Madras High Court
S.Kumaresan vs S.Ramalingam on 15 December, 2021
Author: V. Bhavani Subbaroyan
Bench: V. Bhavani Subbaroyan
SA(MD)No.248 of 2015
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATE: 15.12.2021
CORAM
THE HON'BLE MRS.JUSTICE V. BHAVANI SUBBAROYAN
SA(MD)No.248 of 2015 &
MP(MD)No.1 of 2015
S.Kumaresan ... Appellant
vs.
S.Ramalingam ... Respondent
Prayer: Second Appeal filed under Section 100 of CPC to set aside the
Judgment and decree in AS.No.48/2005 dated 26.08.2013 on the file of the
District Court, Nagercoil modifying the Judgment and decree in OS.No.
97/2001 dated 20.04.2005 on the file of the I Additional Subordinate Court,
Nagercoil to the extent to which the same are objected to, decree the suit as
prayed for and allow the Second Appeal.
For Appellant : Mr.G.Ramanathan
For Respondent : Mrs.P.Jessi Jeevapriya
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https://www.mhc.tn.gov.in/judis
SA(MD)No.248 of 2015
JUDGMENT
This Second Appeal is filed to set aside the Judgment and decree in AS.No.48/2005 dated 26.08.2013 on the file of the District Court, Nagercoil modifying the Judgment and decree in OS.No.97/2001 dated 20.04.2005 on the file of the I Additional Subordinate Court, Nagercoil.
2. The case of the plaintiff in brief is as follows. The plaintiff and defendant are well known to each other. The defendant obtained loan of Rs.25,000/- from the plaintiff on 12.10.1990 and executed a promissory note as security. The defendant agreed to repay the principal without interest. Thereafter, the defendant had re-paid Rs.1,000/- on 12.05.1993, Rs.1000/- on 10.04.1996 and Rs.2,000/- on 10.01.1999, for which entries were made on the promissory note. Remaining sum of Rs. 21,000/- was not paid by the defendant. Subsequently, the defendant received Rs.25,000/- on 24.07.1998 for 24% interest, Rs.59,944/- on 15.10.1998 for 24% interest and executed promissory notes as securities. However, the defendant had neither paid the principal nor the interest. The defendant has to repay a sum of Rs.1,55,512.64/- to the plaintiff in total. 2/12 https://www.mhc.tn.gov.in/judis SA(MD)No.248 of 2015 The plaintiff sent a notice to the defendant on 06.02.2001 demanding the amount. On 08.02.2001, the defendant received the notice and sent a reply on 11.02.2001 with vague averments. Hence, the plaintiff filed a suit.
3. In the suit, the defendant filed a written statement and the brief facts are as follows.
The defendant purchased certain goods from the plaintiff for a sum of Rs.25,000/- and executed a promissory note on 12.10.1990 as security. The defendant paid the entire amount and asked the plaintiff to return the promissory note. However, the plaintiff stated that he lost the promissory note. Since the promissory note had expired, the defendant did not request the plaintiff to return the promissory note any further. The defendant settled the money for the goods received as early as in the year 1992. The plaintiff's statement that the defendant had re-paid Rs.1,000/- on 12.05.1993, Rs.1000/- on 10.04.1996 and Rs.2,000/- on 10.01.1999 is false. There was no necessity for the defendant to pay the amount in small dues. On 24.07.1998 and 15.10.1998, the defendant neither received any amount from the plaintiff nor executed any promissory note as security. The promissory notes alleged to be executed in this regard are forged ones. The 3/12 https://www.mhc.tn.gov.in/judis SA(MD)No.248 of 2015 defendant had received the notice sent by the plaintiff and had given a proper reply. The promissory note dated 12.10.1990 is an expired one and it is legally unacceptable. The plaintiff has no basis to file the suit. The suit is barred by limitation and prayed for dismissal of the suit.
4. Before the Trial Court, on the side of the plaintiff, PW1 and PW2 were examined and Exs.A1 to A10 were marked. On the side of the defendant, DW1 was examined. No document was marked on the side of the defendant. Forensic Laboratory Report was marked as Ex.C1.
