Madras High Court
Bharathi Credit And Investments ... vs S.Seeniraja Velu on 9 December, 2011
Author: M.Venugopal
Bench: M.Venugopal
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 09/12/2011 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL S.A.(MD)No.654 of 2006 Bharathi Credit and Investments Private Limited, Kovilpatti, through its Managing Director, A.Sankaranarayanan. ... Appellant/Respondent/Plaintiff Vs S.Seeniraja Velu ... Respondent/Appellant/Defendant Prayer Second Appeal is filed under Section 100 of Civil Procedure Code, against the Judgment and Decree dated 12.08.2005, made in A.S.No.10 of 2005, on the file of the Learned Principal District Judge, Thoothukudi, by reversing the Judgment and Decree dated 17.08.2004 made in O.S.No.105 of 1999 !For Appellant ... Mr.S.Kadarkarai ^For Respondent ... Mr.Hema Karthikeyan :JUDGMENT
The Appellant/Plaintiff has preferred this Second Appeal as against the Judgment and Decree dated 12.08.2005 in A.S.No.10 of 2005, passed by the Learned Principal District Judge, Thoothukudi, in reversing the Judgment and Decree dated 17.08.2004 in O.S.No.105 of 1999, passed by the Learned Subordinate Judge, Kovilpatti.
2. The Plaint Averments:
The Appellant/Plaintiff is a Registered Private Limited Company, bearing Registration No.18.32204/95. The Appellant/Plaintiff, on 19.12.1996 gave a sum of Rs.90,000/- in cash to the Respondent/Defendant and the same has been received by the Respondent/Defendant on 19.12.1996 itself by affixing his signature and executed a pronote in favour of the Appellant/ Plaintiff. The Respondent/Defendant for the sum of Rs.90,000/- received by him from the Appellant/Plaintiff, has agreed to pay interest at Rs.2/- for Rs.100/- per month. The Respondent/Defendant has not paid any amount towards principal or interest towards the loan amount. The Appellant/Plaintiff, on 20.05.1997, issued a lawyer's notice to the Respondent/Defendant, since the Respondent/Defendant has not paid the loan amount in spite of repeated demands. However, the Respondent/Defendant has given a reply dated 12.06.1997 mentioning wrong details and false particulars. A rejoinder has been issued by the Appellant/Plaintiff to the reply notice sent by the Respondent/Defendant. In spite of the same, the Respondent/Defendant is not paying the amount and procrastinating the same.
(ii) In the reply notice, the plea taken by the Respondent/Defendant is that he has not signed in the pronote and the said pronote is a false one. In fact, the Respondent/Defendant for his urgent necessity has received a sum of Rs.35,000/- from the Appellant/Plaintiff and executed a pronote on 05.01.1996.
The said loan amount has been repaid by the Respondent/Defendant and he has taken back the said pronote. Subsequently on 19.12.1996, the Respondent/Defendant has received a sum of Rs.90,000/- in cash on 19.12.1996 and executed a pronote. Linking Iyyappan's Son Mohan Bharathi's appointment and the present pronote outstanding amount and connecting the same and further, at the instance of Iyyappan, the Appellant/Plaintiff is acting are all not correct. R.A.Iyyappan mentioned in the notice is a person who has left from the office of the Appellant/Plaintiff. There is no connection between Iyyappan and the Appellant/Plaintiff's office. Hence, the Appellant/Plaintiff has filed a suit for recovery of a sum of Rs.1,50,780/- from the Respondent/Defendant together with interest at 12% p.a. and costs.
3. The Written Statement Pleas:The suit filed by the Appellant/Plaintiff is an unjust one. The Appellant/Plaintiff is not entitled to get any relief. The plaint is not maintainable in law and justice. It is not correct to state that the Appellant/Plaintiff is a duly Registered Private Limited Company etc. It is an absolute lie to state that the Respondent/Defendant for meeting out his family expenses and wipe out the loan, has demanded a loan of Rs.90,000/- in cash from the Appellant/ Plaintiff and for the said loan of Rs.90,000/-, on 19.12.1996 executed a pronote in favour of the Appellant/Plaintiff etc.
