Madras High Court
Arumugam vs Ramachandarn on 29 January, 2013
Author: P.R.Shivakumar
Bench: P.R.Shivakumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 29.01.2013 CORAM THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR S.A.No.24 of 2013 & M.P.No.1 of 2013 Arumugam .. Appellant -Vs- Ramachandarn .. Respondent Second Appeal filed under section 100 of C.P.C against the judgment and decree dated 03.12.2011 in the A.S.No.183 of 2010 on the file of the learned II Additional Subordinate Judge, Villupuram confirming the judgment and decree dated 01.09.2009 passed in O.S.No.362 of 2007 on the file of learned Principal District Munsif, Ulundurpet. For appellant : Mr. J.R.K.Bhavanantham ----- JUDGMENT
The defendant in the original suit is the appellant in the second appeal. The respondent herein, as plaintiff, filed O.S.No.362 of 2007 for the recovery of a sum of Rs.1,04,734/- rounded to Rs.1,00,000/- consisting of Rs.85,000/- as principal component and Rs.19,734/- as interest component calculated at the rate of 9% p.a based on a promissory note from the date of lending till the date of filing of the suit. The suit was decreed by the trial Court by a judgment and decree dated 01.09.2009. On appeal, by a judgment and decree of the lower appellate Court dated 03.12.2011, the decree of the trial court was confirmed. As against the decree of the lower appellate Court confirming the decree passed by the trial Court, the present second appeal has been filed.
2. The respondent herein filed the suit making the following averments:
On 01.05.2005, the appellant herein/defendant borrowed a sum of Rs.85,000/- and executed a promissory note promising to repay the said amount along with an interest at the rate of 12% p.a. In spite of repeated oral demands and a demand made by a legal notice dated 07.08.2006, the appellant herein/defendant did not make payment. Though in the promissory note the appellant herein/defendant agreed to pay an interest at the rate of 12% p.a, in view of Madras Act 4 of 1938, the respondent /plaintiff would restrict his claim of interest to 9% p.a. As on the date of plaint, the interest calculated at the rate comes to Rs.19734/- and hence the appellant herein/defendant should be directed to pay a total sum of Rs.1,00,000/- (rounded from Rs.1,04,737/-) together with costs and subsequent interest.
3. The suit was resisted by the appellant herein/defendant by filing a written statement making the following contentions:
The suit promissory note was not executed by the appellant herein/defendant on 01.05.2005 and he did not borrow a sum of Rs.85,000/- from the respondent/plaintiff. The appellant herein/defendant borrowed a sum of Rs.15,000/- in the year 2000 and as demanded by the respondent/plaintiff handed over signed unfilled promissory notes each one for a sum of Rs.2,000/- and gave them to the respondent/plaintiff. Thereafter, the appellant herein/defendant was making payment of a sum of Rs.2,250/- pm as interest for the said amount of Rs.15,000/-. Thus, for a period of 24 months, he paid a total sum of Rs.54,000/- towards interest. When he had committed default in payment of interest for the months of March, April and May in 2002, the appellant herein/defendant was manhandled at a public place on his way to the Taluk Office by the respondent/plaintiff, pursuant to which the appellant herein/defendant chose to discharge the entire loan by making payment of a sum of Rs.6,750/- towards interest and Rs.15,000/- towards principal. Thus, he had paid a total sum of Rs.60,750/- towards interest besides the principal sum of Rs.15,000/-. At the time of final settlement of the said amount, the appellant herein/defendant demanded return of the unfilled signed promissory notes. The respondent/plaintiff informed him that the pronotes were available in his other house in Olliyampalayam. When the appellant herein/defendant met him at Olliyampalayam, the respondent/plaintiff informed him that the promissory notes were kept in his house at Ulundurpettai. Likewise he was dodging for over a month and at last the respondent/plaintiff gave back the blank promissory notes containing the signatures of the appellant herein/defendant. At that point of time, the respondent/plaintiff adumbrated that he would take revenge against the appellant herein/defendant. Pursuant to such adumbration, the respondent/plaintiff in the name of one Elangovan, Son of Chandran caused a notice to be issued on 07.11.2007 as if the appellant herein/defendant had borrowed a sum of Rs.95,000/- from the said Elangovan on 20.12.2006. For the said notice, proper reply was issed. Thereafter, the respondent/plaintiff fabricated the suit promissory note forging the signature of the appellant herein/defendant and came forward with the present suit to make wrongful gain. The suit promissory note was also tainted by fraud and undue influence. There is no cause action for the suit and the suit should be dismissed with compensatory cost.
