T.K.Murthy Vs N.Viswanathan

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2025:MHC:645

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IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27.01.2025

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CORAM

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THE HONOURABLE MS JUSTICE R.N.MANJULA S.A.No. 1078 of 2014

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T.K.Murthy S/o Thangappan, Car North Street, Sirkali Town, Nagapattinam District. .... Appellant Vs. N.Viswanathan, S/o Nagalingam Chettiar, No.31, Pettai North Street, Kumbakonam Town, Thanjhavur District. ... Respondent

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PRAYER: Second Appeal is filed under Section 100 of C.P.C , against the judgement and decree dated 07.07.2014 made in A.S.No.66/2011 on the file of the Court of Principal Sub-Ordinate Judge, Mayiladuthurai and restore the judgement and decree passed in O.S.No.17/2008 dated 29.01.2011 on the file of the Court of District Munsif, Sirkali.

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For Appellant : Mr.V.Sundar

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For Respondent : Mrs.Unamaheswari

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JUDGEMENT

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The appellant is the plaintiff who has filed a suit for recovery of money against the defendant and got a decree before the trial Court. On the first appeal preferred by the defendant, the first Appellate Court had allowed

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the first appeal and set aside the judgement and decree of the trial Court.

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2. The short facts pleaded in the plaint filed by the plaintiff are

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as follows:

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The defendant has obtained a sum of Rs.80,000/- from the plaintiff on 29.01.2006 and executed a promissory note for agreeing to repay the said amount along with interest at the rate of 12% per annum. As the defendant did not repay the loan amount along with interest despite repeated demands,

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the plaintiff has filed a suit for recovery of money.

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3. The defendant has resisted the suit by filing a written

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statement as the contents of which are given in brief as under:

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The suit promissory note is a created one and the defendant has not affixed his signature. The defendant did not sign the promissory note by receiving any loan as alleged by the plaintiff. The property which is sought to be attached before the judgment is not the property that belongs to the defendant. On 26.1.2008, he came to the property with muscle power to stop

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the repair works being carried out by the defendant's sister's son Venkatesan in the petition mentioned property, which belongs to the plaintiff's father Nagalingam Chettiar. Immediately the sister's son of the defendant had given a police complaint. Thereafter, the plaintiff was called by the Sreekazhi police and they warned him not to stop the repairing work that was being carried out in the suit property. The plaintiff does not have any capacity to lend a huge sum as loan to the defendant. The defendant is only running a welding shop. Just to have an unlawful enrichment, he has filed the suit. Before filing the suit, no notice was issued to the defendant. Hence, the suit should be dismissed.

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4 . On the basis of the above pleadings, the trial court has framed

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the following issues:

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"(1) jhth gpuhkprhp nehl;L nghh;$upahdjh>

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(2) thjp gpuhjpy; nfhhpa jhthj;bjhifg;bgw;wjPh;g;ghiz

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thjpf;F;ffpilf;fjf;fjh>

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(3) ntW vd;d ghpfhuk; fpilf;ff;ToaJ>"

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5. During the course of the trial, on the side of the plaintiff, two

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witnesses have been examined as P.W.1 and P.W.2 and Ex.A1 was marked.

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On the side of the defendant, one witness has been examined as D.W.1 and Exs.B1 to B3 were marked.

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6. At the conclusion of the trial and on considering the evidence

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available on record, the trial Court has decreed the suit. The First Appeal preferred by the defendant was allowed by the First Appellate Court by setting aside the judgement and decree of the Trial Court. Aggrieved over that the plaintiff has filed the Second Appeal and the same has been admitted on the following substantial questions of law:

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"(1) When the plaintiff had examined one of the attesting witnesses, as P.W.2, whether the Lower Appellate Court erred in law in holding that the other attesting witness should have been examined?

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(2) Whether the Lower Appellate Court erred in law in dwelt at length on the statements made by the Defendant in his evidence which have no backing in the Written Statement contrary to the well established principle of law that " No amount of evidence can be looked into without pleadings?"

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DISCUSSION:

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7. The suit promissory note was not admitted by the defendant. As

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per the contention of the defendant, it is a forged one. So the burden is upon the plaintiff to prove that the suit promissory note was not only executed by the defendant but it is also supported by the consideration as claimed in the plaint. The defendant had adduced in his evidence that his brother namely, Mani was conducting a chit firm by name 'M.M.F. chit' which went into loss in which the plaintiff was also a subscriber. As defendant's brother Mani had committed suicide, the subscribers had given pressure to the plaintiff's family to pay the dues to them and out of pressure a Muchalika was written and the defendant's signature was sought to be obtained by writing his name in Tamil. However, the defendant did not affix his signature because of some commotion arose there. As the plaintiff was an important member among the group of subscribers who had joined in the chit with the defendant's brother Mani, he had made use of the name of the defendant written in Tamil and created the suit promissory note by making a similar name on the stamp of the promissory note.

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8 . The vehement argument advanced by the learned counsel for the

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appellant is that the defendant did not raise these contentions in his

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pleadings and has deposed evidence regarding matters that were not pleaded, which is not admissible in law.

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9. On perusal of the written statement, it is seen that the defendant

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did not give details as to the chit run by his brother and that the plaintiff was a subscriber and only in view of some security arrangement made to pay the chit amount of the subscribers on the death of his brother, a muchalika was prepared. All these facts were not pleaded by the defendant in his pleadings.

