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2025 DIGILAW 434 (MAD)

R. Sumithra v. Karuppasamy

2025-01-22

R.HEMALATHA

body2025
JUDGMENT : R.Hemalatha, J. The appellant is the fourth defendant in O.S.No.19 of 2005, on the file of the District Munsif Court, Avinashi. The first respondent / plaintiff filed the suit for recovery of a sum of Rs.37,890/- together with interest at the rate of 12% per annum from the defendants from and out of the estate of the deceased Rasappa Gounder. 2. For the sake of convenience, the parties are referred to as per their rank in the trial court and at appropriate places, their rank in the present second appeal would also be indicated. 3.The case of the plaintiff in a nutshell is as follows : One Rasappa Gounder (since deceased), husband of the first defendant and father of the defendants 2 to 4 borrowed a sum of Rs.35,000/- from the plaintiff and executed a promissory note on 05.05.1998 (Ex.A1) promising to repay the principal together with interest at the rate of 12% per annum on demand by the plaintiff or to his order. Rasappa Gounder did not repay any amount either towards the principal or interest and subsequently he died. The plaintiff demanded the defendants to pay the amount due under the pronote on several occasions. On 11.03.1999, he issued a lawyer's notice (Ex.A2) to the defendants calling upon them to repay the amount due under the promissory note (Ex.A1). However, the defendants sent a reply dated 20.03.1999 (Ex.A3), which according to the plaintiff contained false allegations. Therefore, the plaintiff issued a rejoinder dated 02.04.1999 (Ex.A4) and thereafter, filed the present suit. 4. During the pendency of the suit the first defendant died and the suit was resisted by the defendants 2 to 4 on the following grounds: i. All the allegations contained in the plaint are false. ii. Rasappa Gounder did not borrow a sum of Rs.35,000/- from the plaintiff on 05.05.1998. iii.The defendants came to know about the alleged pronote only after the receipt of the legal notice from the plaintiff. iv. The signature found on the promissory note (Ex.A1) is not that of Rasappa Gounder. v. There was no necessity for Rasppa Gounder to borrow any amount from the plaintiff. 5. On the basis of the above pleadings, the trial Court framed the following issues and additional issue : "(i) Whether the suit pronote dated 05.05.1998 is valid ? (ii) Whether the suit is barred by limitation ? v. There was no necessity for Rasppa Gounder to borrow any amount from the plaintiff. 5. On the basis of the above pleadings, the trial Court framed the following issues and additional issue : "(i) Whether the suit pronote dated 05.05.1998 is valid ? (ii) Whether the suit is barred by limitation ? (iii) Whether the plaintiff is entitled to the suit claim ? (v) To what other reliefs the plaintiff is entitled ?" Additional Issue : "i. Whether the suit pronote is a forged one as alleged by the defendants ?" 6. In the trial Court, the plaintiff examined himself and one another witness and marked Ex.A1 to Ex.A5. The second defendant examined herself. However, no documentary evidence was adduced on the side of the defendants. 7. The learned trial court judge, on considering the evidence on record, decreed the suit filed by the plaintiff, vide his decree and judgment dated 29.02.2008, on the following grounds: i. The plaintiff has proved the execution of the promissory note (Ex.A1) by Rasappa Gounder by adducing acceptable evidence. ii. The discrepancies in the evidence of PW1 and PW2 are minor in nature and infact, the evidence of PW1 is amply corroborated by the evidence of PW2 in all material particulars. iii.The defendants have not rebutted the presumption under Section118 of the Negotiable Instruments Act by adducing acceptable evidence. 8. Aggrieved over the decree and judgment passed by the trial court judge, the defendants filed an appeal in A.S. No.22 of 2016, before the Sub Court, Avinashi. The learned Subordinate Judge, Avinashi, after analysing the evidence on record, upheld the findings recorded by the trial court judge vide her decree and judgment dated 21.10.2016, as against which the present second appeal is filed by the fourth defendant. 9. Though the second appeal is filed in the year 2017 it has not been admitted till date. 10. Heard Mr.R.Sunil Kumar, learned counsel for the appellant and Mr.C.S.Saravanan, learned counsel for the first respondent/plaintiff. 11. Mr.R.Sunil Kumar, learned counsel for the appellant contended that the plaintiff has not proved the execution of the promissory note (Ex.A1) by late Rasappa Gounder in the manner known to law and that there are material contradictions in the evidence of PW1 and PW2. 