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2023 DIGILAW 2468 (MAD)

S. Senniappan v. Muthulakshmi

2023-07-20

A.D.JAGADISH CHANDIRA

body2023
JUDGMENT (Prayer: Second Appeal filed under Section 100 C.P.C., against thejudgment and decree dated 28.02.2023 made in A.S.No.10 of 2016on the file of the 1st Additional District Judge, Coimbatoreconfirming the judgment and decree dated 30.11.2015 made inO.S.No.6 of 2014 on the file of the Subordinate Judge, Pollachi.) 1. Judgment and decree of the Trial Court granting the reliefof recovery of money and the concurrence thereupon by the firstappellate court are put to challenge in the present second appealby the defendant. 2. Though the Second Appeal came up for admission, on aperusal of the questions of law, which are six in number, this courtfound that the appellant has sought to raise such questions only on2factual aspects to the effect that the plaintiff has not dischargedher burden of proof with regard to execution of the suit promissorynote and that she had sufficient means to lend the money andthereby, this court feels that it is suffice to see whether the courtsbelow have considered the defence of the appellant/defendant in aproper perspective rather admitting the second appeal. 3. The case of the plaintiff is as under:- i) The defendant had borrowed a sum of Rs.3,00,000/-from the plaintiff on executing a promissory note agreeing torepay the amount with an interest of 12% per annum on herdemand. The defendant had executed the said promissory note inthe residence of the plaintiff in the presence of the scribe and witness. ii) Since the defendant had not paid any amount towardsprincipal or interest inspite of repeated demands by the plaintiff, alegal notice was sent on 1811.2013 for which the defendant hadreplied on 23.11.2013 with false allegation. The plaintiff suitablyreplied to the same on 28.11.2013. iii) Still, the defendant had not repaid the amount heborrowed and instead, he was making attempts to sell away hisonly property with an intention to defraud the plaintiff''s claim inrespect of the suit promissory note and hence, the suit has beenof a sum of Rs.3,00,000/- with interest at 12%per annum. 4. A written statement was filed by the defendant raisingthe following contentions:- i) The defendant neither borrowed any money from theplaintiff nor executed any promissory note in her favour. ii) The legal notice sent by the plaintiff was suitablyreplied. iii) It is incorrect to say that the defendant is attemptingto sell away the property belonging to him to defraud the plaintiff''sclaim in respect of the suit promissory note. ii) The legal notice sent by the plaintiff was suitablyreplied. iii) It is incorrect to say that the defendant is attemptingto sell away the property belonging to him to defraud the plaintiff''sclaim in respect of the suit promissory note. In fact, the said wasconstructed with the permission of the State Government and itsaid for constructing green house with solar energy. iv) To develop the said house, the defendant had borrowedsome amount from Guhan Enterprises at Pollachi-Palakkad roadand in that process, the Proprietor of the said firm viz., oneMr.Guhan had obtained the title deed in respect of the propertyand signed but, unfilled papers and stamp papers and thereuponpaid the loan amount, which was also duly repaid by thedefendant, but, when the defendant demanded for return of suchdocuments, he was redirected to one Manikandan, who happenedto be a broker of the said firm and guarantor for the said loanby contending that the documents had been entrusted tohim. The said Manikandan is none other than the son of theplaintiff. v) The above documents had been fabricated as if theyhad been executed in favour of the plaintiff, mother of the saidManikandan. The plaintiff had lodged a complaint with the PollachiPolice Station against the plaintiff in respect of the fraudulent actcommitted by her whereupon, the plaintiff, after enquiring theparties, had advised the defendant to approach appropriate courtfor her remedy and hence, she had filed a suit in O.S.No.10 of2014 before the Trial Court. vi) The Proprietor of Guhan Enterprises viz., Guhan is anecessary party to the suit. vii) The defendant has to prove the execution of the suitpromissory note. Since the defendant had not borrowed anymoney from the plaintiff nor executed any promissory note, he isnot liable to pay any money to the plaintiff and the suit is liable tobe dismissed. 