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2025 DIGILAW 1846 (MAD)

J. Kathiresan v. M. N. Balamurugan

2025-04-02

V.SIVAGNANAM

body2025
JUDGMENT : Aggrieved over the Judgement and Decree dated 23.11.2016 passed in O.S.No.186 of 2009 by the 1 st Additional District Judge, Salem, the defendant has preferred the appeal suit. 2. For the sake of convenience, the parties are referred to as per their rankings in the trial Court. 3. Suit for recovery of money. 4. The defendant in O.S.No.186 of 2009 on the file of the 1 st Additional District Court, Salem, is the appellant herein and the plaintiff is the respondent herein. 5. The plaintiff's case is as follows: The defendant borrowed a sum of Rs.20,00,000/- (Twenty lakhs only) for his gold business from the plaintiff on 30.08.2008 agreeing to repay the same on demand with interest at 18% per annum to the plaintiff. The defendant executed an on – demand note in the presence of witnesses on the same date. Thereafter, the defendant had not paid any amount either towards interest or principal in spite of repeated demands. 5.1.While so, on 30.11.2008, when the plaintiff approached the defendant requesting payment and warned him of further action if the amounts are not paid, the defendant with a view to defeat and defraud the claim of the plaintiff, sent a letter on 03.12.2008 to the plaintiff and the witnesses in the pro – note viz., Vivekanandan as though the defendant and his brothers signed blank twenty rupees papers and a blank green sheet on 23.3.2001 as security for the gold received. In reply, the plaintiff sent a letter on 30.12.2008 stating the real facts. Immediately thereafter, the defendant sent an advocate notice on 31.12.2008 as though they have not executed the pro-note. The plaintiff sent a reply notice calling upon the defendant to pay the amount on 5.1.2009 along with a Xerox copy of the pro-note, as requested by the defendant. As the defendant is thus committing fraudulent acts in order to cheat and defraud the claim of the plaintiff, the plaintiff has no other go, but to file the suit for recovery of the amounts and thus, plead to decree the suit. 6. As the defendant is thus committing fraudulent acts in order to cheat and defraud the claim of the plaintiff, the plaintiff has no other go, but to file the suit for recovery of the amounts and thus, plead to decree the suit. 6. The defendant filed a written statement and denied all the allegations contained in the plaint and contended that it is utterly false to say that the defendant borrowed a sum of Rs.20,00,000/- on 30.08.2008 and this defendant agreeing to repay the same with interest at the rate of 18% p.a. and it is imagination to say that the defendant had executed a suit pronote, for the said consideration received in the presence of witnesses. The defendant never executed any suit pronote and he never borrowed any amount. The plaintiff gave the total weight grames of Gold to the defendant because he is a goldsmith and manufacturing new ornaments, and he received necessary charges and handed over all the ornaments to the plaintiff. On the basis, when the plaintiff gave gold grames net weight, he received empty N.J.S. Stamp papers, blank pronotes, green sheets with the defendant's signature. As per the above transactions, the defendant completed his work and handed over all the ornaments and asked his empty stamp papers with signature, empty pronote with signature, but the plaintiff never return the above papers, hence this defendant has filed a suit for the relief of mandatory injunction to return the entire documents in O.S.No.1312/2008 and the same is dismissed. The suit is barred by Limitation Act and the plaintiff is not entitled to get any relief on the basis of created fabricated blank pronote and the Non judicial Stamp paper. So, the suit is absolutely barred by limitation Act and thus, pleaded to dismiss the suit. 7. The trial Court, upon the above pleadings, framed the following issues for consideration; 8.Before the trial Court, the plaintiff examined himself as PW1 and filed 7 documents as Exs.A1 to A7. The defendant examined himself as DW1 and no documents were marked. 9.The trial Court, upon considering the oral and documentary evidence on record, decreed the suit as prayed for by the plaintiff with specific interest at 6% from the date of filing of the suit till the date of receipt of the suit amount with costs. Aggrieved by this, the defendant filed this appeal suit before this Court. 10. 9.The trial Court, upon considering the oral and documentary evidence on record, decreed the suit as prayed for by the plaintiff with specific interest at 6% from the date of filing of the suit till the date of receipt of the suit amount with costs. Aggrieved by this, the defendant filed this appeal suit before this Court. 10. The points for consideration before this Court are, i. Whether the promissory note dated 30.08.2002 is to valid and enforceable? ii. Whether the plaintiff is entitled to the amount claimed in the plaint? iii. To what relief? 11. The learned counsel for the appellant/defendant submitted that the judgement of the trial Court is against law and weight of evidence and probabilities of the case and contended that the trial Court has failed to appreciate that the plaintiff has to basically prove the pronote for invoking the presumptions under Section 20 and 118(c) of the Negotiable Instruments Act and failed to consider the Non-examination of the either the attestor of the pronote or the scribe of the pronote to ascertain the genuineness of the pronote. 11.1. Further, the learned counsel for the defendant contended that the trial Court has failed to consider the non-production of the accounts of the plaintiff or even the income Tax return particularly the loan amount is alleged to be Rs.20,00,000/- and failed to appreciate the genuineness of the loan amount of Rs.20,00,000/- particularly the plaintiff himself admits in his evidence that the defendant is only a labour. Further, the Trial Court has failed to appreciate the evidence of PW1 in the light of previous suit in O.S.No.1312 of 2008 filed against the plaintiff and the attesting witness of the pronote and the execution of the pronote is not proved when the appellant/defendant has specifically denied the execution of the Pronote is not legally proved particularly. The trial Court has failed to consider that when the execution of the pronote is specifically denied, no scientific proof is adduced to prove the execution of the pronote and erroneously considered the admission of the signature in blank pronotes for security purposes alone amounts to valid execution of the pronote and thus, pleaded that the judgment and decree of the trial Court is to be set aside and the appeal suit is to be allowed. 