Allowed

Pongiannan v. Thavasiammal

Madras HC14 Dec 2021SA/200/2012

Case brief

AI extract

What is this about?

A second appeal in a money recovery suit where the execution of a promissory note was denied. The High Court set aside the appellate decree, holding that the plaintiff failed to prove execution due to adverse testimony from the attester and scribe, and upheld the lower court's dismissal due to lack of presumption under Section 118.

What did the court decide?

The judgment and decree of the Sub Court allowing the suit are set aside, and the judgment and decree of the District Munsif Court dismissing the suit are restored.

Pongiannan Vs Thavasiammal — Contract and Commercial Disputes | Madras HC (2021)

¶1

IN THE HIGH COURT OF JUDICATURE AT MADRAS

¶2

RESERVED ON : 10.12.2021 PRONOUNCED ON : 14.12.2021

¶3

CORAM:

¶4

THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN

¶5

S.A.No.200 of 2012

¶6

Pongiannan ... Appellant/Defendant Vs. Thavasiammal ... Respondent/Plaintiff

¶7

Prayer: This Second Appeal Appeal has been filed under Section 100 of C.P.C., against the judgment and decree passed in A.S.No.73 of 2010, by the Sub Court, Gobichettipalayam, dated 21.10.2011, reversal the judgment and decree, passed in O.S.No.314 of 2006, by the District Munsif Court, Gobichettipalayam, dated 08.10.2010.

¶8

For Petitioner : Mr.N.Manokaran For Respondent : Mr.P.R.Bala Subramanian

¶9

JUDGMENT

¶10

The defeated defendant is the appellant herein.

¶11

2.Challenging the finding rendered in A.S.No. 73 of 2010, by the learned Sub-Court, Gobichettipalayam, dated 21.10.2011, the defendant has preferred the above Second Appeal.

¶12

3.The respondent herein/plaintiff had filed a suit in O.S.No.314 of 2006, for pronote for recovery of money of Rs.50,000/- along with 12% interest. The execution of Ex.A1/Pronote was disputed by the appellant/defendant.

¶13

4.Before the Trial Court, on behalf of the plaintiff PW1 to PW3 were examined and marked Exs.A1 to A6; on behalf of the defendant, defendant was examined as DW1 and marked Exs.D1 to D4.

¶14

5.The learned District Munsif, Gobichettipalayam, by relying upon answer elicited in the cross examination of PW2, who is the attestor of the pro-note & PW3/scribe of the pronote, has held that passing of consideration is not proved. Since the execution of Ex.A1/suit pro-note was disputed, the

¶15

https://hcservices.ecourts.gov.in/hcservices/

¶16

Trial Court has held that the plaintiff is not entitle for statutory presumption under Section 118 of the Negotiable Instruments Act and has dismissed the same. Aggrieved against the said dismissal of the suit, the plaintiff had filed an appeal suit in A.S.No.73 of 2010, before the Sub-Court, Gobichettipalayam and by an order dated 21.10.2011, the learned Judge has allowed the same. Hence, the Second Appeal preferred by the defendant.

¶17

6.Heard both the learned counsels and perused the materials placed on record.

¶18

7.On a perusal of the records it is seen that the above Second Appeal was admitted on 06.08.2012 and at the time of admission, following substantial questions of law were framed:

¶19

“1.Whether the First Appellate Court has committed an error in decreeing the suit on the promissory note Negotiable Instruments Act when the defendant has not only denied execution of the promissory note, the signature and thumb impression found therein, but also pleaded forgery?

¶20

2.Whether the First Appellate Court has committed an error in wrongly casting the burden of proof on the defendant to disprove the document, based on which the suit claim was made, without considering whether the suit pronote has been proved by the plaintiff, who has sued on it.?”