5. On the above pleadings, the Trial Court framed thefollowing issues: i) Whether the plaintiff is entitled to the relief claimed for? ii) Whether the promissory note and the consideration is iii) To what other reliefs the plaintiff is entitled to? 6. Before the Trial Court, the plaintiff had examinedhimself as PW1 and examined one Sivakumar as PW2 and marked8 documents Exs.A1 to A8. On the side of the defendant, thedefendant had examined himself as DW1 and examined oneSenthilkumar as DW2 and marked 5 documents as Exs.B1 to B5. 7. 6. Before the Trial Court, the plaintiff had examinedhimself as PW1 and examined one Sivakumar as PW2 and marked8 documents Exs.A1 to A8. On the side of the defendant, thedefendant had examined himself as DW1 and examined oneSenthilkumar as DW2 and marked 5 documents as Exs.B1 to B5. 7. On considering the oral and documentary evidence, theTrial Court had decreed the suit for recovery of money. Onexamination of the entire materials and the judgment of the TrialCourt, the first Appellate Court concurred with the finding of theTrial Court. Aggrieved against the same, the defendant has comeup with the present Second Appeal. 8. Heard the learned counsel appearing for the appellantand perused the judgments of the courts below in the light of thequestions of law raised by the Appellant. 9. The suit filed by the plaintiff is for recovery of money,which, according to her, was lent to the defendant on the suitpromissory note, whereas, the defendant denies the entiretransaction of borrowal and execution of the promissory note itself.Sofar as the promissory note is concerned, he pleads that theplaintiff has not proved the execution of the suit promissory noteand in fact, it is a fabricated one in favour of the plaintiff using theblank papers and stamp papers signed by him and entrusted toGuhan Enterprises in lieu of the financial assistance he hadavailed, which also, he had repaid, but, he faced with somedifficulties in getting back the signed and blank papers and stamppapers. He also takes a stand as if the plaintiff had no means tolend any money to the defendant. 10. Therefore, the defence taken by the defendant is twofold, one being execution of the promissory note and the otherbeing the financial means of the plaintiff to lend money. 11. Sofar as the financial means of the plaintiff isconcerned, the Trial Court has rightly observed that the plaintiff,by producing certified copies of sale deeds standing in her nameviz., Exs.A7 and A8 dated 16.9.2004 an 6.11.2013. Therefore, theonly aspect which needs to be considered is execution part. 12. With regard to execution of the suit promissory note,the Trial Court has observed that the second witness to thepromissory note has been examined as PW2, who has clearlyspoken about the execution of the suit promissory note. 13. Therefore, theonly aspect which needs to be considered is execution part. 12. With regard to execution of the suit promissory note,the Trial Court has observed that the second witness to thepromissory note has been examined as PW2, who has clearlyspoken about the execution of the suit promissory note. 13. It is also relevant to note that the Trial Court had alsotraversed into the evidence of the defendant and found out thediscrepancies and conflicting stand taken by the defendant. It isseen that the defendant, on one hand, takes a stand as if thesignature found in the suit promissory note is not the one made byhim and on the other hand, he takes a stand as if he had availedfinancial assistance from Guhan Enterprises for development of hishouse and even after repayment of the loan amount, he was notgiven back the signed and blank documents handed over by him tothe said Firm and a broker of the said Firm, by name Manikandan,being the son of the plaintiff, misused such blank documents whenthey were returned by the Firm through him, by filling up thecontents as if the defendant had borrowed money from theplaintiff, who is none but, his mother. It is still worse that hetakes a third stand as if the promissory note he handed over toGuhan Enterprises was torn by them, which is in totallycontradictory to his second stand. 14. Similarly, it appears that the defendant, in hisevidence, contends that it was the first time, he saw the suitpromissory note in the court whereas the notices exchangedbetween the plaintiff and the defendant reveals that he hadalready seen the suit promissory note. Considering the abovecontradictions, the Trial Court has rightly observed that the onlymotive of the defendant is to somehow escape from the clutches ofliability and thereby, he goes on denying his signature in every document. 