In a second appeal regarding a suit for money lent, the High Court of Madras held that the defendants successfully disproven the consideration by proving a separate transaction. The court found the plaintiff's father unreliable avowedly denying his employment. The appeal was dismissed.
The Second Appeal filed by Suresh was dismissed; no order as to costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 29.06.2021
PRONOUNCED ON : 06.07.2021
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.573 of 2008
Suresh...Appellant/Respondent/Plaintiff
Vs.
1.Govindaraj
2.Akilandeswari ...Respondents/Appellants/Defendants
PRAYER: Second Appeal filed under Section 100 of the Code of
Civil Procedure against the Judgment and Decree in A.S.No.56 of
2006 on the file of the learned Sub Judge, Tirupattur, dated
23.11.2007 in reversing the Judgment and Decree in O.S.No.202 of
2004 on the file of the learned District Munsif, Tirupattur,
dated 02.09.2005.
For Respondents: Mr.Bharath Gowthaman
JUDGMENT
The plaintiff is the appellant before this Court
questioning the correctness of the Judgment and Decree of the
learned Subordinate Judge, Tirupattur in A.S.No.56 of 2006 in and
by which the Judgment and Decree of the learned District Munsif,
Tirupattur has been reversed.
2.A brief resume of the facts culminating in the filing
of the above Second Appeal is necessary to appreciate the
challenge to the Judgment and Decree in A.S.No.56 of 2006. For
the ease of understanding, the parties are being referred to in
their litigative status as before the trial Court.
PLAINTIFF'S CASE:
3.The defendants, according to the contentions in the
Plaint, had borrowed a sum of Rs.30,000/- jointly from the
plaintiff on 16.09.1994 for the business of the 1st defendant.
The 1st defendant was running a Cycle Shop. The defendants had
jointly executed a Promissory Note in favour of the plaintiff for
the cash received and they agreed to repay the said sum with
interest @24% per annum. However, no amount were paid as
promised. A legal notice dated 30.07.1997 was issued by the
plaintiff to which there was no response. Hence, the suit.
WRITTEN STATEMENT:
4.The defendants had categorically denied the borrowal
from the plaintiff and had contended that the plaintiff did not
have the wherewithal to give a sum of Rs.30,000/- as loan. The
plaintiff's father Thulasidoss was working as a Clerk with the
1st defendant and was writing accounts besides looking after the
cycle business. When the defendants wanted a loan of a sum of
Rs.30,000/-, the plaintiff's father had arranged the said sum
through Ravikumar, an Auditor at Tirupattur. The said Ravikumar
wanted a pro-note to be signed by the 1st appellant and his wife,
the 2nd defendant herein. After receiving the loan of
Rs.30,000/- on 16.09.1994, the defendants had signed a printed
pro-note in which the date and amount alone was written and the
same was given to the said Ravikumar.
5.The said Ravikumar was also subscribing to a Chit being
run by the defendant. The said Ravikumar who did not paid the
amounts due under the Chit called upon the defendant to adjust
this amount from the amounts due by the defendant to the said
Ravikumar under the pro-note. After working out the amounts and
interest, the same was adjusted from the amounts due from the
defendants under the pro-note and Ravikumar returned the pro-note
in the same condition as it was handed over to him, viz., with
just the date and amount as well as the signatures of the
defendants. The 1st defendant kept it in the shop and the
plaintiff's father have taken the same and created the suit pro-
note.
6.Both the plaintiff as well as his father did not have
the wherewithal to pay a sum of Rs.30,000/-. In fact, the
defendant had terminated the plaintiff's father from his services
on 04.02.1995. The defendant pleaded that there was no cause of
action for the suit and the pro-note was fabricated in the name
of the plaintiff and therefore, sought for a dismissal of the
suit.
7.The learned District Munsif, Tirupattur, had framed the
following issues:
"(a)Whether the suit pro-note is fabricated?
(b)Whether there is a cause of action for filing the
suit?
(c)What is the relief that can be granted to the
plaintiff?"
8.On 11.02.2001, the following additional issues were
framed:
"(a)Whether the plaintiff is entitled to
recover the amount claimed in the suit?
(b)Whether the defendants have the wherewithal to
give the loan?"
9.The above issue should have actually read as "Whether
the plaintiff has wherewithal to give the loan?"
10.The learned District Munsif decreed the suit as prayed
for. This Judgment and Decree were challenged by the defendant
in A.S.No.56 of 2006 on the file of the learned Subordinate
Court, Tirupattur. The learned Subordinate Judge allowed the
Appeal and it is against this Judgment and Decree that the
plaintiff is before this Court.
11.When the matter was listed for admission on
25.04.2008, this Court had directed notice to the defendants.
12.Mr.Joseph Stalin arguing on behalf of the plaintiff
would contend that the defendants have acknowledged their
signatures in the Promissory Note but had not proved their
contention regarding the transaction with Ravikumar. He would
submit that under Section 20 of the Negotiable Instruments Act,
once the document is signed and delivered, it is a valid
document. He would further submit that the plaintiff by
examining PW2 has proved the execution and handing over of the
Ex.A.1-Promissory Note and therefore, the plaintiff had
discharged their onus of proof. He would further contend that
the defendants have not filed any document to prove that the
plaintiff's father was an employee of the defendants. Therefore,
he would submit that the Judgment and Decree of the Appellate
Court requires a re-consideration and must be set aside.
