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2021 DIGILAW 1393 (MAD)

M. Amala Xavier v. A. Periyanayagam

2021-04-20

G.R.SWAMINATHAN

body2021
JUDGMENT : The unsuccessful defendant is the appellant in this second appeal. The plaintiff/Periyanayakam filed O.S.No.442 of 2003 on the file of the Sub Court, Karur for recovering a sum of Rs.1,29,850/- with interest from the appellant herein. 2. The case of the plaintiff is that on 05.11.2000, the defendant borrowed a sum of Rs.97,000/- from her and executed the suit pro-note Ex.A.1. Since even after repeated demands, the amount was not repaid, the suit came to be laid. 3. The case of the defendant was that the son of the plaintiff Thiru. Amalraj and the defendant were known to each other for quite a few years and that there were financial transactions between them. A complaint was given by the husband of the plaintiff before the Economic Offences Wing, Sivagangai and a compromise was also arrived at in the police station. The defendant would state that certain amounts were paid. Thereafter, one more complaint was given before the Economic Offences Wing, Madurai. The defendant was made to pay a sum of Rs.60,000/- to the son of the plaintiff who also issued receipt dated 04.11.2000 in full quit. After receiving the sum of Rs.60,000/-, in order to close the case against the defendant, the plaintiff's son Amalraj as well as the plaintiff's husband Antony gave two separate letters addressed to the Inspector of Police, Economic Offences Wing, Sivagangai. The promissory note dated 05.11.2000 was coercively obtained from the defendant in the name of the plaintiff for a sum of Rs.97,000/-. According to the defendant, there was no passing of consideration in respect of the suit pronote. He denied that there was also any borrowal on 05.11.2000. 4. The learned trial Judge framed the issue as to whether the suit pronote was a fabricated document and whether the plaintiff was entitled to receive the suit amount from the defendant. The plaintiff examined herself as witness and marked the suit pro-note Ex.A.1. The defendant examined himself as D.W. 1. One Ashokan, the Inspector of Police, EOW Madurai, was examined as D.W.2 and through him, Court exhibit X1 was marked. Through D.W.1, Ex.B1 to Ex.B8 were marked. The learned trial Judge, by the Judgment dated 20.02.2007, decreed the suit as prayed for. Aggrieved by the same, the defendant filed A.S.No.41 of 2007 before the District Court, karur. By Judgment and Decree, dated 11.03.2008, the appeal was dismissed. Through D.W.1, Ex.B1 to Ex.B8 were marked. The learned trial Judge, by the Judgment dated 20.02.2007, decreed the suit as prayed for. Aggrieved by the same, the defendant filed A.S.No.41 of 2007 before the District Court, karur. By Judgment and Decree, dated 11.03.2008, the appeal was dismissed. Challenging the same, this second appeal was filed. The second appeal was admitted on the following substantial questions of law:- (1) Whether the suit pro-note is supported by consideration? (2) Whether the suit pro-note had been executed in the manner narrated in the plaint ? 5. Heard the learned counsel on either side. 6. The learned counsel appearing for the appellant took me through the grounds set out in the memorandum of grounds and submitted that the defendant had effectively rebutted the presumption raised against him under Section 118 of Negotiable Instruments Act. He contended that the version projected by the plaintiff was inherently improbable. He wanted this Court to reverse the Judgment of the Courts below by answering the substantial questions of law in his favour. 7. Per contra, the learned counsel appearing for the respondent submitted that though the second appeal has been admitted and the substantial questions of law has been framed, in effect, the appellant is only canvassing a question of fact. The suit was laid on the strength of Ex.A.1. The case of the defendant was that it was not a genuine document. The Courts below have concurrently found that Ex.A.1-pro-note is a genuine document. Exercising jurisdiction under Section 100 of C.P.C., this Court ought not to interfere with such a concurrent finding of the fact. He would point out that Ex.A.1-pro-note was admittedly signed by the defendant. The execution of the suit pro-note is beyond dispute. In fact, he would also state that the body of the pro-note was also filled up only by the defendant. In the written statement, the defence taken by the defendant was that the suit pro-note was coercively obtained in the presence of the Inspector of Police, EOW, Madurai, before whom the second complaint was filed by the plaintiff's husband and son. However, while testifying before the Court, the defendant had come up with a version that compromise talks were held before the Bishop of Sivagangai and that the pronote was executed in his presence more as a matter of assurance. However, while testifying before the Court, the defendant had come up with a version that compromise talks were held before the Bishop of Sivagangai and that the pronote was executed in his presence more as a matter of assurance. The version projected during evidence is not anchored on any pleading in the written statement. 