11. Mr.R.Sunil Kumar, learned counsel for the appellant contended that the plaintiff has not proved the execution of the promissory note (Ex.A1) by late Rasappa Gounder in the manner known to law and that there are material contradictions in the evidence of PW1 and PW2. When PW1 had deposed that PW2 (one of the attestors to promissory note) was present in his house till 9.00 a.m. on 05.05.1998, PW2 had deposed that he attended his office at Tiruppur as usual by 8.30 a.m. According to the learned counsel for the appellant, this could not have been possible since even according to PW2 it would take 45 minutes to reach his office. It is also his contention that PW2 during the course of cross examination had deposed that he did not give instructions to the plaintiff for preparing the proof affidavit and that these aspects have not been considered by both the Courts below. He relied on the decision of the Hon'ble Supreme Court in Ramthal vs Maruthathal and others reported in (2018) 18 SCC 303 and contended that when appreciation of evidence suffers from material irregularities, this court is empowered to interfere on a question of fact. He further relied on the decision of the Hon'ble Supreme Court in State of Rajasthan and others vs Shiv Dayal and another reported in (2019) 8 SCC 637 wherein it has been held thus: "16. When any concurrent finding of fact is assailed in second appeal, the appellant is entitled to point out that it is bad in law because it was recorded de hors the pleadings or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against any provision of law and lastly, the decision is one which no Judge acting judicially could reasonably have reached." His further contention is that the signature of Rasappa Gounder was not shown to the attestor (PW2) by the plaintiff and thus the signature of Rasappa Gounder has not been proved by the plaintiff. He, therefore, prayed for allowing the present second appeal. 12. The first and foremost ground put forth by the learned counsel for the appellant is that the signature of late Rasappa Gounder was not shown to PW2 when PW2 was in witness box. He, therefore, prayed for allowing the present second appeal. 12. The first and foremost ground put forth by the learned counsel for the appellant is that the signature of late Rasappa Gounder was not shown to PW2 when PW2 was in witness box. It is true that when the defendants have denied the signature on promissory note (Ex.A1) it is the bounden duty of the plaintiff to prove the due execution of the promissory note. In the instant case, the plaintiff has examined himself and also one of the attestors of the promissory note. The promissory note has been marked as Ex.A1. Both PW1 and PW2 had categorically deposed in their evidence that Rasappa Gounder signed on the revenue stamps affixed on the promissory note (Ex.A1) after reading the contents thereon. One Avinashilingam (since deceased) was the scribe of Ex.A1. The evidence of PW1 in this regard is extracted hereunder : The attestor (PW2) had deposed in his evidence that he signed on Ex.A1 as a witness in the presence of the plaintiff, Rasappa Gounder and vinashilingam (the scribe). He also identified his signature on Ex.A1 and identified the signature of Rasappa Gounder. For better understanding the evidence of PW2 in this regard is extracted hereunder: Therefore, it is clear that the attestor PW2 has identified the signature of the deceased Rasappa Gounder on the promissory note (Ex.A1). 13. Another ground urged by the learned counsel for the appellant is that there are material contradictions in the evidence of PW1 and PW2. The learned counsel for the appellant drew the attention of this Court to the evidence of PW1 and PW2 and contended that when PW1 had deposed that PW2 was present in his house till 9.00 a.m., PW2 had deposed that he attended his work as usual by 8.30 a.m. on 05.05.1998. 14. It is pertinent to point out that PW1 and PW2 were examined in court after ten years of execution of the promissory note (Ex.A1). PW2 had deposed that he left his house at about 6.30 a.m. on 05.05.1998 and attended his work at 8.30 a.m. Therefore, it can be easily inferred that he went to the house of PW1 and from there he left for Tiruppur to attend his duty. PW2 had deposed that he left his house at about 6.30 a.m. on 05.05.1998 and attended his work at 8.30 a.m. Therefore, it can be easily inferred that he went to the house of PW1 and from there he left for Tiruppur to attend his duty. The conjoint reading of the evidence of PW1 and PW2 clearly would show that PW2 was present during the execution of Ex.A1 and after the execution of Ex.A1 he left for Tiruppur. In fact all these aspects have been rightly appreciated by both the Courts below. 