13.Per contra, Mr.Bharath Gowthaman, appearing on behalf
of the defendants would contend that the plaintiff had not
discharged the onus of proving passing of consideration,
especially, when the defendants have categorically denied the
receipt of consideration and had also proved the actual facts
surrounding the execution of the pro-note dated 16.09.1994. He
would submit that the fabrication of Ex.A.1-Pro-note has been
orchestrated by P.W.2, the plaintiff's father. Taking advantage
of the fact that he is in the 1st defendant's employment and in
charge of the business and finances, he has misused his position
of trust to create the said document. The Appellate Court has
analysed the evidence and given reason for reversing the Judgment
of the trial Court.
14.Heard the learned counsel appearing on either side and
perused the records.
15.The following Substantial Question of Law arises for
the consideration of this Court after hearing the submissions of
the counsels on either side.
"Whether the defendants who have admitted their
signatures in Ex.A.1 Promissory Note have discharged
the onus of proving that no consideration has passed?"
16.The defendants' case is that Ex.A.1-Pro note has been
fabricated by the father of the plaintiff using the signatures of
the defendants in a pro-note executed by them on 16.09.1994
without filling up the name of the Promisee. To prove this
contention, the defendants had stated that the plaintiff's father
who was an employee of the 1st defendant had arranged for funds
when it was requested by the 1st defendant for his business
purpose with one Ravikumar who was an Auditor. That a sum of
Rs.30,000/- was received from the said Ravikumar on 16.09.1994
has been proved by marking Ex.B.1, the entry at Page 56 of the
Account Book. The signatures and handwriting of P.W.2 in Exs.B1
to B7 has been admitted by his son the plaintiff. The Entry in
Ex.B.1 in the hand of P.W.2 would show that it is a credit entry
from the Auditor on 16.09.1994 for which interest has been paid.
Therefore, the transaction with i.e., the borrowal from, the
Auditor has been proved.
17.The defendants have emphatically stated that the
plaintiff did not possess the wherewithal to give such a huge sum
of Rs.30,000/-. The cross examination of P.W.1 in this regard
would make an interesting read:
" ehDk;. vd; jfg;ggdhUk; Vff; FLk;gkhf xd;whfj;jhd ,Uf;fpnwhk;. vdf;F jpUkzk; Mftpy;iy. vd; mg;ght[f;Fk; ghj;jpag;gl;l brhj;Jf;fs; VJt[k; ,y;iy. gpujpthjp irf;fps; fil itj;jpUf;fpwhh;. irf;fps; !;ngh;ghh;l;!;fSk; tpw;gid bra;J te;jhh;. gpujpthjp jpUg;gj;J}hpy; bt';fnl!;tuh irf;fps; !;nlhh;!; vd;w Kfthpapy; fil itj;jpUf;fpwhh;/ me;jf; fil jpUg;gj;J}hpy; thzpak;gho rhiyapy; ghuj; nf!; filf;F gf;fj;jpy; ,Uf;fpwJ/ vd;Dila jfg;gdhh; mthplk; fzf;F vGJk; ntiy bra;J te;jhh;/ nkYk; mf;ft[z;ld;l; Mft[k; ntiy bra;jhh;/ vd;Dila jfg;gdhUf;F vt;tst[ rk;gsk; fpilj;jJ vd;W vdf;F bjhpahJ/ vd; jfg;gdhh; ,g;nghJ me;jf; filf;Fg; nghtjpy;iy/ vg;nghJ ,Ue;J filf;F nghftpy;iy vd;W vdf;F bjhpahJ. ehd; 1998y; gp/fhk;. goj;Jtpl;nld;. ,g;nghJ ehd; ve;j ntiya[k; bra;atpy;iy. ehd; murh';f ntiyapy; jw;fhypfkhf ntiy bra;njd; vd;gjw;F fhl;Ltjw;Fk;. me;j ntiyapy; vt;tst[ rk;gsk; th';fpndd; vd;gij fhl;Ltjw;Fk; Mtzk; vJt[k; jhf;fy; bra;atpy;iy. 1996y; v';fsplk; U:.30.000 /- ,Ue;jJ vd;gij fhl;Ltjw;Fk; Mtzk; VJt[k; jhf;fy; bra;atpy;iy/ "
18.The admission made by P.W.1 is sought to be undone by
examining P.W.2 and a mere reading of the extract of the same in
the Judgments of the Appellate Court would establish that the
witness is not speaking the truth. P.W.2 has denied his very
employment with the 1st defendant. Therefore, this witness is
not only an unreliable witness but also an interested witness,
being the father of the plaintiff and the person who has created
the document Ex.A.1. Therefore, the defendants have discharged
the onus cast upon them by proving that no consideration has
passed to them and the Substantial Question of Law is answered in
favour of the defendants.
In fine, the Second Appeal is dismissed, however, there
shall be no order as to costs.
Sd/-
Assistant Registrar
//True Copy//
Sub Assistant Registrar
mps
To
1.The Sub Judge,
Tirupattur.
2.The District Munsif,
Tirupattur.
+1cc to Mr.V.Raghavachari, Advocate, S.R.No.31556
+1cc to Mr.T.R.Rajaraman, Advocate, S.R.No.31301
S.A.No.573 of 2008
JPL(CO)
SB(09/11/2021)
2 issues framed by the court
Whether the defendants who admitted their signatures in the Promissory Note have discharged the onus of proving that no consideration passed?
Whether the plaintiff father's evidence regarding the employment relationship with the debtor was credible to rebut the claim of consideration?
1 provisions across 1 enactments
Suresh
Govindaraj
Akilandeswari
P.T. ASHA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court