5. On the basis of the rival pleadings on either side, the learned I Additional Subordinate Judge, Nagercoil has framed necessary issues and after evaluating both oral and documentary evidences, had dismissed the suit with costs on the grounds that (i) the promissory note, Ex.A1 executed by the defendant is an expired one and (ii) the signatures found in the promissory notes, Ex.A5 and A6 were not the signatures of the defendant. 4/12 https://www.mhc.tn.gov.in/judis SA(MD)No.248 of 2015
6. Aggrieved by the Judgment and decree passed by the Trial Court, the plaintiff filed an appeal in AS.No.48/2005 before the District Court, Nagercoil. The Appellate Court after hearing both sides and upon reappraising the evidences available on record, has partly allowed the appeal and modified the Judgment and decree passed by the Trial Court. The Appellate Court had concurred with the Trial Court in respect of the conclusions that the promissory note, Ex.A1 is an expired one and the signature found in the promissory note, Ex.A6 is not the signature of the defendant. However, the Appellate Court observed that since during his cross examination, the defendant admitted that the signature found in the promissory note, Ex.A5 is his signature, the plaintiff is entitled to get Rs. 25,000/- from the defendant under Ex.A5.
7. Challenging the Judgment and decree passed by the Appellate Court to a specific extent, the present Second Appeal has been filed. This Second Appeal was admitted by this Court on 07.04.2015 on the following substantial questions of law.
5/12 https://www.mhc.tn.gov.in/judis SA(MD)No.248 of 2015 "(a) Whether the lower Appellate Court has committed an error in law in holding that the claim made on the basis of Ex.A1 promissory note is barred by limitation without properly considering the endorsements marked as Ex.A2, Ex.A3 and Ex.A4?
(b) Whether the lower Appellate Court has committed an error in applying different yard-sticks to attach the evidentiary value of the expert's opinion regarding Ex.A5 and Ex.A6 promissory note"
8. Heard both sides and perused the materials available on record.
9. The learned counsel for the appellant / plaintiff would submit that this Second Appeal is filed against the Judgment of the Appellate Court in respect of rejecting the promissory notes under Ex.A1 and Ex.A6 alone. When the learned Judge had accepted the promissory note Ex.A5 based on the signature of the respondent / defendant, he ought to have accepted the promissory note Ex.A6 also. The learned Judge overlooked the fact that the signature under the promissory note Ex.A1 was admitted by the respondent / defendant and the fact that Exs.A2, A3 and A4 are payment receipts relating 6/12 https://www.mhc.tn.gov.in/judis SA(MD)No.248 of 2015 to the promissory note Ex.A1. If the learned Judge had considered the Exs.A2, A3 and A4, he would have automatically held that Ex.A1 was not barred by limitation. At this juncture, the learned counsel would submit that the respondent / defendant has filed an appeal before this Court in SA(MD)No.591/2014 against the decreed portion of the Appeal Suit and this Court dismissed the same on 17.06.2021. The learned counsel therefore prayed for allowing this appeal by accepting the promissory notes Ex.A1 and Ex.A6.
10. The learned counsel for the respondent / defendant would also concede to the fact that respondent / defendant filed an appeal before this Court and the same was dismissed. However, he would submit that both the Courts below after consideration of the oral and documentary evidences have come to a right conclusion that the promissory note Ex.A1 was barred by limitation and the promissory note Ex.A6 was not executed by the respondent / defendant. The Courts below have also assigned proper reasons for coming to such a conclusion and therefore, prayed for dismissal of the appeal.
