Madras High Court
A.Thilgam vs K.Kannan
Author: G.Chandrasekharan
Bench: G.Chandrasekharan
S.A.No.610 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
JUDGMENT RESERVED ON :25.01.2022
JUDGMENT DELIVERED ON: 09.02.2022
CORAM:
THE HON'BLE Mr. JUSTICE G.CHANDRASEKHARAN
S.A.No.610 of 2021
and
C.M.P.No.12728 of 2021
R.Rajammal (deceased)
W/o, late Gnanasambandam
1. A.Thilgam
W/o, G.Ashokan
2. Vinodhabalu
S/o, G.Ashokan
3. A.Punitha
D/o, G.Ashokan
4. A.Sudha
D/o,G.Ashokan ... Appellants
Vs.
K.Kannan
S/o, A.Kuppusamy ... Respondent
1/16
https://www.mhc.tn.gov.in/judis
S.A.No.610 of 2021
Prayer: Second Appeal filed under Section 100 of C.P.C., against the
judgment and Decree dated 11.04.2011 made in A.S.No.109 of 2010 on the
file of the learned II Additional Judge, City Civil Court, Chennai, confirming
the judgment and decree, dated 09.01.2009 made in O.S.No.4521 of 2002,
on the file of the learned V Assistant Judge, City Civil Court, Chennai.
For Appellants : Mr.Sankaravadivel
For Respondent : Mr.Mohammed Riyaz
for M/s.A.Abdul Rahman
JUDGMENT
This Second Appeal is filed challenging the concurrent judgment and decree of the Courts below in decreeing the suit filed on the basis of promissory note. The respondent/plaintiff filed the suit on the basis of promissory note for recovery of Rs.77,157/- with 24% interest on the principal amount. The case of the respondent is that one G.Ashokan, who is the son of Rajammal, husband of the first appellant Thilagam and father of the other appellants, borrowed a sum of Rs.45,000/- from the respondent on 15.12.1998. He executed a promissory note on the same date, after receiving the amount and promised to pay the principal amount with interest 2/16 https://www.mhc.tn.gov.in/judis S.A.No.610 of 2021 at 24% per annum on demand. Ashokan died on 26.04.2000 leaving his mother, wife and children as his legal heirs to succeed to his estate. Inspite of repeated demands, the appellants did not repay the amount. Therefore, notice was issued on 17.10.2000. Even thereafter, the appellants have not paid the amount. Therefore the suit.
2. The case of the appellants as seen from the written statement is that the suit is hopelessly barred by limitation. It is denied that Ashokan borrowed Rs.45,000/- on 15.12.1998 and executed the promissory note. The promissory note is a rank forgery. The suit is filed by the respondent taking advantage of the demise of Ashokan to grab money from the appellants. The alleged execution of promissory note and the date of execution of the promissory note is contradictory. Respondent fabricated the date of the promissory note for the purpose of litigation. Otherwise, the suit is hopelessly barred by limitation. Ashokan had denied the alleged money transaction even during his lifetime. The respondent failed to file a suit during the life time of Ashokan. The suit is liable to be dismissed.
3. On the basis of these pleadings, the Trial Court framed the 3/16 https://www.mhc.tn.gov.in/judis S.A.No.610 of 2021 following issues:
i. Whether the suit is barred by limitation? ii. Whether the plaintiff is entitled for the relief claimed in the plaint?
iii. To what relief, if any, the plaintiff is entitled? Additional issue:
i. Whether the suit promissory note is altered? ii. Whether Ashokan borrowed only Rs.5,000/- and discharged this amount?
4. During trial, P.W.1 was examined and Exs.A1 to A8 were marked on the side of the respondent/plaintiff. No witness was examined and Exs.B1 and B2 were marked on the side of the appellants.
5. On considering the oral and documentary evidence, the trial court found that the respondent/plaintiff proved the borrowal of Rs.45,000/- and the execution of the suit promissory note and therefore decreed the suit. In Appeal filed by the appellants, the first appellate court agreeing with the trial 4/16 https://www.mhc.tn.gov.in/judis S.A.No.610 of 2021 court, confirmed the judgment and decree of the trial court and dismissed the appeal. Therefore, the appellants filed this Second Appeal.
6. Learned counsel for the appellants mainly submitted that though there was some loan transaction between Ashokan and the respondent, he has not borrowed Rs.45,000/- on 15.12.1998 as claimed by the respondent. Using the blank promissory note given by him to the respondent during the previous loan transaction, the suit is filed. It is evident from Ex.A2 notice, wherein it is claimed that the suit promissory note was executed on 15.02.1998. However, it is seen from the plaint pleadings and in Ex.A1 promissory note, the respondent claimed that the amount was borrowed on 15.12.1998 and the suit promissory note was executed on the same date. Forgetting that notice Ex.A2 was issued, the suit promissory notice was filled before filing of the suit with the date of execution as 15.12.1998. When the respondent prosecuted Ashokan under section 138 of the Negotiable Instruments Act for not paying Rs.5,000/- there is no reason, why the suit was not filed during the life time of Ashokan. Ex.A2 clearly proved that the suit promissory note has not been executed on 15.12.1998. 5/16 https://www.mhc.tn.gov.in/judis S.A.No.610 of 2021 Therefore, the suit is clearly barred by limitation. Without considering this suspect, both the Courts below have wrongly decreed the suit. Therefore, learned counsel for the appellants prayed for setting aside the judgment and decree of the Courts below.