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10. Even if the said defence is not available to defend the defendant, the fact remains that he did not admit the signature, claiming that he used to affix his signature only in English. At the time when the defendant was examined as D.W.1, he had affixed his signature on blank paper; the said paper containing the signature of the 1st defendant is marked as Ex.B3. Even according to the plaintiff's cross-examination, the defendant is permanently living in Kumbakonam and the plaintiff is living in Sirkali.

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11 . It is submitted by the learned counsel for the

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respondent/defendant that he did not have any occasion to go to Sirkali, and obtained money from the plaintiff and therefore, it is clear that the suit promissory document is a forged document. Apart from the self-serving evidence of PW.1, the plaintiff is examined as PW. 2 in order to prove the genuineness of the promissory note. However, P.W.2 has stated in his evidence that in the suit promissory note, the plaintiff and thereafter the defendant and one Bala Subramanian had affixed their signatures. The fact remains that the plaintiff's signature was not found in the Ex.A1 promissory note.

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12 . The defendant has submitted that the plaintiff did not have the financial capability to lend a huge sum of Rs. 80,000/- to the defendant on the alleged day of the promissory note. In D.W.2's cross-examination, PW.2 who was the attesting witness to the promissory note, stated that in the promissory note the plaintiff has affixed his signature and thereafter the defendant and others had affixed their signatures. In the promissory note, it is unnecessary for the plaintiff to affix his signature. In fact his signature is not available in Ex.B1 promissory note. Apart from PW.2, the plaintiff did

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not produce to any other witness to substantiate his contention. The defendant was asked to affix his signature before the Court and he has affixed his signature, which is available at Ex.B3.

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13. It is stated that in the promissory note that the defendant has affixed his signature in the suit promissory note in the year 2006 and borrowed money. There may be a slight difference in the signatures of a person from time to time. In other words, there may be some resemblance between the signatures of two different times, which was obtained in the years 2006 and 2010 when the same signature was obtained before the Court. But in the instant case the signature in Ex.A1 appears to have got major difference. In such circumstances it would have been worthwhile if the plaintiff could have examined some other witnesses in this regard to prove that the promissory note was executed by the defendant and it is supported by consideration.

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14 . The lower Court had decreed the suit. The defendant has denied

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that he was not in the habit of affixing his signature in Tamil and all along

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he used to sign only in English. Even though the defendant is not entitled to adduce evidence in respect of pleadings, which he has not pleaded, he has the liberty to cross examine PW.1. on several aspects including the facts which he did not plead in the written statement. During the cross examination of PW.1. he has admitted the story of entering into a muchalika during Panchayat with regard to the chit conducted by the defendant's deceased brother and in which the plaintiff is also a subscriber.

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15. According to the defendant, he did not affix his signature even though the muchalika was written, and what is written in the muchalika is the defendant's name, and when he was about to sign, due to the commotion in the crowd, he could not sign. However, the plaintiff has stated in his evidence that the defendant has affixed his signature in muchalika and the signature in the muchalika and the promissory note look identical. In that case, the plaintiff could have produced the Muchalika and examined witnesses to confirm its execution and the defendant's signature on it. Thereafter, the plaintiff could have demonstrated that the defendant's signature on the Muchalika was identical to the alleged signature on Exhibit

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A1, the promissory note. However, the plaintiff did not take any steps to prove that the signature affixed on Exhibit A1, the promissory note, was indeed affixed by the defendant. Neither the plaintiff has produced any evidence to show that he has the financial capability of lending a huge amount of Rs. 80,000/- on the day when the promissory note is said to have been executed by the defendant.

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16. Even according to the evidence of PW1, the defendant's native place is Kumbakonam, and he used to reside there; the plaintiff's residence is at Sirkazhali and hence, there is no occasion for the defendant to go to plaintiff's village in Sirkazhali. But the defendant has stated in his evidence that he was asked to execute muchalika in the police station. But those records have not been found fault by the plaintiff in order to support the facts pleaded by him that Ex.A1 Promissory note was executed by D.W.1., the defendant.

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17 . In the absence of any satisfactory proof to show that the defendant had executed Ex.A1 promissory note by availing the loan amount

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as stated therein, the trial Court cannot decree the suit, since the burden is upon the plaintiff to prove that the suit promissory note is executed by the defendant for valuable consideration and the defendant did not seek to examine D.W.2, the other attesting witness also in this regard the plaintiff's case remains not proved. Hence I find no reasons to interfere with the judgement and decree of the First Appellate Court and hence the substantial

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question of law No.1 is not answered in favour of the appellant.

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18. The plaintiff has failed to discharge his duty by proving satisfactorily before the Court that the suit promissory note is executed by the defendant with valuable consideration as found therein. Therefore, I don't find any reason to interfere with the judgement of the First Appellate Court.

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In the result, the second appeal is dismissed. The judgement and decree dated 07.07.2014 made in A.S.No.66/2011 on the file of the Court of Principal Sub-Ordinate Judge, Mayiladuthurai is confirmed. The suit in OS.No.17/2008 on the file of the District Munsif, Sirkazhi stands dismissed. No costs. Consequently connected miscellaneous petition is closed.

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27.01.2025

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jrs Index: Yes/No Speaking: Non-Speaking Order Internet: Yes/No Neutral:Yes/No To

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