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2022 DIGILAW 17 (MAD)

Rabel v. E. Soundararajan

2022-01-03

V.BHAVANI SUBBAROYAN

body2022
JUDGMENT : V. BHAVANI SUBBAROYAN, J. 1. The present second appeal has been filed challenging the judgment and decree passed in A.S. No. 101 of 2018 dated 29.07.2019 on the file of the III Additional District Court, Tirunelveli confirming the judgment and decree passed in O.S. No. 160 of 2016 dated 03.08.2018 on the file of the Sub Court, Sankarankovil. 2. For the sake of convenience, the parties are referred to as, as described before the trial Court. 3. The case of the plaintiff, as per the averments made in he plaint, in short, reads as follows: On 14.12.2013, the defendant borrowed a sum of Rs. 4,00,000/- from the plaintiff for his family expenses and also executed a promissory note in favour of the plaintiff, agreeing to pay the said amount on demand with interest on the principal sum at the rate of one rupee per hundred rupee per month. After borrowing the same, the defendant failed to repay the same inspite of several requests. Therefore, the plaintiff issued a legal notice dated 22.11.2016, calling upon the plaintiff to repay the amount due, as per the promissroy note executed dated 14.12.2012. On receipt of legal notice, the defendant had issued a reply notice dated 25.11.2016 containing incorrect and false details. The averments and allegations set out in the reply notice with regard to the alleged contract of sale pertaining to the property of the defendant family is utter false. Hence, the plaintiff filed the suit for recovery of money. 4. Resisting the claim made by the plaintiff, the defendant filed written statement contenting among other-things that there is no execution of promissory note. After the death of defendant's father the plaintiff expressed his desire to purchase the property of the plaintiff's father measuring an extent of 28 cents in S.F. No. 102/2, Vagaikulam for a sale consideration of Rs. 2,50,000/-. When the defendant told the plaintiff that only after getting the release deed from his mother and sister, the sale deed can be executed. Unless and until they release it, he cannot execute sale, as it is a joint family property. Further, he has informed that it may take more than one or two year to have the sale deed executed and the plaintiff executed his willingness to pay advance amount to the defendant. Unless and until they release it, he cannot execute sale, as it is a joint family property. Further, he has informed that it may take more than one or two year to have the sale deed executed and the plaintiff executed his willingness to pay advance amount to the defendant. As the plaintiff was agreed to interest such claim the defendant was agreed to sell the property for a consideration of Rs. 2,50,000/- and the plaintiff paid a sum of Rs. 1,90,000/- as advance amount and the defendant who had received the money as a security has executed unfilled promissory note in favour of the plaintiff for which the sale deed is executed. Subsequently on 30.09.2014 the defendant's sister and mother executed a released deed and the defendant informed him to come and pay the remaining amount so that settlement deed can be executed. After receipt of entire consideration he also handed over the original documents and title to the plaintiff, but the plaintiff did not come forward to perform as per contract by paying the amount and get the sale deed executed. Since many buyers are coming the defendant insisted the plaintiff to honour the said agreement but the plaintiff was developing enmity over the defendant had fabricated the suit promissory notes with the help of his associates by utilizing the signature of the defendant found in the unfilled promissory note executed by the defendant. The defendant has not borrowed Rs. 4,00,000/- from the plaintiff through the suit promissory note. For the legal notice issued by the plaintiff the defendant has sent a suitable reply notice. The defendant is ready to repay the advance of Rs. 1,90,000/- received by him from the plaintiff and the cause of action set out in the plaint is an imaginary one, hence prays for dismissal of the suit. 5. The trial Court has framed four issues for determination of the suit, as under: (a) Whether it is true that the defendant had borrowed Rs. 4,00,000/- on 14.12.2013 from the plaintiff and executed the suit promissory note? (b) Whether it is true that the suit promissory note is a forged and fabricated document? (c) Whether the plaintiff is entitled to the suit claim? (d) To what relief the plaintiff is entitled to? 6. 