K.Sekar Vs N.Ayyasamy

PRAYER : This Second appeal filed under Section 100 of Civil Procedure Code, to set aside the judgment and decree passed in Appeal suit No. 9 of 2021 by his Hon'ble Principal District Judge at Villupuram, dated 12.07.2022 confirming the judgment and decree in OS No. 36 of 2018, dated 20.03.2020 passed by the Ist Additional Subordinate Judge, at Villupuram.

¶13

For Appellant : Mr.R.Ashokan

¶14

For Respondent : Mr. L.P.Balajiram

¶15

1

¶16

https://www.mhc.tn.gov.in/judis

¶17

SA. No.473 of 2024

¶18

JUDGMENT

¶19

This second appeal has been filed to set aside the judgment and decree passed in Appeal suit No. 9 of 2021 by the Principal District Judge at Villupuram, dated 12.07.2022 confirming the judgment and decree in OS No. 36 of 2018, dated 20.03.2020 passed by the Ist Additional Subordinate Judge, Villupuram.

¶20

The appellant herein is defendant in suit in O.S No. 36 of 2018 filed by the respondent herein/plaintiff before the I Additional Judge, Villupuram, for the relief of recovery of money based on the promissory note dated 10.01.2017. The said suit was decreed by the Trial Court, against which the defendant filed the appeal in AS No.9 of 2021, after considering the oral and documentary evidence the first appellate Court dismissed the appeal by confirming the findings of the Trial Court.

¶21

Challenging the concurrent findings of the Courts below the appellant/defendant filed this appeal.

¶22

The learned counsel for the appellant submitted that both the Courts below failed to consider the suit promissory note, which itself forged one and on naked eye it could be inferred, though there is no steps was

¶23

2

¶24

https://www.mhc.tn.gov.in/judis

¶25

SA. No.473 of 2024

¶26

taken to sent the promissory note for forensic lab. Further, he would submit

¶27

that he has not borrowed loan from the plaintiff on the contrary, he borrowed the loan only Rs.10,000/- as hand loan for that he ready to supply bricks. Thereafter, the dispute arosed in respect of purchasing brick. Aggrieved that plaintiff forged the signature of the defendant fabricating the suit promissory note made false claim of Rs.1 lakhs as if he borrowed from him. But the Trial Court failed to take note of the fact that plaintiff has not examined the scribe of the promissory note when the execution was strongly denied by the defendant, since the defendant denied its execution the first appellate Court also erroneously confirmed the findings of the Trial court. Hence, he prays to allow this appeal.

¶28

This court admitted the second appeal with the following substantial questions of law:

¶29

i. Whether the suit promissory note is proved as per the manner known to law ?

¶30

The learned counsel for the respondent/plaintiff submitted that on 10.01.2017 a sum of Rs.1,10,000/- was borrowed by the appellant/defendant in order to dig a bore well and for his business purpose and agreed to repay 3

¶31

https://www.mhc.tn.gov.in/judis

¶32

SA. No.473 of 2024

¶33

the same with interest, executed a suit promissory note on demand but he failed to repay amount. Hence, he filed the suit.

¶34

Further, he would submitted that though the defendant denied his signature in the suit promissory note, he has not taken any steps to send the same to the forensic laboratory and the same was rightly observed by the courts below. On the other hand, the respondent/plaintiff proved the execution of the promissory note by examining P.W.2 as attestor of the said promissory note but as categorically stated that after borrowing, the lender defendant/respondent executed the suit promissory note and the plaintiff proved the execution of the promissory note. Accordingly suit was decreed and the same was confirmed by the appellate court/

¶35

The foremost objection raised by the appellant is that execution of the promissory note has not been proved by the respondent/plaintiff and also contend that on bare perusal of the promissory note itself it could be inferred that it is fabricated document no evidence to confirm the signature found in the promissory note. Though there is no forensic report in respect of promissory note Ex.A1.

