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2021 DIGILAW 769 (MAD)

K. Selvaraj v. K. Tamilselvan

2021-03-05

G.JAYACHANDRAN

body2021
JUDGMENT : Prayer: Appeal Suit has been filed under Section 96 of the Civil Procedure Code, 1908 against the judgment and decreed dated 09.01.2019 made in O.S.No.40 of 2011 on the file of the learned Principal District Court, Namakkal. 1. The appellant is the defendant in the suit. The suit was for recovery of money based on pronote dated 10/08/2008 for a sum of Rs.9,50,000/-. The Trial Court decreed the suit directing the defendant to pay the suit amount Rs.12,47,983/- with subsequent interest at the rate of 9% per annum for the principle amount Rs.9,50,000/- from the date of decree. 2. The case of the plaintiff is that, the defendant borowed Rs.9,50,000/- to meet out his urgent business and family expenses and promised to repay it on demand with 12% interest per annuam. Also, he executed a pronote Ex.A-1 in the presence of witnesses. In spite of several demand, the defendant failed to repay the promised amount. 3. The defendant denied the suit claim stating that the said pronote was actually signed and given to one Ramasamy during the period 1991-1998 as security for the loan, he availed from Ramasamy for his lorry transport business. He cleared the loan of Rs.30,000/- in the year 1998. When he asked Ramasamy to return the signed blank pronote, he said that it is misplaced and got mixed up with his other documents. He promised to return it as soon as he able to trace it. On trust, he left the blank pronote with Ramasamy. The father of the plaintiff and Ramasamy were working together as Teachers in the Government School at Manickampalayam. The said Ramasamy has given the original pronote to the plaintiff's father. The plaintiff is his neighbouring land owner. From him, he never borrowed money and after he joined service as School Teacher, he had no necessity to borrow money from anyone. Further, the plaintiff has no means to lend such a huge money as loan. He himself in the matrimonial proceedings initiated against him by his wife had admitted that he has no means to pay her and he himself depending on his father for his survival. So, surprised on receiving the suit summon from the Court, he met the plaintiff and enquired him, why he has filed suit against him, when he never borrowed any money from him. So, surprised on receiving the suit summon from the Court, he met the plaintiff and enquired him, why he has filed suit against him, when he never borrowed any money from him. The plaintiff admitted that he got the blank pronote from Ramasamy and had filed this suit, since he want to wreck vengeance against him for unnecessarily interfering in his family dispute with his wife. 4. Before the trial Court, the plaintiff marked the pronote as Ex.A-1 and examined one of the attesting witness to the pronote as PW-2. The defendant examined the said Ramasamy as DW-2 and marked the counter filed by the plaintiff in the M.C.No.54/2016 initiated by the wife of the plaintiff, where the plaintiff has stated that he have no wherewithal to pay maintenance to his wife. 5. The trial Court held that the contention of the defendant that the pro-note was given to Karichipalayam Ramasamy towards the loan for a sum of Rs.30,000/- obtained from him by the defendant, is not proved by the defendant and as per Section 118 of the Negotiable Instrument Act., the defendant has not proved the contrary and hence, the execution of Ex.A1-suit pro-note is presumed. 6. Learned counsel appearing for the appellant submitted that the trial Court failed to appreciate the fact and evidence properly. The burden of rebuttable under Section 118 of the Negotiable Instruments Act is the preponderance of probability. The defendant through his documentary evidence as well as his witness DW-2, has rebutted the presumption cast on him under Section 118 of the Negotiable Instruments Act. Particularly, the suit pronote-Ex.A1 proved to be given to DW-2 and not to the plaintiff. While so, it is the burden of the plaintiff to prove that it was executed in his favour for consideration mentioned in the pronote. The plaintiff had not produced any evidence to show that he gave Rs.9,50,000/- to the defendant. He had admitted that the content in the counter filed by him in M.C.No.54 of 2016 is true. The plaintiff has not proved his financial capacity to lend Rs.9,50,000/-. Having not produced any document to show that he had Rs.9,50,000/- within on 10.08.2008 and gave to the defendant, the trial Court ought not to have presumed against the defendant after discharging his burden through rebuttable evidence. 7. The plaintiff has not proved his financial capacity to lend Rs.9,50,000/-. Having not produced any document to show that he had Rs.9,50,000/- within on 10.08.2008 and gave to the defendant, the trial Court ought not to have presumed against the defendant after discharging his burden through rebuttable evidence. 