4,00,000/- on 14.12.2013 from the plaintiff and executed the suit promissory note? (b) Whether it is true that the suit promissory note is a forged and fabricated document? (c) Whether the plaintiff is entitled to the suit claim? (d) To what relief the plaintiff is entitled to? 6. On the side of the plaintiff, plaintiff himself was examined as PW-1 and four documents were marked as Exs.A1 to A4 and one Peter Prabakaran was examined as PW-2. On the side of the defendant himself was examined as DW-1 and two documents were marked as Exs.B.1 and B2. 7. On analysis of the oral and documentary evidence, the Trial Court had dismissed the suit. Aggrieved by the same, the plaintiff has preferred an appeal in A.S. No. 101 of 2018, on the file of the learned III Additional District Judge, Tirunelveli. 8. The first appellate court, after considering the oral and documentary evidence of the parties, had dismissed the appeal suit. Aggrieved by the Judgment and decree passed by the first appellate Court, the present Second Appeal has been filed by the plaintiff raising various grounds. 9. The learned counsel appearing for the appellant/plaintiff would vehemently contend that the Courts below failed to consider that the defendant in his reply notice did not dispute the signature in the pro-note but taken a plea in the written statement as if with the help of his signature available in the unfilled pronote given to the plaintiff in pursuant to the sale agreement, the pronote in dispute was forged. Thus, it is very clear that the defendant has categorically admitted the signature in the pronote and has not denied the same. Further, his plea of handing over of alleged pronote in pursuant to the sale agreement is not proved by any evidence. The Courts below failed to consider that even assuming the plea of defendant that he had given the signed unfilled pronote, the plaintiff can always have liberty to fill the content as per Section 24 of Negotiable Instruments Act, 1881 and thus, it will not help the defendant in any way. The Courts below failed to consider that even assuming the plea of defendant that he had given the signed unfilled pronote, the plaintiff can always have liberty to fill the content as per Section 24 of Negotiable Instruments Act, 1881 and thus, it will not help the defendant in any way. If at all the defendant has really given the unfilled pronote, as pleaded by him towards security for the advance amount, in pursuant to the sale agreement, he would have come forward to pay the amount and cancel the agreement sale but he has not done so, which the courts below have not appreciated in proper perspective. 10. The learned counsel for the appellant relied on the Judgment of this Court in A.R. Mohammed Jalaludeen and Another vs. V.S. Dhakshinamoorthy, (2014) 8 MLJ 413 , wherein it has been held as follows: “22. Law is law. Whether we like it not, we have to take it as it is. The British invented the Negotiable Instruments Act and it authorizes execution of blank promissory notes. Actually it is intended to augment the commercial transactions. This is recognized in Section 20 of the Negotiable Instruments Act. It authorizes the holder of the instrument to fill up the blanks with amount upto the value of the stamp. This position of law has been validly taken advantage of by the learned counsel for the respondent to thrash down the plea of the appellants that they have signed in blank promissory note. 23. Their signature in Ex.A.6 has been admitted by the defendants. With regard to the passing of the consideration, evidence has been let in by the plaintiff. In such circumstance, there is no independent evidence except the evidence of D.W.1, which is not sufficient enough to rebut the presumption arising under Section 118 of the Negotiable Instruments Act. 25. Ex.B.1 letter reads the travails of a lender. There was no reference in Ex.B.1 that it has been written in connection with the promissory note debt. Ex.B.1 would not absolve the defendants from their very duty to rebut the presumption arose under Section 118 of the Negotiable Instruments Act.” 11. The learned counsel for the appellant invited the attention of this Court to the judgment of this Court in C. Sriraman vs. P. Suseela and Others, 2020 (1) MWN (Civil) 500, wherein it has been held as follows: “18. The learned counsel for the appellant invited the attention of this Court to the judgment of this Court in C. Sriraman vs. P. Suseela and Others, 2020 (1) MWN (Civil) 500, wherein it has been held as follows: “18. It is also to be pointed out that in the written statement, the first defendant has stated that the plaintiff was running a Finance Firm at Pernampet several years ago and with the help of the documents available in the said Finance Firm, the plaintiff has fabricated the suit documents and filed the false suit. So, according to the first defendant, her