12. 12. The learned counsel for the respondent/plaintiff supported the judgment and decree of the trial Court and contended that the defendant himself admitted his signature in the disputed promissory note and sent notice to one of the attesting witnesses viz., V.Vivekanandan which is evidenced before the Court in Ex.A2. Under these circumstances, the trial Court rightly decreed the suit and the promissory note is not barred by limitation. There is no valid ground for interference and no merit in the appeal and thus, pleaded to dismiss the appeal suit. 13. I have considered the matter in the light of the submissions made on either side and perused the materials available on record. 14. On perusal of the records and evidence, the fact reveals that the defendant is a Gold Smith manufacturing Gold ornaments. The plaintiff is carrying on business in the name and style Monisha Jewellers. The plaintiff gave Gold for manufacturing new ornaments to the defendant and received necessary charges and handed over the ornaments to the plaintiff. This transaction between the plaintiff and the defendant is admitted by the parties and not disputed. 15. According to the plaintiff, the defendant borrowed a sum of Rs.20,00,000/- for his Gold business from the plaintiff on 30.08.2008 agreeing to repay the same on demand with interest at 18% per annum to the plaintiff. For the purpose, the defendant had executed a promissory note Ex.A1 dated 30.08.2008. Since there was no repayment, he filed the suit. 16. According to the defendant, the plaintiff in the business transaction gave gold for manufacturing new ornaments. For security purposes, he received empty signed non-judicial stamp papers, blank pronotes and green sheets with the signature of the defendant. After completing his work, the defendant handed over all the ornaments and asked to return the empty signed stamp papers, promissory notes and green papers but the plaintiff never returned the signed papers. Therefore, the defendant filed a suit in O.S.No.1312 of 2008 for the relief of mandatory injunction for returning the signed papers. Hence, he pleaded to dismiss the suit. 17. In the evidence, the plaintiff deposed that the suit promissory note dated 30.08.2008 is executed by the defendant on receiving the amount of Rs.20,00,000/- for his personal business purpose and it was not obtained for security purpose. 18. Hence, he pleaded to dismiss the suit. 17. In the evidence, the plaintiff deposed that the suit promissory note dated 30.08.2008 is executed by the defendant on receiving the amount of Rs.20,00,000/- for his personal business purpose and it was not obtained for security purpose. 18. The learned counsel for the plaintiff submitted that the defendant by issuing Ex.A2 notice dated 03.12.2008 impliedly admitted about the execution of promissory note dated 30.08.2008. He issued notice to the plaintiff as well as one of the attesting witnessess viz., V.Vivekanandan, which reflects the intention to defraud the plaintiff by not returning the amount as agreed by him. The defendant filed the suit in O.S.No.1312 of 2008 to return the blank non judicial stamp papers and green sheets and not mention anything about the blank promissory notes, only to defraud the plaintiff. The defendant and his brothers separately filed this type of suit against the plaintiff in order to avoid the payment upon this suit promissory note dated 30.08.2008. 19. On perusal of the evidence, it is noticed that the defendant on03.12.2008 issued notice Ex.A2 to the plaintiff and one of the attestors viz., V.Vivekanandan to return the blank promissory notes and the other papers signed by him. It reveals that promissory note Ex.A1 dated 30.08.2008 having been attested by V.Vivekanandan, which shows the knowledge of the defendant about the promissory note dated 30.08.2008. Thereafter, by issuing notice Ex.A4 requested the plaintiff to sent xerox copy of the disputed promissory note dated 30.08.2008, the plaintiff by issuing reply notice dated 05.01.2009 with xerox copy of the promissory note through his counsel which is evidenced as Ex.A5. For that, the defendant did not send any reply notice denying the promissory note dated 30.08.2008 after seeing the xerox copy of the disputed suit promissory note dated 30.08.2008 the defendant was silent in this regard. 20.Before the trial Court, the defendant/DW1 filed his proof affidavit, in which, in para – 4, he stated that he gave signed promissory note to the plaintiff with his thumb impression, which reads as follows: 21. 20.Before the trial Court, the defendant/DW1 filed his proof affidavit, in which, in para – 4, he stated that he gave signed promissory note to the plaintiff with his thumb impression, which reads as follows: 21. In view of the above defendant's evidence, the burden is upon the defendant to establish that he had handed over signed blank promissory note for security purpose of doing new Gold ornaments but in this regard, the defendant fails to prove that the suit promissory note dated 30.08.2008 was given by the defendant only for security purpose and there is no material on record to show that the suit promissory note dated 30.08.2008 for a sum of Rs.20,00,000/- was executed by the defendant for security purpose. 22. Under Section 118, Negotiable Instruments Act, there is a presumption that unless the contrary is proved a negotiable instrument shall be presumed to have been made for consideration. With this presumption in favour of the plaintiff, burden was on the defendant to prove want of consideration. The defendant admitted his signature on pronote and stated that it was executed in a blank form there arises a legal presumption under Section 118, Negotiable Instruments Act that it was prima facie supported for considerations, this presumption is rebuttable. As presumption is not rebutted it cannot be said that blank pronote form was given to the party as security for erstwhile transaction. 23. In this case, the defendant fails to prove his case and no material evidence in support of his defence raised in the written statement. Therefore, the trial Court rightly decreed the suit in favour of the plaintiff and the promissory note dated 30.08.2008 is true, valid and enforceable and the plaintiff is entitled to recovery of money upon the defendant and points are answered accordingly in favour of the plaintiff. I find no valid ground for interference in the judgment and decree of the trial Court and the appeal suit has no merit. Accordingly, the appeal suit is dismissed with costs. Consequently, the connected miscellaneous petition is closed.