Madras High Court
Dr. S.K. Doraisamy vs N. Elangovan And Three Others on 30 July, 2001
Author: M. Chockalingam
Bench: M. Chockalingam
ORDER
1. This suit has been filed for direction, directing the defendants to pay jointly and severally the sum of Rs. 18,92,000 together with interest at 24% per annum from the date of plaint till the date of realisation and for costs.
2. The plaint averments are as follows:
The defendants approached the plaintiff and borrowed a sum of Rs. 11,00,000 on 22.11.1993 in order to expand their Garment Factory and garment sales and also to buy certain machinery for their factory at No. 16, Pillaiyar Koil Street, Teynampet, Chennai-600 018. The defendants in evidence of the loan received from the plaintiff jointly and severally executed a demand promissory note for Rs. 11,00,000 on 22.1.1993 in favour of the plaintiff promissing to pay the said sum on demand to the plaintiff or their order with interest at 24% per annum. They also executed a loan agreement dated 22.11.93 promising to pay the said sum within a period of six months from the said date, failing which the plaintiff is entitled to collect penal interest at the rate of 36% per annum. But the plaintiff at present restricts his claim to collect 24% per annum on the principal amount. The defendants failed and neglected to repay the principal amount and also the interest to the plaintiff within the time. After several oral demands by the plaintiff, the defendant (3rd defendant) accepting the joint liability issued a cheque dated 10.2.1995 in favour of the plaintiff for a sum of Rs. 3 lakhs towards interest and part payment of the debt. But the said cheque was dishonoured for insufficient funds in the Defendant's Bank Account. Therefore, the plaintiff filed C.C.No. 6239 of 1995 in the IX Saidapet Metropolitan Magistrate Court to prosecute the defendants(3rd defendant) under Section 138 of the Negotiable Instruments Act and the same is pending. The plaintiff has also filed C.C.No. of 1995 (no. not known to the plaintiff) in the Saidapet Metropolitan Magistrate Court seeking direction to direct the Commissioner of Police, City Crime Branch, Egmore to take steps for recovery of the said amount due to the plaintiff. The Crime Branch has registered the Crime No.45 of 1995 in the first week of January, 1995 and the same is pending. Despite the demands, the defendants did not repay the amount with interest. Now a sum of Rs. 11,00,000 towards principal as on 21.11.1996 and a sum of Rs. 7,92,000 towards interest at 24% per annum from 22.11.1993 to the date of plaint, totalling Rs. 18,92,000 is due and payable jointly and severally by the defendants. Hence the Suit.
3. In the written statement filed by the defendants, it is alleged that the plaintiff being an N.R.I, and a Doctor by profession had transactions only in cash, and actually on the date of pro-note the plaintiff had no sufficient money in cash in hand. The plaintiff paid only a sum of Rs. 6 lakhs on 22.11.1993 and promised to pay the balance in a fortnight. The plaintiff took signatures in blank pronote and as well as in stamp papers. The defendants acknowledging the timely help, believing the words of the plaintiff, signed in blank papers. The plaintiff has not paid the full amount as mentioned in the pro-note and the stamp papers. As stated above only part payment has been made. The plaintiff was busy in export activities at the time of borrowing and therefore, could not spend much in collecting the balance amount of Rs. 5 lakhs. Whenever the defendants contacted the plaintiff to ask for the balance amount, there were no proper response. The remaining amount has not been paid by the plaintiff. The loan agreement alleged in paragraph 3 of the plaintiff is not known to the defendants except through the plaint allegations and the plaintiff is not entitled to interest at 36% p.a. The plaintiff accepts only cash payments and major portion of the principal and interest have been paid towards the suit claim. The plaintiff taking advantage of the nature of payment, viz., cash payments, suppressing various payments has come with false claim. The plaintiff, on a false complaint, dragged the third defendant to police station on 13.1.1995 and under threat and coercion, the plaintiff obtained cheques from the third defendant. The third defendant, when he was detained by police officials, was compelled to issue cheques in favour of the plaintiff. The issuance of cheques are not voluntary. The defendants never accepted the liability as alleged in the plaint. Only under compelling circumstances, on 13.1.1995, two post dated cheques were obtained from the third defendant. The plaintiff adopted unlawful and unethical methods of threatening the third Defendant to shoot at him in the presence of police officials at the time of enquiry. The licence granted to the plaintiff to possess gun is only to protect himself and not to give unlawful threats to others. The plaintiff is not entitled to possess the licence any more and the licence is liable to be revoked by the authorities concerned for which the defendants are taking steps. The allegation with regard to the criminal case under Section 138 of Negotiable Instruments Act is false. The said complaint has been dismissed by the learned IX Metropolitan Magistrate on 8.10.1997. If the plaintiff had sufficient and acceptable evidence to prove his case, he could have prosecuted the case. The claim is inflated with a view to escape payment of court- fee in City Civil Court, Madras, and suppressing various payments made in cash as stated earlier. The liability of the defendants are stoutly denied. The claim is barred by limitation. Hence the suit may be dismissed with costs.