(ii) The document filed by the Appellant/Plaintiff along with the plaint is not a pronote. There is no necessity for the Respondent/Defendant to execute a pronote to and in favour of the Appellant/Plaintiff. The Respondent/Defendant has not executed the plaint pronote and has not signed in the same. The suit pronote has no consideration. The pronote is a forgery. The said pronote has been a created one. The Respondent/Defendant's name is not S.Seeni Rajavelu. The Appellant/Plaintiff has given the name of the Respondent/Defendant in a wrong fashion. The Respondent/Defendant's name is Seeni.Rajavelu and used to sign like that only.
(iii) As a matter of fact, the Respondent/Defendant is a Secretary of the Kovilpatti Housing Society. In the said Society, one R.A.Iyyappan of the Appellant/Plaintiff has been the President. The said R.A.Iyyappan has demanded a loan of Rs.35,000/- for himself and since if he obtains a loan from the Appellant/Plaintiff's Company, the same will not be proper. For the said R.A.Iyyappan's loan, it has been agreed in the task that the Respondent/Defendant has to execute a pronote for Rs.35,000/- in favour of the Appellant/Plaintiff and that the said amount will have to be repaid by R.A.Iyyappan. On that basis, R.A.Iyyappan has received a sum of Rs.35,000/- and executed a pronote for Rs.35,000/- during March 1996. For the said pronote, the Respondent/Defendant has not received any amount.
(iv) Thereafter, on 14.03.1997, the aforesaid Rs.35,000/- has been demanded from the Respondent/Defendant by the Appellant/Plaintiff Sankaranarayanan through a letter and in that, the Appellant/Plaintiff has admitted that R.A.Iyyappan has to pay the money. Since, the said Iyyappan has refused to pay the amount, since the loan is in the name of the Respondent/Defendant, the Appellant/Plaintiff has written a letter that it has been paid only by the Respondent/Defendant. When the Respondent/Defendant enquired Iyyappan about the pronote, he stated that the said pronote has been settled. From the above facts, it is clear that the pronote dated 19.12.1996 is an untrue one and it has been created. Apart from this, Iyyappan's son Mohan Bharathi has been working in the Society where the Respondent/Defendant has been serving. Mohan Bharathi's illegal appointment has been objected by the Auditor and since the said Mohan Bharathi has to repay the salary, on 19.01.1998, Mohan Bharathi has been removed from the Society. The suit has been filed falsely at the instigation of R.A.Iyyappan. The suit as framed by the Appellant/Plaintiff is not maintainable and valid one. There is no cause of action for filing of the suit. The Court fee paid by the Appellant/Plaintiff is not proper.
4.Before the trial Court, in the main suit 1 to 2 issues and one additional issue have been framed for determination. On behalf of the Appellant/Plaintiff, witnesses P.W.1 to P.W.3 have been examined and Ex.A.1 to A.25 have been marked. On the side of the Respondent/Defendant, witness D.W.1 has been examined and Ex.B.1 has been marked. On the Court side, Ex.X.1 to X.4 have been marked.
5.The trial Court after contest, on an appreciation of oral and documentary evidence available on record, has come to a resultant conclusion in the suit that the Appellant/Plaintiff has proved that the Respondent/Defendant received a sum of Rs.90,000/- and executed Ex.A.2 pronote dated 19.12.1996 and further directed the Respondent/Defendant to pay a sum of Rs.1,50,780/- to the Appellant/Plaintiff as per plaint together with interest at 6% p.a. from the date of filing of the plaint till the date of realisation and decreed the suit with costs.
6.Feeling aggrieved against the Judgment and Decree of the trial Court, dated 17.08.2004 in O.S.No.105 of 1999, passed by the Learned Subordinate Judge, Kovilpatti, the Respondent/Defendant as an aggrieved person, has projected A.S.No.10 of 2005, on the file of the First Appellate Court viz., the Learned Principal District Judge, Tuticorin.