husband had left certain documents with the aforesaid Finance Firm and only with the help of the said documents, the suit promissory note was fabricated. In such a case, it has to be presumed that the first defendant's husband G. Pandurangan would have executed the suit promissory note. Therefore, the burden is upon the defendants that the suit promissory note was given by the deceased G. Pandurangan only in the said Finance Firm, but the defendants did not adduce any evidence to substantiate the aforesaid plea. Further, if really the said G. Pandurangan had not executed the suit promissory note in favour of the plaintiff, the first defendant would have sent a reply to Ex.A2 notice. Further, she would have entered into the witness box and subjected herself for cross examination. The aforesaid circumstances would lead to an inference that the suit promissory note was executed by the deceased G. Pandurangan, in favour of the plaintiff. Once it is proved that the suit promissory note has been executed by the deceased G. Pandurangan, as per Section 118 of the Negotiable Instruments Act, it has to be presumed that the said promissory note is supported by consideration. 19. Further, it is to be pointed out that it is not the case of the defendants that the deceased G. Pandurangan had any bad habits and he would have used the said amount for any illegal purpose. Therefore, it has to be presumed that he borrowed the amount only for the benefit of the family. Therefore, the defendants are bound to discharge the said debt from and out of the estate left by the deceased G. Pandurangan which is in their hands. Taking into consideration of all the aforesaid facts, the trial Court had rightly decreed the suit. Therefore, the defendants are bound to discharge the said debt from and out of the estate left by the deceased G. Pandurangan which is in their hands. Taking into consideration of all the aforesaid facts, the trial Court had rightly decreed the suit. Further, though the plaintiff had claimed interest at the rate of 24% till the date of the suit, the trial Court taking into consideration the transaction is not a commercial transaction, it has reduced the interest and directed the defendants to pay the interest at the rate of 12% per annum for the principal and subsequent interest at the rate of 6% per annum. But the first Appellate Court without appreciating the evidence in a proper perspective had erroneously reversed the findings of the trial Court and therefore, the Second Appeal has to be allowed. Accordingly, the substantial questions of law are answered in favour of the appellant/plaintiff.” 12. The learned counsel for the appellant drew the attention of this Court to an yet another judgment of this Court in T.K. Kulandaivelu vs. K.P. Nallusamy, 2021 (4) CTC 520 , wherein it has been held as follows: “9. In the case on hand also, the signature in the suit pro-note has been admitted. Therefore, the approach laid down in the aforesaid decision will have to be adopted. The trial Court was justified in drawing presumption under Section 118 of the Negotiable Instruments Act in favour of the plaintiff/appellant herein. The question that next arises is whether the presumption had been successfully rebutted by the defendant. The first Appellate Court had referred to a host of discrepancies found in the testimony of the witnesses for the plaintiff to come to the conclusion that the presumption had been rebutted and Ex.A1-pro-note was not established. It is true that there are contradictions in the answers given by the witnesses. In my view, they do not really go to the root of the matter. As rightly argued by the learned counsel for the appellant, the pro-note has been executed way back in the year 1994. Witnesses were examined only in March 2010. Thus, there has been a gap of almost 16 years between the date of execution of the suit pro-note and the examination of the witnesses in the Court. In view of the efflux of time, the memories are likely to fail. Witnesses were examined only in March 2010. Thus, there has been a gap of almost 16 years between the date of execution of the suit pro-note and the examination of the witnesses in the Court. In view of the efflux of time, the memories are likely to fail. The S.A. (MD) No. 54 of 2014 contradictions noted in the deposition of the witnesses by the First Appellate Court are not really material. The only way the defendant could have rebutted the presumption is to show that the plaintiff was running the chit business and that, when he had bid for the prize money, the suit pronote was taken.” 13. The learned counsel appearing for the respondent/defendant would submit that the well considered Judgments of the Courts below need not be interfered with, as there is no question of law involved in this Second Appeal and prayed for dismissal of the Second Appeal. 