4. On the above pleadings, the following issues were framed:
(i) Whether the defendants are entitled for a decree for a sum of Rs. 18,92,000 with interest at the rate of 24% from the dale of the plaint till the date of realisation?
(ii) Whether it is correct that the suit promissory note is not supported by consideration?
5. The plaintiff has come forward with the suit for recovery of a sum of Rs. 18,92,000 from the defendants with subsequent interest alleging that the defendants borrowed from the plaintiff by executing a promissory note. Neither the plaintiff nor the defendants had adduced any oral or documentary evidence.
6. Arguing for the plaintiff, learned counsel would submit that the plaintiff has filed the suit for recovery of the principal amount of Rs. 11 lakhs with interest due; that the defendants in order to expand their garment factory and sales and buy certain machineries for their factory, approached the plaintiff and borrowed the said principal by executing a demand promissory note on 22.11.1993 in favour of the plaintiff; that they agreed to pay 24% p.a. of interest that was also understood that the defendants should repay the loan within a period of six months, in default, the plaintiff is entitled to recover the said principal with penal interest at the rate of 36% p.a.; that since the defendants after several demands accepting the liability, issued a cheque for a sum of Rs. 3 lakhs towards the pan payment of the debts; that despite their promises, the defendants did not honour the cheque which lead the plaintiff to file a criminal complaint before the Metropolitan Magistrate Court under the provisions of the Negotiable Instruments Act; that the plaintiff has also filed a complaint before the Metropolitan Magistrate seeking direction to the Commissioner of Police to take appropriate action against the defendants which resulted the registration of a case by the Crime Branch Police; that under the said circumstances, the plaintiff had no option than to file the suit for recovery of the principal of Rs. 11,00,000 with interest of Rs. 7,92,000 calculating at 24% p. a.
7. Added further, learned counsel that the plaintiff has not examined himself or any other witnesses and has not adduced any documentary evidence; that the plaintiff could not examine himself since he is in foreign country that in the instant case the defendants have entered appearance and participated in the proceedings by filing a written statement also; that the defendant had categorically admitted in the written statement that they received Rs. 6 lakhs on 22.11.93, the date of the pro-note and they have further admitted the execution of the promissory note on the date of the receipt of the payment but they have added that the plaintiff paid only Rs. 6 lakhs on 22.11.1993 promising to pay the balance in a fortnight and has failed to do so, that in view of their categoric admission in the written statement that they received Rs. 6 lakhs on 22.11.93 the date of the promissory note as the part of the consideration found therein, a decree for this admitted sum of Rs. 6 lakhs with interest has to be passed; that it is true that the plaintiff has not adduced any oral or documentary evidence but in view of the above admission made by the defendants acknowledging their liability to the extent of Rs. 6 lakhs, a decree could be granted in favour of the plaintiff to that extent; that the defendants having admitted their liability to the extent of Rs. 6 lakhs cannot now be permitted to say that they are not liable to pay the said sum with interest since the plaintiff has not adduced any evidence in this regard; that the plaintiff is satisfied if a decree is passed to the extent of Rs. 6 lakhs with interest from 22.11.93 and a decree has to be got in favour of the plaintiff accordingly.
