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2020 DIGILAW 89 (MAD)

S. Suresh v. S. Mohanavel

2020-01-09

S.M.SUBRAMANIAM

body2020
JUDGMENT : S.M. SUBRAMANIAM, J. Prayer: Appeal Suit is preferred under Section 96 of the Code of Civil Procedure read with Orders 41 and 41A of the Code of Civil Procedure, against the judgment and decree dated 24.04.2015 passed in O.S. No. 76 of 2013 on the file of the learned District Judge, District Court No. II, Kancheepuram. 1. The appeal suit is directed against the judgment and decree dated 24.04.2015 passed by the learned District Judge, District Court No. II, Kancheepuram in O.S. No. 76 of 2013. 2. The appellant and the respondent in the appeal suit are the plaintiff and the defendant respectively in the suit before trial court. 3. The suit was instituted by the appellant for the recovery of money for a sum of Rs. 14,75,206/- being the principal and interest due on 13 promissory notes executed by the respondent/defendant in favour of the appellant/plaintiff on various dates. 4. It is contended that the respondent/defendant borrowed the amount for his business expenditures and agreed to repay the said principal amount with interest at the rate of 24% per annum. In spite of the repeated demand, the respondent/defendant had failed to repay the amount as well as the interest, which resulted in institution of the suit for recovery of money. 5. The respondent/defendant, in his written statement, denied the allegations as false and frivolous. The respondent/defendant denied the quantum of amount borrowed as per the suit promissory notes. The respondent/defendant states that he borrowed Rs. 5,000/- for ten times and in each and every borrowing, the appellant/plaintiff had got defendant’s signature in the blank promissory notes and further obtained the signature of the respondent/defendant for three times in the blank promissory notes stating that the promissory notes were missed by him. 6. It is contended that the respondent/defendant had not borrowed Rs. 1,00,000/- for 13 times and he had not signed in the filled promissory notes. In fact, the respondent/ defendant denied the amount borrowed and he had stated that he borrowed Rs. 5,000/- for 10 times and therefore, the suit itself is frivolous and is to be dismissed. 7. The Trial Court framed the following issues for consideration:- (i) Whether the suit promissory notes are true and valid? (ii) Whether the suit promissory notes are signed in blank as alleged by the defendant? (iii) To what relief the plaintiff is entitled to? 8. 7. The Trial Court framed the following issues for consideration:- (i) Whether the suit promissory notes are true and valid? (ii) Whether the suit promissory notes are signed in blank as alleged by the defendant? (iii) To what relief the plaintiff is entitled to? 8. On the side of the appellant/plaintiff, the plaintiff filed proof affidavit and marked Exs.A-1 to A-13 as documents and examined PW-1 as witness. No witness was examined and no documents were marked on the side of the respondent/defendant. 9. With reference to the issues (i) to (iii), the Trial Court found that the respondent/ defendant denied the quantum of amount borrowed, which is stated in the plaint. Contrarily, the respondent/defendant had admitted that he borrowed Rs. 5,000/- for ten times and in each and every borrowing that the appellant/plaintiff had got the defendant’s signature in the blank promissory notes and sometimes, the appellant/plaintiff had obtained the signature of the respondent/ defendant for three times in the blank promissory notes, stating that the promissory notes are missed by him. On every borrowing, the respondent/ defendant had deducted Rs. 400/- as interest. The respondent/defendant had signed the blank promissory notes as security. The contention of the appellant/plaintiff that the respondent/defendant had borrowed Rs. 1,00,000/- for 13 times is absolutely false. 10. The Trial Court considered the documents as well as the evidences and appreciated the evidence of PW-1 during the cross-examination. While scrutinising the available evidence on record, the cross-examination of PW-1 was considered as vital for taking decision in respect of issue Nos. (i) to (iii). During cross-examination, PW-1 had stated as follows:- “TAMIL” 11. The Trial Court found that there are no witnesses in all the promissory notes Exs.A-1 to A-13 and the scribe of the documents was also not mentioned. The said facts were admitted by the appellant/ plaintiff in his cross-examination. 12. This apart, no proper explanation was provided by the appellant/plaintiff for non issuance of pre-suit notice. A person, who instituted the civil suit, as plaintiff, must establish his case at the first instance. However, the appellant/plaintiff had admitted in his cross-examination that all the promissory notes were filled by the same person and he admitted the same. The appellant/plaintiff had not let in any evidence to counter the allegations of the respondent/defendant. 13. A person, who instituted the civil suit, as plaintiff, must establish his case at the first instance. However, the appellant/plaintiff had admitted in his cross-examination that all the promissory notes were filled by the same person and he admitted the same. The appellant/plaintiff had not let in any evidence to counter the allegations of the respondent/defendant. 13. Considering the facts and circumstances as well as the lapses noticed in the suit promissory notes, the Trial Court came to a conclusion that the case of the respondent/ defendant is to be considered. The appellant/plaintiff had not examined any of the witnesses. Thus, the Trial Court arrived a conclusion that the appellant/plaintiff had not approached the Court with clean hands and accordingly, rejected the money claim of the appellant/plaintiff. 14. During the course of hearing, this Court also provided an opportunity to the parties to the appeal suit to arrive a fair conclusion, considering the quantum of amount borrowed by the respondent/ defendant. However, the efforts are unable to be fructified in view of the fact there are contradictions in respect of quantum of the amount to be settled. The respondent/defendant, in person, also had stated that he had already paid a huge amount by way of interest and the amount stated in the plaint is incorrect. Even assuming that the said statement of the respondent/defendant is erroneous, this Court is bound to consider the documents as well as the evidences placed by the respective parties before the Trial Court. 15. The Trial Court, on examination of documents, found that there are no witnesses in all the promissory notes Exs.A-1 to A-13 and the scribe of the documents are also not mentioned. The said lapses were admitted by the appellant/plaintiff during cross-examination. No pre-suit notice was issued by the appellant/plaintiff and regarding non issuance, no convincing explanations were also furnished. 16. This being the facts and circumstances of the case established before the Trial Court, the grounds raised in the appeal suit for reversing the judgment and decree is insufficient and this Court is of an opinion that there is no perversity or infirmity, as such, regarding the findings arrived by the Trial Court. 17. Accordingly, the judgment and decree dated 24.04.2015 passed by the learned District Judge, District Court No. II, Kancheepuram in O.S. No. 76 of 2013 is confirmed and consequently, the present appeal suit is dismissed. 17. Accordingly, the judgment and decree dated 24.04.2015 passed by the learned District Judge, District Court No. II, Kancheepuram in O.S. No. 76 of 2013 is confirmed and consequently, the present appeal suit is dismissed. However, there shall be no order as to costs. Consequently, connected miscellaneous petition is also dismissed.