¶21

8.Mr.N.Manokaran, learned counsel for the appellant would

¶22

contend that it is a specific case of the defendant in the written statement he denied the execution of Ex.A1/suit pronote and in favour of the answer elicited in the cross examination of PW2 and PW3, attestor and scribe respectively goes to show that at the time of their signature, they are signing the pronote, DW1/defendant was not present they have not witnessed the passing of consideration and hence, prayed for setting aside the judgment of the Lower Appellate Court and for restoration of the judgment of the Trial Court. Further, the learned counsel for the appellant would draw my attention to the answer elicited in the cross examination of PW2 and PW3, which reads as follows:

¶23

“rhl;rp ifbahg;gk; nghLk;nghJ thjp. thjpapd; fzth; ,Ue;jhh;/ gpujpthjp m';F ,y;iy/ thjp mtUld; gHdpr;rhkp Mfpnahh;

¶24

https://hcservices.ecourts.gov.in/hcservices/

¶25

kl;Lnk ,Ue;jdh;/ gpujpthjp m';F ,y;iy/ gpuhkprhp nehl; vGjpa khjk; tUlk; Fwpg;ghf "hgfk; ,y;iy/ 4. 5 tUlk; ,Uf;Fk;/ gpuhkprhpapy; fz;l U:/50.000-?j;ij vdJ Kd;dhy; itj;J gpujpthjp bfhLf;ftpy;iy/ vd;dplk; rhl;rp ifbahg;gk; th';Fk;nghJ. th/rh/M/1?y; gpujpthjpapd; ifbahg;gk;/ ifnuif ,Ue;jJ/ gpuhkrhp nehl; th/rh/M1?y; gpujpthjp vdf;F Kd;ghf ifnuif vJt[k; nghltpy;iy/ th/rh/M/1 gpuhkprhp gpufhuk; gpujpthjp gzk; VJk; th';fp ,Uf;fpwhuh vd;W vdf;F bjhpahJ/ th/rh/M/1 gpuhkprhpapy; gpujpthjp ifbahg;gk; bra;jijnah mjd;go gzk; th';fpaijnah nehpy; ghh;f;fhky; th/rh/M1y; rhl;rp ifbahg;gk; ,l;Ls;nsd; vd;why; rhpjhd;/ vd;dplk; rhl;rp ifbahg;gk; th';Fk;nghJ gpuhkprhp epug;gg;gl;L ,Ue;jJ/

¶26

th/rh/M1 Rkhh; 6.7 Mz;LfSf;F Kd;g[ vGjg;gl;lJ/ Fwpg;ghf njjp vdf;F "hgfk; ,y;iy/ gpujpthjp bgh';fpaz;zd; vdf;F neuoahf gHf;fk; fpilahJ/ mth; v';F FoapUe;J tUfpwhh; v';F bjhHpy; bra;fpwhh; vd;W vdf;F bjhpahJ/ th/rh/M1 Rkhh; khiy 4 kzp mstpy; vGjg;gl;lJ gpuhkprhp vGJk;nghJ gpujpthjp bgh';fpaz;zd; m';F ,y;iy/ gpuhkprhp vGJk;nghJ gpujpthjp bjhif vJt[k; th';fpaij ehd; ghh;f;ftpy;iy/ rhl;rp ifbahg;gk; ,l;l fhsP!;tud; vd;gth; ehd; vGjpa md;iwa njjpapy; vdJ Kd;dhy; rhl;rp ifbahg;gk; nghltpy;iy/ thjp jtrpak;khs;. xU gHdpag;gd; vd;gth; nfl;Lf; bfhz;ljw;fpz';f th/rh/M/1 vGjpf; bfhLj;njd;/”

¶27

9.The appellant/defendant has taken additional plea that originally one of his friends viz., Abimannan was drawn amount from the chit company and he stood as a surety. In such capacity, he had executed one pronote in favour of the chit and the consent decree passed before the Registrar of Chit Company was marked as Ex.B1 to B4 and hence, the suggestive case of the defence has also been probablised.

¶28

10.Since there was a plea of forgery, denial of execution and according to the learned counsel for the appellant/defendant, burden of proof is upon the plaintiff, the learned counsel for the appellant relied upon the decision of the Hon'ble Supreme Court, reported in 2008 (4) SCC 530 – Thiruvengadam Pillai Vs. Navaneethamal and Another.

¶29

11.The learned counsel for the respondent/plaintiff relied upon the finding rendered by the Lower Appellate Court. The plaintiff is PW1; while the attestor is PW2 and the Scribe is PW3. He would draw my attention to the finding of the Lower Appellate Court that PW2 (attestor) and PW3 (scribe) of Ex.A1/suit pro-note, have been influenced to give contra

¶30

https://hcservices.ecourts.gov.in/hcservices/

¶31

evidence. Further, though PW2 could state that he has attested the document, it is elicited in the cross examination that at the time of signing on Ex.A1/suit pronote, the signature of the appellant/defendant has already been found there but he has not witnessed while the appellant/defendant was signing and affixing the thumb impression in Ex.A1/suit pro-note and as to the passing of consideration also he has answered in negation, assumes significance.