15. It is also relevant to note that if at all the contention ofthe defendant is true, he ought to have produced some proof forhaving availed the financial assistance from Guhan Enterprises,payment of interest to the firm and the repayment of the loanamount. The defendant has not chosen to do so. In fact, thedefendant has not even whispered in his written statement as tohow much he had borrowed from the said Firm and on what datehe had borrowed and when he had repaid. 16. The defendant has not chosen to do so. In fact, thedefendant has not even whispered in his written statement as tohow much he had borrowed from the said Firm and on what datehe had borrowed and when he had repaid. 16. All the above aspects have been reconsidered by thefirst appellate court to arrive at a conclusion that the plaintiff hasproved his case of lending money to the defendant on execution ofthe suit promissory note and non repayment of the same by thedefendant whereas, the defendant was not able to prove any of hiscontentions taken to avoid his liability 17. Except producing copies of reply notice,acknowledgment thereon, the reply notice issued by the plaintiffand a copy of the complaint submitted to CM cell, the defendanthas not chosen to produce even a scrap of paper to prove hispeculiar defence that he had availed loan from a financier and thedocuments handed over to such financier had been misused by theplaintiff to fabricate the suit promissory note rather, he hasintended to make a distraction as if the plaintiff has not proved theexecution of the suit promissory note by denying the signaturefound therein is not one made by him. 18. As rightly observed by the courts below, the plaintiffhas proved the execution of the suit promissory note byexamining PW2 the second witness to the document, whereas thedefendant denies his signature in the suit promissory note at onestretch and subsequently, he comes out with another story ofavailing financial assistance from a financier and misuse of thepromissory note given in lieu of that loan by a broker of that firm.Later, he comes out with a third version that such a promissorynote was torn by them. However, the defendant, who hasmuddled himself, has not proved any of his above contentions. 19. Therefore, it is clear that on re-appreciating the entireoral and documentary evidence, the first appellate court hadconcurred with the findings of the Trial Court both on facts and inlaw and rightly confirmed the judgment and decree of the TrialCourt granting the relief of recovery of money. 20. Having carefully analysed the materials available onrecord including the judgments of both the courts, this court is ofthe view that no substantial question of law is involved in theappeal requiring admission. 21. The Hon''ble Apex Court in Kirpa Ram (D) Tr.Lrs.vs SurenderDeo Gaur (2020 SccOnLine SC 935) hascategorically held as under:- "23. 20. Having carefully analysed the materials available onrecord including the judgments of both the courts, this court is ofthe view that no substantial question of law is involved in theappeal requiring admission. 21. The Hon''ble Apex Court in Kirpa Ram (D) Tr.Lrs.vs SurenderDeo Gaur (2020 SccOnLine SC 935) hascategorically held as under:- "23. Sub-section (1) of Section 100 of the Codecontemplates that an appeal shall lie to the HighCourt if it is satisfied that the case involves asubstantial question of law. The substantialquestion of law is required to be precisely statedin the memorandum of appeal. If the High Courtis satisfied that such substantial question of lawis involved, it is required to formulate thatquestion. The appeal has to be heard on thequestion so formulated. However, the Court hasthe power to hear appeal on any othersubstantial question of law on satisfaction of theconditions laid down in the proviso of Section100 of the Code. Therefore, if the substantialquestion of law framed by the appellants arefound to be arising in the case, only then theHigh Court is required to formulate the same forconsideration. If no such question arises, it is notnecessary for the High Court to frame anysubstantial question of law. The formulation ofsubstantial question of law or re- formulation ofthe same in terms of the proviso arises only ifthere are some questions of law and not in theabsence of any substantial question of law. TheHigh Court is not obliged to frame substantialquestion of law, in case, it finds no error in thefindings recorded by the First Appellate Court." 22. In view of the above, in the absence of anysubstantial question of law, the Second Appeal fails and is,accordingly, dismissed without being admitted. No costs. Theconnected Miscellaneous Petition is closed.