15. Furthermore, the date of execution of pronote was05.05.1998 and after ten years PW1 and PW2 were examined in court. In fact, PW2 was not cross examined on the date of filing the proof affidavit. He was cross examined by the defendants nearly after a month's time. Merely because PW2 has deposed in the cross examination that he did not give instructions for preparing the proof affidavit, the entire case of the plaintiff cannot be thrown out especially when PW2 had clearly deposed that he read the entire contents of the proof affidavit before filing it in the court. Both the Courts below had properly appreciated the evidence on record and decreed the suit in favour of the plaintiff. The first appellate court in its decision had observed thus : 23. On due consideration of both side contention this court finds that under Negotiable Instruments Act the initial burden in on the person who relies upon the pronote to establish the same and once the same is established the other side has to let in rebuttable evidence so as to establish his defenses to shatter the execution of the pronote. In this case on hand as discussed supra the respondent / plaintiff has established the due execution of Ex.A1 through the oral evidence of PW1 and PW2. Now the burden shifts to the appellant / defendant who has denied the signature in Ex.A1 to establish that the signature in Ex.A1 pronote is not that of Rasappa Gounder. That being so this court does not find any iota of merits in the argument put forth on the appellant side that the respondent / plaintiff failed to establish the signature of Rasappa Gounder." The above observations of the first appellate court cannot be said to be perverse. That being so this court does not find any iota of merits in the argument put forth on the appellant side that the respondent / plaintiff failed to establish the signature of Rasappa Gounder." The above observations of the first appellate court cannot be said to be perverse. Thus the decisions in Ramthal vs Maruthathal and others and State of Rajasthan and others vs Shiv Dayal and another (cited supra) relied on by the learned counsel for the appellant would not apply to the facts of the present case. The plaintiff has proved the execution of the promissory note by late Rasappa Gounder and there is ample corroboration in the evidence of PW1 and PW2. Nothing useful was suggested to PW1 and PW2 during the course of cross examination to discredit or disbelieve their versions. 16. Section 100 CPC is a jurisdiction confined to substantial questions of law only. In the decision in Madamanchi Ramappa and Another Vs Muthalur Bojjappa reported in (1964) 2 SCR 673 , the Apex Court observed as follows: "12.The admissibility of evidence is no doubt a point of law, but once it is shown that the evidence on which courts of fact have acted was admissible and relevant, it is not open to a party feeling aggrieved by the findings recorded by the courts of fact to contend before the High Court in second appeal that the said evidence is not sufficient to justify the findings of fact in question. It has been always recognised that the sufficiency or adequacy of evidence to support a finding of fact is a matter for decision of the court of facts and cannot be agitated in a second appeal. Sometimes, this position is expressed by saying that like all questions of fact, sufficiency or adequacy of evidence in support of a case is also left to the jury for its verdict. This position has always been accepted without dissent and it can be stated without any doubt that it enunciates what can be properly characterised as an elementary proposition. Sometimes, this position is expressed by saying that like all questions of fact, sufficiency or adequacy of evidence in support of a case is also left to the jury for its verdict. This position has always been accepted without dissent and it can be stated without any doubt that it enunciates what can be properly characterised as an elementary proposition. If in reaching its decisions in second appeals, the High Court contravenes the express provisions of section 100, it would inevitably introduce in such decisions an element of disconcerting unpredictability which is usually associated with gambling and that is a reproach which judicial process must constantly and scrupulously endeavour to avoid." In the circumstances, there is no substantial question of law involved in the present appeal and therefore, the second appeal deserves to be dismissed. 17. In the result, i. the Second Appeal is dismissed. No costs. ii. the decree and judgment dated 21.10.2016 passed in A.S. No.22 of 2016, on the file of the Sub Court, Avinashi, and the decree and judgment dated 29.02.2008 passed in O.S.No.19 of 2005, on the file of the District Munsif Court, Avinashi, are upheld.