7.The Learned First Appellate Court viz., the Learned Principal District Judge, Tuticorin, in A.S.No.10 of 2005, on 12.08.2005, has passed the Judgment holding that the Appellant/Plaintiff has not proved that the Respondent/Defendant has received a sum of Rs.90,000/- and executed Ex.A.2 pronote dated 19.12.1996 and resultantly allowed the Appeal with costs, thereby setting aside the Judgment and Decree passed by the trial Court viz., the Learned Subordinate Judge, Kovilpatti in O.S.No.105 of 1999, dated 17.08.2004 and dismissed the suit with costs.
8.Being dissatisfied with the Judgment and Decree of the First Appellate Court in A.S.No.10 of 2005, dated 12.08.2005, the Appellant/Plaintiff as an aggrieved person, has projected this Second Appeal before this Court.
9.At the time of admission of the Second Appeal, this Court has formulated the following Substantial Questions of Law for determination.
"(a) Whether the lower Appellate Court is correct in dismissing the suit, when the Court has come to the conclusion that the suit promissory note Ex.A.2, dated 19.12.1996, is genuine and the signature of the Defendant is also accepted?
(b) Whether the lower Appellate Court is correct in dismissing the suit, when P.Ws.2 and 3 deposed about the execution of the promissory note and the consideration received by the Defendant is genuine?".
10. The Contentions, Discussions and Findings on Substantial Questions of Law (a) and (b):
The Learned Counsel for the Appellant/Plaintiff submits that the First Appellate Court has held that Ex.A.2 pronote is a genuine one and that there is no variation in the signature of the Defendant/Respondent, but wrongly dismissed the suit.
(ii) Advancing his arguments, it is the submission of the Learned Counsel for the Appellant/Plaintiff that the First Appellate Court has committed an error in holding that the Appellant/Plaintiff has not maintained the account in a proper manner and the same is unsustainable in the eye of Law.
(iii) Expatiating his contentions, the Learned Counsel for the Appellant/Plaintiff contends that the First Appellate Court, after having accepted the Appellant/Plaintiff's claim on the basis of evidence of P.W.3 handwriting expert that the Respondent/Defendant put his signature in Ex.A.2 suit pronote dated 19.12.1996, ought to have decreed the suit in his favour.
(iv) Per contra, it is the contention of the Learned Counsel for the Respondent/Defendant that the First Appellate Court, in its Appeal Judgment, has rightly held that the Appellant/Plaintiff/Company has not regularly maintained the accounts and ultimately held that the Appellant/Plaintiff has not proved the execution of the suit pronote by the Respondent/Defendant and consequently allowed the appeal, thereby setting aside the Judgment and Decree of the trial Court dated 17.08.2004, in O.S.No.105 of 1999, in decreeing the suit. As a matter of fact, the First Appellate Court has dismissed the suit with costs.
(v) In the present case, it is useful for this Court to make a reference to the evidence of witnesses P.W.1 to P.W.3 and D.W.1 for fuller and better appreciation of the merits of the case.
(vi) P.W.1 (Managing Director of the Appellant/ Plaintiff/Company) in his evidence has deposed that the Respondent/Defendant in Appellant/Plaintiff/ Company has received a loan of Rs.90,000/- for which he executed Ex.A.2 pronote dated 19.12.1996 and at the time of execution of pronote, two witnesses Sowri Rajan and Kandasamy have been present and they signed in Ex.A.2 pronote and the witnesses have seen the Respondent/Defendant putting his signature and further, the Respondent/Defendant has seen the witnesses affixing their signature.
(vii) It is the further evidence of P.W.1 that the Respondent/Defendant has received a sum of Rs.90,000/- mentioned in the pronote and that the pronote has been written by one Parasuraman, who has also signed in Ex.A.2 pronote as scribe and witness and he has also seen the Respondent/Defendant putting the signature in the pronote.