7. The learned counsel appearing for the appellant, to buttress his submission regarding discharge his burden the rebuttable presumption in respect of the negotiable instrument, relied upon the following judgments: 1. Bharat Barrel & Drum Manufacturing Company v. Amin Chand Payrelal reported in (1999) 3 SCC 35 ; 2. John K. John v. Tom Varghese and another reported in (2007) 12 SCC 714 ; 3. Kumar Exports v. Sharma Carpets reported in (2009)2 SCC 513 ; 4. John K. Abraham v. Simon C. Abraham and another reported in (2014)2 SCC 236 ; 5. Basalingappa v. Mudibasappa reported in (2019) 5 SCC 418 ; 6. APS Forex Services Pvt. Ltd. v. Shakti International Fashion Linkers and others reported in 2020(2) CTC 471 ; 7. Ashok Kumar v. Ms. Latha reported in (2017) 5 MLJ 423 ; 8. P. Krishnasamy v. Delta Knit Wearables and others reported in 2011 ACD 1326 (MAD); 9. Shanthi C. Shantibhavan v. Mary Sherly and another reported in 2011 ACD 1136 (Ker) and 10. Tasneem Murshedkar mazhar v. Ramesh and another reported in 2020 SCC Online (Bom)20. 8. The learned counsel appearing for the respondent/plaintiff submitted that the loan transaction happened on 10.08.2008. The counter in M.C.No.54 of 2016 marked as Ex.B1, was filed on 12.06.2017 nearly 9 years after the suit transaction. Neither the defendant not his witness Ramasamy examined as DW-2 had explained to the Court, why the blank pronote was handed over to the father of the plaintiff. DW-2 is the Teacher by profession, in the cross examination, he admits that he knows that on discharge of the loan, the pronote has to be defaced/punched, but he has not explained, why he has given the pronote to Kalimuthu the father of the plaintiff without defacing it and why at all he gave the unfilled pronote to him. The evidence of DW-2, on scrutiny, it is noted that the subject pronote alleged to have been executed by the defendant in the year 1996 for loan of Rs.30,000/-. The evidence of DW-2, on scrutiny, it is noted that the subject pronote alleged to have been executed by the defendant in the year 1996 for loan of Rs.30,000/-. Both the defendant and the witnesses DW-1 and DW-2 say that the loan was repaid in the year 1998, but, it was misplaced. So the pronote was not returned to the defendant. All of sudden nearly after 8 years, the witnesses DW-1 and DW-2 say that the pronote was traced but not handed over to the defendant, who is the person concern, neither it was punched and defaced before giving it to a third party. DW-1 say he gave it to one Kalimuthu because he is the neighbouring land owner of the defendant. This explanation, according to the learned counsel appearing for the appellant, is a plausible explanation and this has to be considered along with the admission of the plaintiff regarding his financial capacity. 9. This Court is not able to consider the said submission as sustainable. The financial incapacity incurred 8 years after the loan transaction cannot be dated back to presume the plaintiff had no financial capacity to lend. Having accepted the execution of the pronote and the signature found in it, the presumption under Section 118 of the Negotiable Instrument Act is strongly against the defendant. The attempt made by the defendant to rebut the said presumption does not probablise leading to a plausible explanation. The reason for handing over the pronote to stranger has not been properly explained by DW-1 and DW-2. Ipse dixit explanation cannot be taken as probable explanation. Therefore, this Court finds that the judgments relied by the learned counsel appearing for the appellant, which are in respect of the cheque, will not be squarely applicable to the cases arising out of pronote, though both are treated as Negotiable Instrument. The basic different between the cheque and pronote is that the pronotes are executed for the money borrowed, whereas the cheques are executed to discharge the liability arising out of the money borrowed or otherwise. Pronote is executed to create liability contrarily, cheque is issued to discharge the liability. 10. Therefore, to start with in case of cheque the holder of the cheque is expected to prove that there was an existing debt. The presumption under law is the cheque issued to discharge the liability. Pronote is executed to create liability contrarily, cheque is issued to discharge the liability. 10. Therefore, to start with in case of cheque the holder of the cheque is expected to prove that there was an existing debt. The presumption under law is the cheque issued to discharge the liability. As far as the pronotes are concerned, the execution of pronote itself is presumption for borrowing and debt. 11. The learned counsel appearing for the respondent/plaintiff submitted that pending suit, the plaintiff filed I.A.No.128 of 2011 for attachment before judgment in respect of four items of property and recording the undertaking given by the appellant/defendant, the trial Court attached all those four items. In view of the decree passed against him, the properties are subjected to charge. Presently, the total value of all four properties is around Rs.80 lakhs and the first item property alone is worth around Rs.24 lakhs. Since he need money to meet out the marriage expense of his daughter, the application is filed to raise the attachment in sofar as that property alone. 12. In the result, this Appeal Suit is dismissed. The judgment and decree dated 09.01.2019 passed by the trial Court viz., Principal District Court, Namakkal in O.S.No.40 of 2011. It is open to the respondent/plaintiff to work out his remedy before the Execution Court. No costs. Consequently, connected Miscellaneous Petitions are closed.