¶32

12.Further, PW3[Scribe] also in the cross examination has categorically stated that he only singed at the place preserved for the scribe of the document but he has not witnessed while the appellant/defendant was singing on the document. Besides, he has also pleaded ignorance regarding the amount received by the appellant/defendant. In other words, both PW2 and PW3 in the cross examination has pleaded ignorance, whether the appellant/defendant has singed on the document or not? Beside there is no whisper regarding passing of consideration under Ex.A1/suit pro-note. Therefore, unless when the defendant has taken of specific plea that he denied the execution and he is able to get an answer in affirmative in favour of the non execution, it is for the plaintiff to show the defendant had executed the document.

¶33

13.In view of the admission made by PW2 (attestor) & PW3 (Scribe), it is seen that even before they signed on the document there was a signature and thumb impression, which is said to have been as that of the defendant and both of them have pleaded ignorance regarding the passing of consideration for the pro-note and therefore, the Trial Court has rightly relied upon the decision of this Court reported in 2002 (2) MLJ 715 Sethurathinam Vs. Subramanian, wherein, this Court has held as follows:

¶34

“It is well settled that the burden initially rests on the plaintiff to prove that the promissory note was executed by the defendant. Then only the plaintiff is entitled for presumption as against the defendant, as provided under Section 118(a) of the Negotiable Instruments Act.”

¶35

In view of the finding rendered therein, I find that the finding rendered by the Lower Appellate Court that PW2 & PW3 were influenced to give a contra evidence appears to be a perverse finding and hence, the same is liable to be vacated.

¶36

14.On a perusal of the records, both PW2 (attestor) & PW3

¶37

https://hcservices.ecourts.gov.in/hcservices/

¶38

(scribe) were cross-examined on the very same day and hence, the perverse finding recorded by the Lower Appellate Court at paragraph No.12 is hereby vacated. Thus, as the

¶39

appellant/defendant denied the execution of the pro-note and the respondent/plaintiff failed to prove the execution, in view of the admission of PW2 and PW3 as extracted supra, the Trial Court has rightly come to the conclusion that the execution of the pro-note is not proved by the defendant/plaintiff in the manner known to law. Consequently, he is not entitled for presumption under Section 118 of Negotiable Instruments Act is hereby upheld. Accordingly the judgment and decree by the Lower Appellate Court is set aside and the judgment and decree passed by the Trial Court is restored.

¶40

15.In the result, this Second Appeal stands allowed. The Judgment and decree passed in A.S.No.73 of 2010, by the Sub Court, Gobichettipalayam, dated 21.10.2011 is hereby set aside and the judgment and decree, passed in O.S.No.314 of 2006, by the District Munsif Court, Gobichettipalayam, dated 08.10.2010, is restored. No costs.

¶41

Sd/-

¶42

Assistant Registrar(I)

¶43

//True Copy//

¶44

Sub Assistant Registrar

¶45

dua To:

¶46

1.The Sub Court, Gobichettipalayam.

¶47

2.The District Munsif Court, Gobichettipalayam.

¶48

Copy To

¶49

The Section Officer, VR Section, High Court, Madras.

¶50

+1cc to Mr.N.Manokaran, Advocate SR.No.66830

¶51

+1cc to Mr.P.R.Balasubramanian, Advocate SR.No.66208

¶52

S.A.No.200 of 2012

¶53

RSI(CO) GN(11/03/2022)

¶54

https://hcservices.ecourts.gov.in/hcservices/

Pongiannan v. Thavasiammal

Case brief

What is this about?

What did the court decide?

Pongiannan v. Thavasiammal

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Ramakrishnan Vs M.Ramu

K. Balaraman Vs J. Nehru

A.Aruchamy Vs P.Jayabalan (Deceased)

The Secretary, Vs Thirunavukkarasu

K.Murugesan Vs Subramani

A.Mohanasundaram Vs Avinashi Gounder