(viii) Added further, it is the evidence of P.W.1 that the sum of Rs.90,000/- received on 19.12.1996 has been entered in the Day Book at page 29, which portion is Ex.A.3 and this detail has been mentioned in the Ledger Note Book at page 52 as Kovilpatti S.Seeni Rajavelu S/o S.Seenivasa Naicker, paid a principal of Rs.90,000/- which is Ex.A.4 and even prior to the suit loan, the Respondent/Defendant has given the loan, which details are seen in page 21 of the Day Book relating to the period from 01.07.1995 till 31.03.1996, which is Ex.A.5 and Ex.A.6 is the Ledger entry showing that a sum of Rs.35,000/- has been paid on 05.01.1996 at page 26 of the Ledger relating to the period from 01.07.1995 till 31.03.1996, in the name of Kovilpatti S.Seeni Rajavelu and the sum of Rs.35,000/- together with interest of Rs.10,767/- has been paid by the Respondent/Defendant on 25.03.1997 and the aforesaid amount detail is seen in Day Book at page 35 relating to the period from 01.04.1996 till 31.03.1997, which portion is Ex.A.7 and the loan of Rs.35,000/- together with interest of Rs.10,767/- paid by the Respondent/Defendant is seen in the income Leger at page 25, which is Ex.A.8 and in page 34, it is entered as received a sum of Rs.35,000/-, which is Ex.A.9.
(ix) P.W.1 in his evidence goes on to add that K.Kandasamy one of the Directors of the Appellant/Plaintiff/Company has signed as witness in Ex.A.2 pronote and that no certificate has been produced to show that the scribe of the pronote has expired and in the Appellant/Plaintiff/Company, pronote forms are printed and kept like that of Ex.A.2 pronote and that no Partner from the Appellant/Plaintiff/Company has left and presently, R.A.Iyyappan is also remained as a Partner and that a sum of Rs.90,000/- has been paid to the Respondent/Defendant on 19.12.1996 from the money of the Appellant/Plaintiff/Company and that the said amount has been paid after receiving it from outside.
(x) That apart, it is the evidence of P.W.1 that in the plaint it is mentioned that the Respondent/Defendant has received a sum of Rs.35,000/- for his urgent necessity from the Appellant/Plaintiff/ Company and executed a pronote dated 05.01.1996 and the later, the suit amount has been repaid and thereafter, on 19.12.1996, a cash of Rs.90,000/- has been received and a promissory note has been executed etc. It is also the evidence of P.W.1 that he has stated in his evidence on 19.12.1996, the Respondent/Defendant has paid the interest amount for Rs.35,000/-.
(xi) Also, P.W.1 in his evidence proceeds to state that the sum of Rs.90,000/- has been received from various persons and therefore, he is not in a position to state that who are all those persons.
(xii) P.W.2 (first witness to pronote) in his evidence has deposed that the Respondent/Defendant from the Appellant/Plaintiff/Company has received a loan of Rs.90,000/- and executed a pronote, in which he has signed as a witness and in Ex.A.2, it is his signature and he enquired with the Respondent/Defendant as to whether he has received the cash, for which he replied that he has received and only thereafter, the Respondent/Defendant has affixed his signature over the stamp and later he put his signature and at that time,Kandasamy has also been present and he has also affixed his signature and the second signature in a pronote as witness belongs to the said Kandasamy and the scribe Parasuraman, who has written the pronote,has expired
(xiii)P.W.3 (Handwriting expert) in his evidence has deposed that he has received a letter on 06.01.2004 from the Kovilpatti Subordinate Court along with certain documents for the purpose of his investigation/examination and the disputed signature in the documents has been marked as "Q" and the sample signatures have been marked as "S" and the signature Seeni.Rajavel in pronote dated 19.12.1996 has been marked as "Q" and Ex.S.1 to S.22 are the signature of Seeni Rajavelu who has signed in the salary disbursement document and these signatures are in the salary register from page 74 to 102 and the sample signatures of Seeni Rajavelu has been separately examined and when compared, it has come to be known that it has been written by a single person and subsequently when the disputed signature "Q" has been examined, the signature viz., Ex.S.1 to S.22 made by the person has himself put the disputed signature "Q" and the similarity of the signature in all the signatures are one and the same has seen from examination and his report is Ex.X.1 and the salary register is Ex.X.2 for the period from September 1993 to February 1997 and the signature of Seeni Rajavelu in the Salary Register from page 74 to 102 is Ex.X.3 (22 signatures) and the disputed signature subject to examination is Ex.X.4.