8. Advancing his arguments for the defendants, learned counsel with vigor and vehemence would submit that the suit has got to be dismissed since the plaintiff has not adduced any evidence to prove his claim; that the plaintiff has come forward for recovery of Rs. 18 lakhs and odd stating that the defendants executed a promissory note in his favour on 22.11.93 but the plaintiff has not examined himself to prove either the payment of Rs. 18 lakhs to the defendants on 22.11.93 and the fact of execution of the promissory note by the defendants for the said borrowal; that it is true that the plaintiff has filed the promissory note in court but he has not adduced any oral evidence to mark the same and thus a reading of the written statement would reveal that the execution of the promissory note has been categorically denied and under such circumstances the duty is cast upon the plaintiff to prove the execution of the promissory note on 22.11.93; that the plaintiff cannot be allowed to rely on the pleading of the defendants made in the written statement stating that Rs. 6 lakhs was paid on 22.11.93; that once the execution of the promissory note which forms the basis for the plaintiffs claim is denied the plaintiff should have proved the due execution of the promissory note as required by law and in the absence of the same, plaintiff is not entitled to get a decree.
9. Learned counsel for the defendants would further add that in the instant case, the defendants have come with a specific plea that the plaintiff took their signatures in a blank pro-note as well as in the stamp papers on 22.11.93, believing the words of the plaintiff who did timely help and this it would be clear by the said pleading they have categorically denied the execution of the promissory note and it is not enough for the plaintiff to rely on the admission of the defendants stating that they have signed on a blank promissory note to get the relief. Apart from that, in the instant case, the plaintiff has not properly discharged the burden of proof; that no one of the averments in the plaint has been established through any evidence, whatsoever; that the plaintiff must press his submissions at every necessary stage of the trial and clearly bring them out in evidence so that the defendants might have opportunity to cross-examine the witnesses and place his contentions before the Court and thus the plaintiff who has thoroughly failed to discharge the burden cast on him to prove the execution of the promissory note and hence the plaintiff is not entitled to the relief as a whole or in part and the suit has got to be dismissed with costs.
10. The plaintiff has come forward with the civil action for a recovery of a sum of Rs. 18,92,000 from the defendants with the subsequent interest alleging that the defendants borrowed from the plaintiff a sum of Rs. 11 lakhs on 22.11.93 and that they executed a promissory note the very day but they have not repaid the same and hence he has constrained to file the suit. Admittedly the plaintiff who has based his claim for recovery of money on promissory note alleged to have been executed by the defendants on 22.11.93 has not examined himself to prove the execution of the same. Not even the promissory note, the basis of the claim has been marked on the plaintiffs side. Learned counsel for the plaintiff has made an endorsement stating that he would not adduce any oral evidence. In short, the plaintiff has neither adduced oral evidence nor any documentary evidence but has solely relied on the admission made by the defendants. In answer to the specific pleading of the plaintiff that the defendants approached the plaintiff and borrowed a sum of Rs. 11 lakhs on 22.11.93 and in evidence of the loan received from the plaintiff, jointly and severally executed a demand promissory note for Rs. 11 lakhs on 22.11.93 in favour of the plaintiff promissing to pay the said sum on demand, the defendants have categorically admitted as follows: "The plaintiff paid only a sum of Rs. 6 lakhs on 22.11.93 and promised to pay the balance in a fortnight and the plaintiff took signatures in the blank pro-note as well as in stamp papers, the defendants acknowledging the timely help, believing the words of the plaintiff signed the blank papers . The plaintiff has not paid the full amount as mentioned in the promissory note and stamp papers. As stated above only part payment has been made." From the very reading of the above admission, it would be abundantly clear that the defendants had candidly admitted the part payment of consideration of Rs. 6 lakhs on 22.11.93 out of the alleged consideration of Rs. 11 lakhs. The defendants have also admitted that they have signed in the promissory note but it was blank one that time. In the face, of the above admission made by the defendants in pleading in respect of the receipt of the part of the consideration, the Court is of the view that there cannot be any legal impediment for granting a decree in respect of the same. Even during the pendency of a suit, the Court can enter Judgment on the admission made in the pleading without determining any other question arising between the parties. Rule 12, Order 6 reads as follows:
"Where admissions of fact have been made either in the pleadings or otherwise, whether orally or in writing, the Court may at any stage of the suit, either on the application of any party or of its motion and with out for the determination of any other question between the parties, make such order or give such judgment as it may think fit having regard to such admissions.