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11. According to the appellant / plaintiff, the respondent / defendant received a sum of Rs.25,000/- from him on 12.10.1990 and executed a promissory note as security. Thereafter, towards re-payment of the amount, the respondent / defendant had paid Rs.1,000/- on 12.05.1993, Rs.1000/- on 10.04.1996 and Rs.2,000/- on 10.01.1999 and the appellant / plaintiff made entries for the same, which are marked as Exs.A2, Ex.A3 and Ex.A4 respectively. Hence, the promissory note, Ex.A1 is not barred by limitation. A perusal of Exs.A2, A3 and A4 shows that only the appellant / plaintiff had signed the entries made thereon and acknowledged the receipt of money. Those receipts were not duly counter signed by the respondent / defendant. When the Exs.A2, A3 and A4 were not signed by the respondent / defendant and those receipts were specifically denied by the respondent / defendant, they cannot be accepted as valuable documents for considering the case of the appellant / plaintiff that, based on Exs.A2, A3 and A4, the promissory note Ex.A1 is not barred by limitation. The Appellate Court has also considered this fact and concluded that since the respondent / defendant executed the promissory note Ex.A1 as early as in the year 1990 and the time limit was not extended by the respondent / defendant, the promissory note Ex.A1 is barred by limitation. This Court also concurs with the 8/12 https://www.mhc.tn.gov.in/judis SA(MD)No.248 of 2015 conclusion arrived by the Appellate Court in this regard and therefore, the first substantial question of law is answered against the appellant / plaintiff and held in favour of the respondent / defendant.
12. The further case of the appellant / plaintiff is that the respondent / defendant obtained Rs.25,000/- on 24.07.1998 and Rs.59,944/- on 15.10.1998 and executed promissory notes as securities which were marked as Exs.A5 and A6 respectively. However, the respondent / defendant, in the written statement, has denied the above fact and stated that he neither obtained any amount from the appellant / plaintiff on 24.07.1998 and 15.10.1998 nor executed the promissory notes marked as Exs.A5 and A6. The trial Court had sent the promissory notes Exs.A1, A5 and A6 to the Forensic Laboratory to get Expert opinion and based on the Forensic Laboratory Report, the trial Court had come to a conclusion that the signatures found in the promissory notes Exs.A5 and A6 are not that of the respondent / defendant.
13. However, the Appellate Court while deciding this issue has taken into consideration the cross examination of the respondent / defendant. The 9/12 https://www.mhc.tn.gov.in/judis SA(MD)No.248 of 2015 respondent / defendant who was examined as DW1 has admitted during his cross examination that the signature found in the promissory note Ex.A5 is his signature and the signature found in the promissory note Ex.A6 is not his signature. It is pertinent to point out here that the Second Appeal filed by the respondent / defendant, in respect of the decreed portion alone, has already been dismissed by this Court by observing that the issue which has been admitted need not be proved at all. According to the Judgment of the learned Single Judge, Ex.A5 is a document admitted by the respondent / defendant and it need not be proved at all.
14. In the present case on hand, the issue to be decided is only whether the promissory note Ex.A6 was executed by the respondent / defendant or not. In the written statement and during the cross examination, the respondent / defendant had denied the execution of the promissory note, Ex.A6. Therefore, the burden lies on the appellant / plaintiff to prove his case. However, the appellant / plaintiff was not able to prove that the signature in the promissory note Ex.A6 was the signature of the respondent / defendant by adducing proper evidence. In the absence of any evidence on the side of the appellant / plaintiff, the Appellate Court had come to a 10/12 https://www.mhc.tn.gov.in/judis SA(MD)No.248 of 2015 conclusion that the promissory note, Ex.A6 was not executed by the respondent / defendant, based on the Forensic Laboratory Report, Ex.C1. This Conclusion of the Appellate Court cannot be found fault with, when the appellant / plaintiff had failed to prove his case by letting in proper evidence. Accordingly, the second substantial question of law is answered against the appellant / plaintiff and in favour of the respondent / defendant.
15. In fine, this Second Appeal is dismissed without any order as to costs and the Judgment and decree, dated 26.08.2013 passed in A.S.No.48 of 2005, on the file of the District Court, Nagercoil, is confirmed. Consequently, the connected Miscellaneous Petition is closed.
15.12.2021 Index: Yes/No. Internet: Yes/No. mbi Note: In view of the present lock down owing to COVID 19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the Advocate/litigant concerned. 11/12 https://www.mhc.tn.gov.in/judis SA(MD)No.248 of 2015 V. BHAVANI SUBBAROYAN, J.
mbi To
1. The I Additional Subordinate Court, Nagercoil.
2. The District Court, Nagercoil.
3. The Record Keeper, VR Section, Madurai Bench of Madras High Court, Madurai.
SA(MD)No.248 of 2015
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