(xiv) P.W.3 (in his cross examination) has deposed that he is tendering evidence before the Court for the past twenty years and the entire documents will be examined at the forensic side laboratory and that the signature examined is 75% clear signature and 25% signature is not clear.
(xv) D.W.1 (Respondent/Defendant) in his evidence has stated that the Appellant/Plaintiff is a partner of the Appellant/Plaintiff/Company and that along with Ex.President of their Society R.A.Iyyappan, the Managing Director of the Appellant/Plaintiff/Company Sanakara Narayanan used to come to his Society and therefore, he has known Sanakara Narayanan and that the Appellant/Plaintiff Sankara Narayanan and R.A.Iyyappan worked as Teachers and in the Appellant/Plaintiff/Company, R.A.Iyyappan is also a partner and R.A.Iyyappan's Son Mohan Bharathy worked in their Housing Society during the period from 1996 till 1998 and since Mohan Bharathy has no co-operative training etc., he informed Mohan Bharathy that since he has no co-operative training certificate, he cannot remain in job and at that time in the co-operative society, there has been a Special Officer and the Special Officer has removed Mohan Bharathy from service and R.A.Iyyappan, Ex.President of the Housing Society Sangam is acquainted to him and that he has not received the loan from the Appellant/Plaintiff/Company.
(xvi) It is the evidence of D.W.1 that since R.A.Iyyappan has been the partner of the Appellant/Plaintiff/Company, he cannot take loan from the Company and requested him to take loan in his name and accordingly, for R.A.Iyyappan, he has taken a loan from the Appellant/Plaintiff/Company and that he has taken a loan of Rs.35,000/- during March 1996 and except the aforesaid loan of Rs.35,000/- taken from the Appellant/Plaintiff/Company, he has not taken any loan from the Appellant/Plaintiff/Company and also not executed different pronote and further that he has not executed Ex.A.2 pronote. (xvii) D.W.1 in his evidence has further deposed that during March 1996, R.A.Iyyappan informed that he will pay the sum received on his behalf and he enquired with R.A.Iyyappan as to whether he has been paying the money and informed that he is paying the money and that the Managing Director of the Appellant/Plaintiff/Company Sankara Narayanan has written Ex.B.1 letter in regard to the amount either to be paid by the Respondent/Defendant or by R.A.Iyyappan and in this regard both of them will have to jointly talk together and settled the account.
(xviii) D.W.1 in his evidence goes on to add that during March 1996, the execution of pronote for Rs.35,000/- by him is admitted, but when the loan of Rs.35,000/- has been paid, the concerned pronote has not been handed over to him, after the amount being paid and that the Appellant/Plaintiff/Company's Managing Director Sankara Narayanan has created Ex.A.2 pronote for R.A.Iyyappan. (xix) Before the trial Court on behalf of the Appellant/Plaintiff, the computer receipts Ex.A.13 have been marked to show that every now and then amount has been remitted before the Registrar of Companies and these receipts would clearly point out that the Appellant/Plaintiff/Company is in M.S.P.S.Complex at Door No.374/2 and it is functioning from that address. Ex.A.3 to A.9 refers to entries made in the Day Book at pages 21, 26, 35, 25 and 34 respectively which point out that the amount of Rs.35,000/- has been taken from the Appellant/Plaintiff/Company and that the Respondent/Defendant has executed a pronote and these details are mentioned in Ex.A.3 to A.9 as stated supra. Just because the suit Ex.A.2 pronote sum of Rs.90,000/- has not been reflected in the Daily Ledger or the accounts of the Appellant/Plaintiff/Company, it cannot be construed that Ex.A.2 pronote has not been proved in the manner known to Law. (xx)A perusal of Ex.A.2 pronote shows that it is a printed form in Tamil stating that it is a pronote and certain blank portions of the pronote has been filled in Tamil. The disputed signature of the Respondent/Defendant over the revenue stamp in Ex.A.2 pronote dated 19.12.1996 is marked as "Q". In Ex.A.2 pronote, the Respondent/Defendant has signed over the revenue stamp. Ex.A.2 pronote is for Rs.90,000/- and the same has been executed in favour of the Managing Director of the Appellant/Plaintiff/Company A.Sankara Narayanan by the Respondent/Defendant. In Ex.A.2, two witnesses Sowrirajan and Kandasamy have signed. Unfortunately, the scribe and witness to pronote viz., K.Parasuraman has expired. P.W.2 in his evidence has deposed that Ex.A.2 pronote is a true one and that the Respondent/Defendant has received a loan of Rs.90,000/- on 19.12.1996 from the Appellant/ Plaintiff/Company and further that the witnesses to pronote have signed in the said document and that the Appellant/Plaintiff has seen the witnesses signing in the pronote.