4. Based on the above said pleadings, the learned trial Judge (Principal District Munsif, Villupuram) framed the following issues;
1) Whether the suit promissory note is forged by the plaintiff?
2) Whether the suit promissory note was executed by the defendant for valid consideration?
3) Whether plaintiff is entitled for the relief as prayed for?
4) To what other reliefs the plaintiff is entitled?
5. In the trial, three witnesses were examined as Pws 1 to 3 and three documents were marked on the side of the respondent herein/plaintiff. The appellant herein/defendant figured as the sole witness (DW1) and three documents were marked on his side.
6. The learned Principal District Munsif, on an appreciation of evidence, came to the conclusion that the plaint averments stood proved and that the defence plea of the appellant herein /defendant was not probable. Resultantly, the learned Principal District Munsif decreed the suit as prayed for with costs and granted a decree directing the appellant herein/defendant to pay a sum of Rs.1,00,000/- together with a Pendente lite interest at the rate of 9% per annum on the principal Rs.85,000/-) and a further interest at the rate of 6% per annum from the date of decree till realization. The said decree of the trial Court dated 01.09.2009 made in O.S.No.362 of 2007 was challenged before the lower appellate Court, namely the Court of the II Additional Subordinate Judge, Villupuram in A.S.No.183 of 2010. The learned lower appellate Judge, on a re-appreciation of evidence, by a judgment and decree dated 03.12.2011 confirmed the decree passed by the trial Court and dismissed the appeal. Hence, the appellant herein/defendant has approached this Court by filing the present second appeal.
7. The only question that is projected by the appellant herein/defendant as the substantial question of law involved in the second appeal is whether the finding of the courts below regarding the genuineness of the suit promissory note marked as Ex.A1 is perverse?
8. The case of the respondent /plaintiff is that on 01.05.2005 the appellant herein/defendant borrowed a sum of Rs.85,000/- from him and executed the suit promissory note agreeing to repay the said amount with interest at the rate of 12% p.a. Though the suit promissory note recites the rate of interest to be 12% p.a, the respondent/plaintiff has chosen to restrict his claim to 9% alone thinking that the provisions of Madras Act 4 of 1938 would be applicable. The defence case of the appellant herein/defendant is that the suit promissory note was not at all executed by him and he did not borrow any amount on 01.05.2005 as contended by the respondent/plaintiff. Besides making such a blunt denial, the appellant herein/defendant has gone further to state that he had borrowed a sum of Rs.15,000/- from the respondent/plaintiff in the year 2000 for which 7 blank promissory notes containing the figures Rs.2,000/- were signed and handed over to the respondent/plaintiff; that the said amount was finally repaid with exorbitant interest; that after dodging for a month, the respondent/plaintiff returned those blank promissory notes with a threat that he would take revenge on the appellant herein/defendant and that only in order to put his threat into action, the respondent/plaintiff fabricated the suit promissory note forging the signature of the appellant herein/defendant and filed the suit.