7. Per contra, learned counsel for the respondent submitted that the appellants claimed that the suit promissory note is a forged document. The First Appellate Court on an elaborate consideration of evidence found that the claim of forgery is not proved. The suit was filed within time. The execution of promissory note after receiving the consideration was proved by the evidence of P.W.1 and therefore, both the Courts below have decreed the suit. There is no ground for any interference. Therefore, he prayed for confirming the judgment of the Courts below and for the dismissal of this Second Appeal.
8. At the time of admission of the Second Appeal, the following substantial questions of law were formulated for consideration.
i. Whether the finding of the Courts below that 6/16 https://www.mhc.tn.gov.in/judis S.A.No.610 of 2021 Ex.A1, the suit promissory note is a genuine one is correct, when Ex.A2, the Lawyer's notice issued by the plaintiff on 11.01.1999 clearly displays the date of Ex.A1 as 15.02.1998 and the total amount claimed in that notice tallies with the calculation of interest at 24% per annum on the principal of Rs.45,000/- from 15.02.1998 till previous month of date of notice?
ii. Whether the findings of the Courts below that there is no material alteration in Ex.A1 is not erroneous and sustainable when P.W.1 candidly deposes and admits that he showed Ex.A1 to his Layer and that the contents of Ex.A2 are correct especially when even under Ex.A3, the Lawyer notice dated 17.10.2000, it is not stated that the date mentioned in Ex.A2 is a mistake?
Iii. Whether the suit is not barred by limitation?
9. Admittedly, the appellants before this Court are not parties to 7/16 https://www.mhc.tn.gov.in/judis S.A.No.610 of 2021 Ex.A1 promissory note. The case of the respondent is that one Ashokan, husband of the first appellant and father of the other appellants borrowed a sum of Rs.45,000/- on 15.12.1998 and executed the suit promissory note. Ashokan is no more and therefore his legal heirs are impleaded . His legal heirs have no direct knowledge about the suit money transaction. It is seen from the written statement that they mainly claim that the suit is barred by limitation for the reason that there is a discrepancy in the execution of promissory note and the date of execution of promissory note. It is also denied that Ashokan borrowed the amount as claimed by the respondent.
10. Ex.A1 is the suit promissory note. Ex.A2 is the notice dated 11.01.1999 issued by the respondent to Ashokan. Ex.A2 was issued on 11.01.1999. The date of promissory note is given as 15.02.1998 in Ex.A2 and the borrowed amount is claimed as Rs.45,000/- Ashokan was asked to pay principal amount with interest, a total sum of Rs.54,400/-. It appears from the notice, interest at the rate of 24% is calculated from 15.02.1998 till the date of issuance of notice for ten months. The learned counsel for the appellants highlighted the contents of the notice that the respondent claimed 8/16 https://www.mhc.tn.gov.in/judis S.A.No.610 of 2021 that promissory note was executed on 15.02.1998 and claimed interest of Rs.9,400/- for ten months. The suit now filed claiming that Ex.A1 promissory note was executed on 15.12.1998 is palpably not correct. It is apparent that the suit promissory note is fabricated or forged using the blank promissory note given by Ashokan. To support this contention, there are Exs.B1 and B2 documents. Ex.B1 notice is issued by the respondent to Ashokan claiming a sum of Rs.5,000/- borrowed on 15.12.1998 on the return of cheque for want of funds. It is claimed that this notice was replied through Ex.B2 by Ashokan. It is claimed in Ex.B2 that he borrowed Rs.5,000/- from the respondent during 1998. As a security, the respondent took blank cheque from him, using the cheque, the case was filed. Further the learned counsel for the appellants submitted that even in the case before hand, in the light of the contents of Ex.A2 notice, it is evident that the blank signed promissory note given by Ashokan, is fabricated and forged to file the suit. In reply , the learned counsel for the respondent submitted that the date of promissory note and other details given in Ex.A2 are only typing errors and they cannot be given much importance.