(xxi)It is also the evidence of P.W.2 (first witness to pronote) that the Respondent/Defendant has received a sum of Rs.90,000/- as loan from the Appellant/Plaintiff/Company and executed Ex.A.2 pronote, in which he has signed as first witness and also the second witnesses Kandasamy has signed in the pronote etc. (xxii)Even in cross examination, P.W.2 has deposed that at the time when the Respondent/Defendant receiving the money from the Appellant/ Plaintiff/Company, he has seen the same. Moreover, P.W.2 has seen the Respondent/Defendant affixing his signature at the time of receiving the money. Therefore, it is crystal clear from the evidence of P.W.1 (Managing Director of the Appellant/Plaintiff/Company) and P.W.2 (first witness to Ex.A.2 pronote) that the Respondent/Defendant has received a sum of Rs.90,000/- from the Appellant/Plaintiff/Company and executed Ex.A.2 pronote for Rs.90,000/- on 19.12.1996.
(xxiii)P.W.3 (Handwriting expert) in his evidence has deposed that the disputed signature has been marked as "Q" and the sample signatures have been marked as "S" and when he has examined the disputed signature "Q", he is of the opinion that S.1 to S.12 sample signatures written by a person alone has written the disputed signature and all the signatures are remained the same and in cross examination, he has denied that the opinion tendered by him that the disputed signature and the sample signatures are written by the same person are not a correct one.
(xxiv)As a matter of fact, although P.W.3 in his cross examination has stated that the signature examined is 75% clear signature and 25% unclear signature, cannot be taken the advantage of by the Respondent/Defendant in the present case, because of the simple fact that the handwriting expert has opined in Ex.X.1 report that the disputed signature and the sample signatures are written by the one and the same person, in the considered opinion of this Court. (xxv)It is the evidence of D.W.1 that from their Society, a letter dated 16.02.1995 Ex.A.18 has been written to P.Ayyalusamy and also on 10.11.2000 from their Society, P.Ayyalusamy received a sum of Rs.1,400/- for which a cash receipt Ex.A.19 has been issued and also on 10.10.2000 another cash receipt for Rs.1,400/- has been issued, which is Ex.A.20 and Ex.A.21 is the cash receipt for Rs.3,440/- on 11.11.1996 and the adjustment receipt for Rs.5,900/- is Ex.A.22 dated 11.11.1996 and Ex.A.23 is the cash receipt for Rs.3,000/- dated 12.12.1997 and on 16.08.2000, another cash receipt for Rs.1,400/- is Ex.A.24 and that he has seen the aforesaid receipts before the trial Court at the time of evidence and these exhibits A.18 to A.24 receipts are true receipts and the signatures in these receipts are his signatures.