¶36

The learned counsel for the appellant pointed out that the averments in the promissory note itself proves that it is fabricated 4

¶37

https://www.mhc.tn.gov.in/judis

¶38

SA. No.473 of 2024

¶39

documents.

¶40

Considering the both side submissions, the initial burden is on the plaintiff to prove the loan borrowed by the defendant/appellant by executing promissory note. On perusal of P.W.1, he deposed that for the purpose of the brick klin business the defendant/appellant herein borrowed the loan and said promissory note was executed by one N.Kasinathan and it was witnessed by P.w.2/Chandrasekar and thereafter the defendant signed in the said promissory note as well as over the stamp. To support his contention, the plaintiff relied the P.W.2 but as a attestor of the suit promissory note as per his evidence, stated that at request of the plaintiff he went there and in their presence the defendant borrowed the loan. In chief examination, he stated that in his presence promissory note was executed. During cross examination he stated that suit promissory note was executed by the defendant somewhere else and he was not present at the time of execution of promissory note/Ex.A1. Therefore, the evidence of P.w.2 not support the case of the plaintiff in respect of execution of promissory note and the alleged Kasinathan examined on the side of the plaintiff. Ex.A1 promissory note reads thus:

¶41

5

¶42

https://www.mhc.tn.gov.in/judis

¶43

SA. No.473 of 2024

¶44

...... vGjpbfhLj;j gpuhkp!hp nehl;L vd;dbtd;why; ehsJ njjpapy; j';fsplk; ehd; br';fy; tpahghuj;jpw;fhft[k; mtru epkpj;jk; fhuzkhft[k; fldhf buhf;fk; bgw;Wf;bfhz;lJ U:gha; 1.10.000 ,e;j U:gha; xU yl;rj;jp gj;jhapuj;jpw;f;Fk; ,d;W Kjy; ehd; xd;Wf;F E}w;Wf;F tl;o U:gha;////////////////////

¶45

Therefore, the recitals of the promissory note shows that defendant himself executed promissory note. As per PW.1, it was executed by one Kasinathan but he was not examined. Furthermore, on perusal of the promissory note, near the signature of the scribe Kasinathan it is mentioned as 10.11.2017. In fact, the plaintiff stated that the promissory note was executed on 10.01.2017, So there is discrepancy in the date of execution of promissory note. As per P.W.2 evidence, he was not aware where the promissory note was executed. When the defendant totally denying the promissory note, the plaintiff bound to prove the scribe of the promissory note but he failed. The evidence of P.W.2 not supported the case of the plaintiff in respect of execution of the suit promissory note. Further, the date is overwritten in the promissory note which has not been properly explained by the plaintiff. As per the promissory note averments he borrowed the loan for Brick kiln business but in the plaint the plaintiff stated the defendant borrowed the loan for digging Well. Therefore, lot of contradictions in the

¶46

6

¶47

https://www.mhc.tn.gov.in/judis

¶48

SA. No.473 of 2024

¶49

plaint and in promissory note , which has not been explained properly. So, it probablise the case of the defendant that the suit promissory note was fabricated by the plaintiff for unlawful gains. Further the execution of the promissory note also not been proved properly. On perusal of the promissory note itself shows that signature of K.Sekar in stamp as well as under the stamp is totally differs. Therefore, in its entirety, in the minds of the Court, it creates the doubt over the execution of the promissory note by the defendant and plaintiff failed to prove his case. Thus, the issue is answered. Accordingly, appeal is allowed. The judgement and decree passed by the Courts below is set aside. Thus, suit is dismissed. No costs. Consequently, connected petition(s), if any, is/are closed.

18.03.2025

pbl

To

The Additional District Judge, (Fast Track Court-V). 2. The VIII Assistant Judge, City Civil Court, Chennai. 3.The Section Officer, V.R Section, High Court, Madras.

¶54

7

¶55

https://www.mhc.tn.gov.in/judis

¶56

SA. No.473 of 2024

¶57

T.V.THAMILSELVI,J.

¶58

Pbl

¶59

SA. No. 473 of 2024 & CMP No. 14549 of 2024