9. Of course when the borrowal is disputed and the execution of the promissory note is denied, the initial burden shall be on the plaintiff to prove the execution of the promissory note and the passing of consideration. In case the execution is admitted or proved, then the presumption regarding passing of consideration under Section 118 of the Negotiable Instruments Act will get attracted. In this case, besides examining himself as PW1, the respondent/plaintiff has chosen to examine one Balakrishnan, who has signed as the second attestor of the suit promissory note as PW2 and one Boovaraghavamoorthy as the scribe of the suit promissory note. All the three have uniformly spoken to the effect that the suit promissory note was executed by the appellant herein/defendant after receiving a sum of Rs.85,000/- from the respondent/plaintiff. The meticulous cross-examination made by the learned counsel for the appellant herein/defendant did not shatter the credibility of their testimony. Of course, the witnesses were not able to say exactly the number of currency notes in a particular denomination handed over to the appellant /defendant by the respondent/plaintiff. On the other hand, they have spoken about the fact that the amount was paid in mixed denominations of Rs.50, Rs.100 and Rs.500/-. Of course, there is a slight difference between the testimonies of Pws 1 and 2. PW2 does not refer to the currency notes of Rs.50/- denomination as forming part of the amount paid by the respondent/plaintiff whereas PW1 would say that the amount was paid in the denominations of Rs.50, Rs.100 and Rs.500/-. The said difference cannot be termed a vital contradiction as the parties have deposed before the Court more than three years after the date of transaction. All the three witnesses have uniformly stated that the appellant / defendant received a sum of Rs.85,000/- and executed the suit promissory note produced as Ex.A1.
10. A promissory note is not required by law to be attested. However, it has been attested by two witnesses and the scribe has also signed it. Out of the two persons who signed as attestors, one has been examined and the scribe also has figured as PW3. The non-examination of the other attestor shall not be vital to the plaintiff's case and it will not even improbablize the case of the plaintiff. When the witness examined on the side of the respondent/plaintiff have categorically asserted the plaint averments and the appellant herein/defendant was not able to elicit anything against the plaintiff's case or in favour of the defence case, the preponderance of probabilities will show the genuineness of the suit promissory note produced as Ex.A1. By adducing such evidence, the respondent/plaintiff has prima facie proved the genuineness of the suit promissory note. Then the burden of proving the same to be forged or tainted with the vitiating factor of fraud or undue influence shall stand cast on the defendant. Excepting the interested testimony of DW1, the defendant himself, there is no other evidence adduced on the side of the appellant herein/defendant to prove his case of defence. It is also pertinent to note that the defendant has taken a conflicting stand at one place. He has stated that suit promissory note is a forged one. In case of a forged promissory note, there won't be any place for fraud or undue influence in bringing the same into existence. Curiously, the appellant herein/defendant has taken a stand that the suit promissory note is tainted with fraud or undue influence. Absolutely there is no evidence to show fraud or undue influence as pleaded by the appellant herein/defendant.
11. So far as the plea of forgery is concerned, if at all the appellant herein/defendant was cock sure that signature have been forged, he could have very well taken steps to get the signature found in Ex.A1 promissory note compared with his admitted signature with the help of a handwriting expert. Unfortunately, the appellant herein/defendant has not chosen to do so. When he has not chosen to do it, he cannot blame the respondent/plaintiff for not taking steps to refer the disputed documents for the opinion of a handwriting expert.
12. Furthermore, the story propounded by the appellant herein/defendant, regarding the circumstances leading to the alleged forgery of the document, is also highly improbable. The reasons are as follows:
i) According to the appellant herein/defendant, he borrowed a sum of Rs.15,000/- in the year 2000 from the respondent/plaintiff. Date of borrowal has not been furnished. For the amount of Rs.15,000/-, according to the appellant herein/defendant, the respondent/plaintiff got 7 unfilled promissory notes signed by the appellant herein/defendant each one for a sum of Rs.2000/-. The account does not tally. The total amount covered by 7 promissory notes each one for Rs.2000/- will come to Rs.14,000/- alone, which is Rs.1,000/- short of the amount allegedly borrowed by the appellant herein/defendant.