14. This Court paid its anxious consideration to the rival submissions made and also carefully perused the materials placed on record. 15. The case of the plaintiff is that the defendant borrowed a sum of Rs. 4,00,000/- from the plaintiff payable with interest at the rate of 1% p.a., for which, he executed Ex.A1, promissory note. Despite the plaintiff made several requests, the defendant failed to repay the amount. According to the plaintiff, when the signature and handing over of unfilled pronote is admitted by the defendant, the trial Court ought to have invoked benefits under Section 20 and 118 of Negotiable Instruments Act. But, the case of the defendant is that Ex.A1 is a fabricated one and the defendant has not admitted his signature either in the pleadings or in evidence and therefore, the plaintiff cannot be permitted to take umbrage under the provisions of Sections 20 and 118 of the Negotiable Instruments Act. 16. Ex.A4 is the reply notice sent by the defendant through his counsel in response to Ex.A2 legal notice issued by the plaintiff, calling upon the defendant to settle the amounts due on the promissory note, dated 14.12.2013. On perusal of Ex.A4 reply notice would disclose that in none of the portion the defendant admitted the signature found the suit promissory note. In fact in Ex.A4, the defendant had contended that the promissory note was tendered with signature alone not with regard to the alleged borrowing of Rs. On perusal of Ex.A4 reply notice would disclose that in none of the portion the defendant admitted the signature found the suit promissory note. In fact in Ex.A4, the defendant had contended that the promissory note was tendered with signature alone not with regard to the alleged borrowing of Rs. 4,00,000/- from the plaintiff on 14.12.2013, but as a token for having received Rs. 1,90,000/- as advance out of the sale consideration of Rs. 2,50,000/- agreed by the plaintiff to purchase the lands of the father of the defendant. Since the defendant had not admitted his signature, the contention of the plaintiff that Sections 20 and 118 of Negotiable Instruments Act have to be invoked in favour of the plaintiff cannot be countenanced. 17. During cross examination, the plaintiff deposed that the defendant brought the attestors and scribe to his house, situated at Vakaikulam and as per the dictate of the defendant, the promissory note was prepared by the scribe Subramanian with his pen. PW-2 Peter Prabhakaran, an attestor to the suit promissory note, who was examined to corroborate the evidence of the plaintiff, deposed that the defendant took him to the plaintiff's house and that the suit promissory note already prepared through computer was brought by the defendant and that he signed in the promissory note. Admittedly, Ex.A1 was prepared through computer. If really the suit promissory note had been executed by the defendant, as claimed by the plaintiff, absolutely there is no possibility of material contradictions creeping into the evidence of PW-1 and PW-2 with regard to execution of the suit promissory note. Further, admittedly, there was a civil dispute between the defendants father and PW-2, it is hard to comprehend that the defendant would have brought PW-2 for the purpose of making attestation in the suit promissory note and therefore, this Court is of the view that PW-2 is not a trustworthy witness. The trite law is that the plaintiff cannot be permitted to pick holes in the defendants case and claim to have proved his case. No doubt, the Judgments and Decrees of the Courts below are based on proper appreciation of evidence placed and proper understanding of the settled principles of law governing the provisions of Sections 20 and 118 of Negotiable Instruments Act. 18. Admittedly, the defendant received a sum of Rs. No doubt, the Judgments and Decrees of the Courts below are based on proper appreciation of evidence placed and proper understanding of the settled principles of law governing the provisions of Sections 20 and 118 of Negotiable Instruments Act. 18. Admittedly, the defendant received a sum of Rs. 1,90,000/- from the plaintiff, which he is liable to pay to the plaintiff with interest at the rate of 3% per annum from the date of suit till the date of deposit. 19. In fine, the Second Appeal is partly allowed, by directing the defendant to pay a sum of Rs. 1,90,000/- the plaintiff, with interest at the rate of 3% per annum from the date of suit till the date of deposit. Except the aforesaid modification, the Judgments and Decrees of the Courts below are hereby confirmed. No costs. Consequently connected miscellaneous petition is also closed.