9/16 https://www.mhc.tn.gov.in/judis S.A.No.610 of 2021
11. The settled proposition of law is that the plaintiff has to prove his case on the basis of his own pleading and evidence and he cannot pick up holes in the case of the defendant. It is the case of the plaintiff, as pleaded in the plaint that only a sum of Rs.45,000/- was borrowed by Ashokan on 15.12.1998. However, it is seen from Ex.A3 notice that he claims that Ashokan borrowed two sums namely Rs.5,000/- and Rs.45,000/- on 15.12.1998. What is the need to execute two promissory notes for borrowing Rs.50,000/- there is no explanation. The borrowal of Rs.5,000/- is not mentioned in the plaint. Similarly, in Ex.A6, complaint given under section of 138 of Negotiable Instruments Act filed for the dishonor of the cheque issued for Rs.5,000/- there is no mention about the execution of promissory note for Rs.5,000/- However, the promissory note for Rs.5,000/- is produced as Ex.A4. Perusal of Exs.A1 and A4 show that the promissory notes were written in a very old paper, but the details it is apparent that, were filled recently. The respondent has not examined the attestor to Ex.A1 promissory note to prove the borrowal and execution of promissory note. When the appellants denied the borrowal and execution of promissory note by Ashokan, the respondent ought to have examined the attestor. It is not 10/16 https://www.mhc.tn.gov.in/judis S.A.No.610 of 2021 known why the attestor was not examined. There is no details with regard to the scribe of Ex.A1 promissory note. We can gather from the evidence of P.W.1 that he filled up the details in the promissory note. He admitted that he filled the details regarding amount, interest, date in the promissory note on the date of executing the promissory note, meaning thereby, he was the one who filled up the details in Ex.A1 promissory note. He admitted claiming interest at the rate of Rs.900/- per month for ten months 20 days, totally a sum of Rs.9,400 in Ex.A2. He claimed that Ashokan received this notice and sent a reply. However, the reply sent by Ashokan to Ex.A2 notice is not produced before this Court. Had he produced the reply sent by Ashokan to Ex.A2 notice, it would have been much helpful for deciding the case. It is a best evidence to know about the borrowal and execution of suit promissory note. It is not known why the respondent withheld the important piece of evidence. It creates a strong suspicion in the case of the alleged borrowal and execution of promissory note Ex.A1 by Ashokan.
12. Learned counsel for the respondent submitted that the appellants 11/16 https://www.mhc.tn.gov.in/judis S.A.No.610 of 2021 have not produced any oral evidence in support of their case. On the other hand, the respondent has produced evidence in support of his case. It is true that the appellants have not produced any oral evidence. As already stated, as a plaintiff, it is for the plaintiff to prove his case, the respondent in this Appeal, as indicated above. There are lot of materials and doubtful circumstances surrounding the alleged borrowal of Rs.45,000/- and the execution of promissory note on 15.12.1998. The respondent has withheld the important material evidence, namely, the reply sent by Ashokan to Ex.A2 notice. In Ex.A2 notice, it is claimed that the date of execution of promissory note was 15.02.1998 and the interest of Rs.9,400/- with principal amount of Rs.45,000/- totally Rs.54,500/- was claimed. We cannot accept the reason given by the learned counsel for the respondent that the date of promissory note was wrongly typed as 15.02.1998 and other details were wrongly given in the notice. It cannot be accepted for the reason that the interest for 10 months and 20 days was consciously calculated and claimed in Ex.A2 notice and that was accepted by P.W.1, the respondent herein. Assuming that Ashokan borrowed money from the respondent, the borrowal could have been only on 15.02.1998 and not on 12/16 https://www.mhc.tn.gov.in/judis S.A.No.610 of 2021 15.12.1998.
13. For the reasons aforesaid, this Court finds acceptance in the submissions of the learned counsel for the appellants that Ex.A1 promissory note is fabricated to bring the suit within the time limit and the suit is barred by limitation. Thus, this Court answers the first substantial question of law that finding of the Courts below that Ex.A1 suit promissory note is a genuine one is not correct. The finding that there is no material alteration in Ex.A1 may be correct, for the reason, it is apparent that no material alteration. Probably, a blank promissory note is filled up and the suit is filed, is the answer to the second substantial question of law. The suit is barred by limitation and therefore, the respondent is not entitled to claim the amount claimed in the plaint, is the answer to the third substantial question of law.
14. In the result, this Court, sets aside the judgment and decree dated 11.04.2011 passed in A.S.No.109 of 2010 on the file of the II Additional 13/16 https://www.mhc.tn.gov.in/judis S.A.No.610 of 2021 Judge, City Civil Court, Chennai, and dismisses the suit filed by the respondent in O.S.No.4521 of 2002, on the file of the learned V Assistant Judge, City Civil Court, Chennai, by allowing this Appeal.
15. In conclusion, the Second Appeal is allowed with the costs of the appellants. Consequently, connected miscellaneous petition, if any, is closed.
09.02.2022 mfa Index:yes/No Internet:yes/No 14/16 https://www.mhc.tn.gov.in/judis S.A.No.610 of 2021 To
1. The II Additional Judge, City Civil Court, Chennai.
2.The V Assistant Judge, City Civil Court, Chennai.. Copy to The Section Officer, VR Section, High Court, Chennai.
15/16 https://www.mhc.tn.gov.in/judis S.A.No.610 of 2021 G.CHANDRASEKHARAN, J.
mfa Pre-delivery judgment made in S.A.No.610 of 2021 and C.M.P.No.12728 of 2021 09.02.2022 16/16 https://www.mhc.tn.gov.in/judis