ii) Again it is an admitted fact that he is a Village Assistant and thus, a Government servant. According to his stand he was making payment of a sum of Rs.2,250/- per month. Such an interest works out at 180% per annum. No prudent man would have agreed for making payment of such an exorbitant interest. Moreover a person like the appellant who is employed in the Revenue Department would not have agreed for such exorbitant interest. The case of the appellant herein/defendant is that even after payment of a total sum of Rs.75,750/- within 27 months as against the sum of Rs.15,000/- borrowed, the respondent/plaintiff dodged him for about a month without returning the signed blank promissory notes. It is highly improbable that the appellant herein/defendant would have kept quite without issuing a notice or without lodging a complaint, if such was the conduct of the respondent/plaintiff, especially in the light of the allegation that the appellant herein/defendant was manhandled at a public place on his way to the Taluk Office.
iii) If at all such signed blank promissory notes, 7 in number, were available with the respondent/plaintiff, he could have very well used them to wreck vengeance in stead of forging a promissory note after returning those blank promissory notes. No reliable evidence has been adduced by the appellant herein/defendant to prove his case that there was such a transaction in the year 2000 and the amount borrowed in 2000 was repaid in June 2002.
iv) If at all the respondent/plaintiff wanted to wreck vengeance by fabricating a promissory note, he could have very well done it within a short span of time thereafter, forging the document with an antedate and filed the suit in the year 2002 or 2003 or even 2004. He would not have waited till 2006 to forge Ex.A1 promissory note with the date 01.05.2005 and file the suit.
v) Again the appellant herein/defendant has also taken a stand that the respondent / plaintiff chose to issue a notice benami in the name of one Elangovan as if he had borrowed a sum of Rs.95,000/- executing a promissory note in favour of the said Elangovan. The appellant herein/defendant has miserably failed to prove any connection between the respondent/plaintiff and the said Elangovan. An attempt was made to show that the said Elangovan was none other than the brother's son of the respondent/plaintiff. The plaintiff's side witnesses were cross-examined by a suggestion that there was a brother to the respondent/plaintiff by name Chandran and Elangovan was the son of the said Chandran. The plaintiff's side witnesses have stoutly denied the fact. Thereafter, DW1, who deposed on his side, was not able to assert that Chandran was the brother of the respondent/plaintiff. On the other hand, he has given an ambiguous answer. The answer in vernacular is as follows:
"re;jpud; kfd; ,s';nfhtd; thjpapd; ,uz;lhtJ kidtpapd; 2tJ kfd;/ nkw;go ,s';nfhtd ghJ}upy; ,Uf;fpwhh;/ ehd; mtiu ghh;j;jjpy;iy "
The said answer itself shows that the appellant herein/defendant has made an unsuccessful attempt to project that the respondent/plaintiff initially issued a notice in the name of Elangovan and since the notice was suitably replied, he has fabricated the suit promissory note and filed the suit.
vi) It is pertinent to note that the notice allegedly issued on behalf of Elangovan and the reply notice allegedly issued by the appellant herein/defendant bear dates subsequent to the date of Ex.B2 pre-suit notice by the respondent/plaintiff and the date on which Ex.B3-cover was returned.
13. If all these facts are taken into consideration, one can arrive at a conclusion that the story propounded by the appellant herein/defendant is highly improbable. Both the Courts below have rendered a finding of fact concurrently based on preponderance of probabilities of case on proper evaluation of evidence. The said findings cannot be termed either defective or infirm, much less perverse. Hence, this Court comes to the conclusion that the appellant herein has not made out a case that the finding of the Courts below regarding the genuineness of the suit promissory note marked as Ex.A1 is perverse. The same shall lead to the drawal of presumption regarding the passing of consideration.
14. For all the reasons stated above, this Court comes to the conclusion that no substantial question of law is proved to have involved in the second appeal. There is no merit in the second appeal and the second appeal deserves dismissal at the threshold. Accordingly, the second appeal is dismissed. No costs. Consequently, the connected miscellaneous petition is closed.
29.01.2013 Index: Yes/No Internet: Yes/No gpa To
1.II Additional Subordinate Judge Villupuram
2. The Principal District Munsif Ulundurpet P.R.SHIVAKUMAR.J., gpa S.A.No.24 of 2013 & M.P.No.1 of 2013 29.01.2013