8. The learned counsel for the respondent would point out that no Court will look into any amount of evidence, if there is no corresponding pleading. When the appellant has come up with inconsistent versions, the appeal deserves to be dismissed. 9. I carefully considered the contentions and went through the evidence on record. It is true that Ex.A.1 was admittedly signed by the defendant Amala Xavier. It appears to have been filled up in his hand writing. The case of the plaintiff is that Amala Xavier came to her house on 05.11.2000 and borrowed a sum of Rs.97,000/- on the strength of the suit pro-note. Since the signature in the pro-note is admitted, the Courts below did not commit any error in drawing the presumption under Section 118 of the Negotiable Instruments Act. But the question that arises for consideration is whether the defendant has rebutted the said presumption and whether the plaintiff's version as regards the execution of the pro-note is probable. The defendant had examined not only himself, but also one Ashokan, the Inspector of Police, EOW, Madurai. Through D.W.2, the Court exhibit X1 was marked. Court Ex.X1 is the case file pertaining to the complaint lodged by Antony-husband of the plaintiff herein. Of-course, when the exhibits were sought to be marked, objection was raised against marking. The Court Exhibit X1 contains the enquiry report of the Inspector of Police, EOW, Madurai on the complaint given by Antony- husband of the plaintiff. Since the enquiry report was marked only through successor-in-office, no exception can be taken for marking the said document as court exhibit. 10. D.W.2 was cross examined. There is no challenge to the contents of the enquiry report. From the enquiry report, one can infer that the plaintiff's husband Antony had given a complaint against the defendant Amala Xavier. The substance of the allegation is that Amala Xavier's family had run a financial establishment in the name of 'Vimala Finance' and that in the said establishment, Antony's family had invested to the tune of Rs.3,50,000/-. From the enquiry report, one can infer that the plaintiff's husband Antony had given a complaint against the defendant Amala Xavier. The substance of the allegation is that Amala Xavier's family had run a financial establishment in the name of 'Vimala Finance' and that in the said establishment, Antony's family had invested to the tune of Rs.3,50,000/-. Since Amala Xavier did not return the amount, the said complaint came to be laid. The conclusion of the report is quite significant. It is stated that the an earlier complaint was given before the Inspector of Police, EOW, Sivagangai and an amicable settlement was already arrived at and that the plaintiff had also taken back the complaints. It is further stated that no co-operation was extended by the complainant Antony. It was recommended that the matter could be closed. From this, one can conclude that there was financial transaction between the plaintiff's husband as well as the son on the one hand and the defendant on the other. There is no doubt that the defendant had defaulted in the matter of repayment. That led to lodging of more than one police complaint. The defendant would claim that the entire issue was amicably resolved by 04.11.2000 itself. That may or may not be true. But the defendant had convincingly established that all was not well between the plaintiff's family and the defendant in view of the past transactions. 11. Now the question is whether in such a background, the defendant would have gone to the house of the plaintiff on 05.11.2000 and whether the plaintiff would have lent a sum of Rs.97,000/-. It stretches one's credibility. When the plaintiff's husband and her son have lost heavily to the tune of Rs.3,00,000/- by investing in the defendant's financial establishment, it is improbable that the plaintiff would have advanced a further sum of Rs.97,000/- on 05.11.2000. The defendant by examining himself and Ashokan-the Inspector of Police, EOW, Madurai and marking Ex.A1-document, has convincingly rebutted the presumption drawn against him under Section 118 of the Negotiable Instruments Act. The plaintiff has not projected the true facts in her plaint. She may have a moral case against the defendant but she has not approache the Court on any real cause of action. What has been set out in the plaint is clearly false. The suit pro-note was not supported by any consideration. 12. The plaintiff has not projected the true facts in her plaint. She may have a moral case against the defendant but she has not approache the Court on any real cause of action. What has been set out in the plaint is clearly false. The suit pro-note was not supported by any consideration. 12. I answer the substantial questions of law in favour of the appellant. The impugned Judgments are set aside and the second appeal is allowed. No costs.