(xxvi)In the case on hand before us, a sum of Rs.35,000/- taken as loan by the Respondent/Defendant has been repaid by him on 25.03.1997 and in respect of the loan of Rs.90,000/- taken by the Respondent/Defendant on 19.12.1996, the same has remained unpaid. To show that the accounts have been maintained in the regular course of transaction and in the ordinary of business of the Appellant/Plaintiff/Company, the loan taken by the Respondent/Defendant has been made mentioned of in the Day Book relating to the period 01.07.1995 to 31.03.1996 and the same is Ex.A.5 and the amount of Rs.35,000/- received by the Respondent/Defendant is seen in Ex.A.6 Ledger at page 26 relating to the period from 01.07.1995 till 31.03.1996 and also a sum of Rs.10,767/- paid as interest amount by the Respondent/Defendant on 25.03.1997 has been made mentioned of in the Day Book at page 35 for the period from 01.04.1996 till 31.03.1997, which is marked as Ex.A.7 and the interest receipt has been mentioned in the Ledger Book at page 25 which is Ex.A.8. The principal sum of Rs.35,000/- is mentioned in page 24 as income receipt which is marked as Ex.A.9. All these entries unerringly point out that the Respondent/Defendant has received a sum of Rs.35,000/- from the Appellant/Plaintiff/Company on earlier occasion and has repaid the same and settled the accounts thereto. (Notwithstanding the fact, a plea has been taken by the Respondent/Defendant that the said sum of Rs.35,000/- has been taken by him from the Appellant/Plaintiff/Company, not for himself, but for one R.A.Iyyappan).
(xxvii)Indeed, the said plea that the Respondent/Defendant has taken a loan of Rs.35,000/- for R.A.Iyyappan from the Appellant/Plaintiff/Company has not been proved to the subjective satisfaction of this Court on behalf of the Respondent/Defendant as opined by this Court.
(xxviii)Even though, the Respondent/Defendant has taken a plea that he has not executed the said Ex.A.2 pronote for Rs.90,000/- to and in favour of the Appellant/Plaintiff/Company and further the said Ex.A.2 pronote is a concocted one and that P.W.1 (Managing Director of the Appellant/Plaintiff/ Company) has fabricated or created the suit pronote. It is to be pointed out that D.W.1 (Respondent/Defendant) is not a novice. On the other hand, he is serving as a Secretary at the Kovilpatti Co-operative Housing Society. Furthermore, Ex.A.2 pronote is a printed one in Tamil with certain blank portions, which have been filled up in Tamil.
(xxix)Though the Learned Counsel for the Respondent/Defendant placed reliance very much on the variance in respect of the pleadings and evidence viz., that of the plaint and evidence of P.W.1 in regard to the loan transaction of Rs.35,000/- and the same has been paid later and relied upon the Judgment of the Honourable Supreme Court in Kashinath (Dead) though LRS V. Jaganath reported in (2003)8 Supreme Court Cases 740, wherein it is held that such evidence cannot be relied upon etc., it is to be pointed out by this Court that the suit is not filed for the earlier loan transaction of Rs.35,000/- and the subject matter of the present suit revolves upon Ex.A.2 pronote dated 19.12.1996 for Rs.90,000/-. Therefore, the variance in plaint that of pleadings and evidence of P.W.1 is of little consequence affecting the merits of the present case. (xxx)At this juncture this Court pertinently points out that Section 91 of the Indian Evidence Act relates to evidence of terms of contract, grants and other disposition of properties reduced to form of document. This section forbids proving the contents of writing otherwise than by writing itself. It is in reality declaring a principle of the substantive law, namely, in the case of a written contract, oral evidence is excluded when a document thus exists and more so, when the Law enjoins the matter to be reduced in the form a document. Section 92 prohibits admission of any evidence for the purpose of contradicting, varying, adding to or subtracting from the terms of such document. (xxxi)When a written document is available, it is to be produced as the best evidence to prove its contents. It is true that the expression oral evidence as mentioned in Section 91 and 92 of the Indian Evidence Act includes not only one adduced by examining on behalf of such party, but also cross examination of witnesses by either side, in relation to it. (xxxii)Be that as it may, in the upshot of qualitative and quantitative discussions mentioned supra and on a consideration of the available and oral documentary evidence on record, this Court comes to an inevitable conclusion that the First Appellate Court viz., the Learned Principal District Judge, Tuticorin is not correct in dismissing the suit, when he has come to the conclusion that the pronote Ex.A.2 dated 19.12.1996 is a genuine and true one etc., and also that the First Appellate Court viz., the Learned Principal District Judge, Tuticorin is not correct in dismissing the suit when P.W.2 and P.W.3 have categorically deposed about the execution of pronote coupled with the evidence of P.W.1 and other documents marked in the present case. Also that it is proved by the Appellant/Plaintiff/Company that the Respondent/Defendant has received a cash consideration of Rs.90,000/- and executed the suit pronote in question, which is a genuine.