The legislative intent behind the rule is to enable either party at any stage of the suit to obtain a judgment on motion by him or by the Court acting suo-motu on admissions made by the other party and has it would be clear either party to the proceedings may, by availing the rule, may get rid of so much of the suit as to which there is no controversy. In order to invoke this rule, the admission must be clear, unambiguous, unconditional and unequivocal. During the pendency of the suit if either party can avail himself of the rule and ask for that part of the relief as admitted by opposite party in the pleadings, the Court is of the view that there cannot be a legal impediment for granting such a relief. On the basis of the clear, unambiguous and unconditional admissions made by the defendants in written statement at the time of final disposal of the suit.
11. In the instant case, the defendants in the written statements have made clear and unambiguous admission of the liability in respect of the part of the consideration namely Rs. 6 lakhs received by them from the plaintiff on 22.11.93. It is pertinent to note that they have specifically stated that "only part payment has been made". It remains to be stated that in the instant case, the defendants have admitted the part of the plaintiffs claim and have denied the rest of the same, under the circumstances, no doubt, the plaintiff is entitled to the portion of the claim admitted by the defendants. The contention of the defendants that the above part of the pleading will not constitute admission by the defendants as to the part of the plaintiffs claim cannot be countenanced since as staled above, the admission made in the written statement is clear and unambiguous to the extent of the part of the consideration of Rs. 6 lakhs. In view of the candid admission made by the defendants in the written statement, as stated above, it will not be worthwhile to allow them to putforth the defence stating that the entire suit has to be dismissed in view of the non-production of the evidence, oral and documentary. Hence, without any hesitation it has to be held that the plaintiff is entitled to a decree for a sum of Rs. 6 lakhs admittedly received by the defendants on 22.11.93 and interest thereon. Though it is contended by the defendants side that the major portion of the principal and interest have been paid towards the suit claim, they have not proved the same. In so far as the part payment of the consideration to the extent of Rs. 6 lakhs is concerned, the defendants have candidly admitted in their pleadings as stated above but in so far as the alleged payments made by the defendants towards principal and interest, the burden of proving those payments would lie only on the defendants which they have failed to do and hence the alleged payments towards principal and interest cannot be accepted.
12. Learned counsel for the defendants relied on two decisions reported in Sayyaparaju Surayya v. Koduri Kondamma, 1949 (II) M.L.J. 684 and Chitra Kumari v. Union of India, in support of his contention. The Court is of the view that those decisions are not applicable to the present facts of the case.
13. Thus for the discussions made above and reasons stated above, it has to be necessarily held that the plaintiff is entitled to a decree for a sum of Rs. 6 lakhs with subsequent interest from 22.11.93. Coming to the question of interest, the plaintiff has claimed subsequent interest at the rate of 24% per annum from the date of execution till the date of realisation. There is no proof that the defendants borrowed the said sum for any commercial transactions. Hence awarding interest at the rate of 12% per annum from the date of borrowal viz., 22.11.93 till the date of realisation could be reasonable.
14. In the result, the suit is decreed in favour of the plaintiff for a sum of Rs. 6 lakhs with subsequent interest at the rate of 12% per annum from 22.11.93 till the date of realisation with proportionate costs, in other respects, the suit is dismissed.