed a sum of Rs.50,000/- from him on 15.06.2003 and executed a promissory note in favour of the respondent/plaintiff agreeing to repay the same, on demand with interest. Despite repeated demands from the respondent/plaintiff, the appellant/defendant had not repaid the amount. Hence, the suit had been filed by the respondent/plaintiff. 4. Resisting the suit, the appellant/defendant had filed her written statement denying the borrowal of the said amount. It is the specific case of the appellant/defendant that the plaintiff was running a finance company and had been cheating people and she is one among the victims. However, the appellant/defendant has stated that she had signed four pronotes each for a sum of Rs.50,000/- under duress, coercion and threat of stopping her daughter's marriage for paying dowry. Thus, the appellant/defendant denied the execution of the promissory note. 5. Before the Trial Court, the respondent/plaintiff examined himself as P.W.1, and one Mr. M. Venkatraman as P.W.2, who is one of the witnesses on the pronote and Exs.A.1 to 4 were marked on his side. The appellant/defendant, apart from deposing herself as D.W.1, also examined one Mr. Chandrmouli as D.W.2, and Exs.B.1 and B.2 were marked on her side. 6. On consideration of the above documents and evidence, the Courts below had concurrently held in favour of the respondent/plaintiff. 7. As the initial burden is on the plaintiff to prove the execution of the promissory note, as stated above, the respondent/plaintiff had examined himself as P.W.1 and one M.Venkatraman, as P.W.2, who is one of the witnesses on the pronote. The said witness had specifically deposed that he had signed as Attestor on the suit pronote along with one Mr. G. Gopalakrishnan. The same was not rebutted by the appellant/defendant, by any contra evidence. 8. The said witness had specifically deposed that he had signed as Attestor on the suit pronote along with one Mr. G. Gopalakrishnan. The same was not rebutted by the appellant/defendant, by any contra evidence. 8. However, the appellant/defendant, while denying the execution of the promissory note, specifically alleged that the signature found on Ex.A.1 was not that of hers. In order to discharge the onus shifted on the appellant/defendant, she had filed I.A.No.187 of 2008 to send the suit promissory note to an expert. Though the said application was filed in the year 2008, it was finally dismissed on 17.06.2010 for default. The appellant/defendant did not care to restore the same or prefer a revision against the same. In fact, the said application itself was filed only after the commencement of trial. Therefore, having had an opportunity and also availed of the same, the appellant/defendant did not pursue further, and hence, she is estopped from contending that she was not given an opportunity to prove the signature found on the said promissory note was a forged one. In this regard, it is relevant to refer to the evidence of D.W.1, who is the appellant/defendant. She has deposed in the cross-examination as follows : “TAMIL” 9. A reading of the above would go to show that the appellant/defendant had the habit of signing differently on different occasions. Therefore, the contention of the learned counsel for the appellant/defendant that even a comparison of the signature of the appellant/defendant on the vakalat or the written statement with the signature on Ex.A.1 are different cannot be accepted. 10. The Courts below have also held that the appellant/defendant though having taken steps to send the suit pronote to an expert had abandoned the proceedings and not proceeded with it. Thus, the attitude of the appellant/defendant is that having borrowed the money, she is only delaying the repayment of the same. 11. The respondent/plaintiff, having proved the execution of the promissory note, was rightly granted the decree for repayment of money. Having found that there is no illegality in the findings of the Courts below, this Court is of the view that no interference is called for in the concurrent judgments. 12. In the result, the second appeal is dismissed and the Judgments of the Courts below are confirmed. There shall be no order as to costs.