(xxxiii)In short, the view taken by the First Appellate Court inter alia to the effect that the Appellant/Plaintiff has not proved prima facie that the accounts of the Appellant/Plaintiff/Company are regularly maintained and are true etc., is not a legally valid and correct one in the eye of Law especially under the Indian Evidence Act, which enjoins that if the accounts of a Company are maintained properly and if they are kept in the course of ordinary business transaction, then the same is valid in law. Unfortunately, this vital legal aspect of the matter has not been adverted to by the First Appellate Court which has resulted in serious miscarriage of justice. Equally, the contra view taken by the First Appellate Court that Ex.A.2 pronote dated 19.12.1996 has not been proved by the Appellant/Plaintiff/Company is not based on proper appreciation of oral and documentary evidence available on record, in the considered opinion of this Court.
(xxxiv)Coming to the aspect of the Appellant/Plaintiff/Company claiming 24% interest for Ex.A.2 suit pronote dated 19.12.1996 for Rs.90,000/-, it is to be pointed out by this Court that in Ex.A.2 pronote, it is clearly mentioned that the Respondent/Defendant has received a sum of Rs.90,000/- as loan for meeting out his family expenses and to wipe out the loan. Section 34 of Civil Procedure Code deals with post litigation interest. Section 34 is a general procedural provision.
(xxxv) In this connection, this Court makes a useful reference to Section 34 of Civil Procedure Code which enjoins that the rate of current interest and future interest are within the discretion of the Court. Interest cannot be claimed as a matter of right. It is the discretion of the Court of Law to award interest. Further the grant of interest at contractual rate should be the normal rule. It cannot be lost sight of that Court of Law has discretion either to refuse interest or reduce the contractual rate of interest. But it ought to be based on sound and cogent reasons, as opined by this Court. A refusal of awarding interest is an exception. The quantum of interest which a Court of Law may award on a certain case is governed by the fact situation in a case. The Court is competent to reduce the rate of interest from the contractual rate, pendente lite and post decree interest at a lower rate or even refusing interest as per the decision C.Narayana Reddy V. State Bank of India (Agricultural Development), Hosur Branch, Hosur and Others reported in 2004(4) MLJ 53 (DB) at page 59.
(xxxvi)In the instant case, since the Respondent/Defendant has taken a loan of Rs.90,000/- from the Appellant/Plaintiff/Company as per Ex.A.2 pronote dated 19.12.1996 for meeting out his family expenses and to wipe out the loan, this Court exercising its discretion awards interest at the rate of 18% per annum for the suit Ex.A.2 pronote from 19.12.1996 till the date of realisation together with proportionate costs. Accordingly, the Substantial Questions of Law
(a) and (b) are answered in favour of the Appellant/Plaintiff/Company.
11.In the result, the Second Appeal is allowed in part, leaving the parties to bear their own costs. Consequently, the Judgment and Decree of the First Appellate Court viz., the Learned Principal District Judge, Tuticorin in A.S.No.10 of 2005 dated 12.08.2005 are hereby set aside to prevent an aberration of justice. Consequently, this Court directs the Respondent/Defendant to pay the suit pronote amount of Rs.90,000/- together with interest at the rate of 18% per annum from 19.12.1996 till the date of realisation together with proportionate costs. For making payment, the Respondent/Defendant is granted three months time.
To
1.The Principal District Judge, Turicorin.
2.The Subordinate Judge, Kovilpatti.