Madras High Court
Ar.Mohammed Jalaludeen vs V.S.Dhakshinamoorthy on 29 October, 2014
Author: P.Devadass
Bench: P.Devadass
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 29.10.2014 CORAM: THE HONOURABLE MR.JUSTICE P.DEVADASS SECOND APPEAL (MD) No.980 of 2009 and M.P.(MD) No.1 of 2009 1.AR.Mohammed Jalaludeen 2.AR.Noorjahan Begum ... Appellants/Defendants -vs- V.S.Dhakshinamoorthy ... Respondent/Plaintiff PRAYER Second Appeal is filed under Section 100 of the Code of Civil Procedure, against the Judgment and Decree, dated 18.06.2009, made in A.S.No.47 of 2009, on the file of the Principal District Judge, Tiruchirapalli, reversing the Judgment and Decree, dated 15.11.2008, made in O.S.No.48 of 2007, on the file of the II Additional Subordinate Judge, Tiruchirapalli. !For Appellants : Mr.G.R.Swaminathan For Defendant : Mr.K.Govindarajan :JUDGMENT
The defendants in O.S.No.48 of 2007, who have succeeded before the trial Court/II Additional Subordinate Judge, Tiruchirappalli since became unsuccessful in the First Appeal in A.S.No.47 of 2009 before the Principal District Court, Tiruchirappalli are before us as appellants.
2. The respondent instituted the suit in O.S.No.48 of 2007 for recovery of Rs.2,00,000/- plus interest totally Rs.2,17,000/- on the allegations that on 15.06.2013, he advanced Rs.1,50,000/- under a promissory note to the defendants, who are spouses, for interest and as they have not paid the accrued interest and the amounts were calculated and it was arrived at Rs.2,00,000/- and a fresh promissory note for the same was executed on 05.05.2006. However thereafter, inspite of notice neither they have paid the interest nor the principal. Thus, the institution of the suit.
3. The appellants/defendants have filed written statement resisting the suit, contending that they have not borrowed Rs.1,50,000/- as pleaded in the plaint. They have not executed any promissory note. Plaintiff filled a blank promissory note and made it suit promissory note.
4. The trial Court framed necessary issues and tried the suit. Voluminous evidence has been produced. The trial Court heavily relying on Ex.B.1, a letter dated 26.08.2013 of plaintiff concluded that that plaintiff has not proved the suit claim and thus dismissed the suit.
5. The unsuccessful plaintiff took the matter in appeal before the learned Principal District Judge, Tiruchirappalli in A.S.No.47 of 2009.
6. The first appellate Judge, came to the conclusion that the defendants having admitted their signatures in Ex.A.6, past consideration is a good consideration for a fresh promise under Ex.A6, applied Section 20 of the Negotiable Instruments Act and negatived the defendants' plea of blank promissory note. The defendants having admitted their signatures in Ex.A.6, it is incumbent upon them to rebut the presumption as to the consideration by leading proper evidence, however, they did not do so. On these premises, the First Appellate Court set aside the judgment and decree of the trial Court and decreed the suit.
7. The learned counsel for the appellants would submit that Ex.B.1 indicates that there cannot be passing of consideration for a old promissory note on 15.06.2013, which was substituted by Ex.A.6 fresh promissory note. Ex.B.1 exposes that the plaintiff had not came to the Court with clean hands and with true facts.
8. The learned counsel for the appellants also contended that the assertion that one's admission as to his signature in a promissory note is not equivalent to admission of the entire promissory note itself. Therefore, it is incumbent upon the plaintiff to prove that Ex.A6 has been executed as a promissory note. However, the plaintiff did not do so. To drive home his point of view the learned counsel for the appellants would contend that actually no money/no consideration has been passed for the original promissory note. Referring to the year 1999, in the stamp paper in which Ex.A6 has been written would submit that the plea of the defendants that their signatures were obtained in blank stamp papers and subsequently they were filled up to suit the plaintiff's convenience has been brought out. In the circumstances, the learned counsel for the appellants would submit that the well considered judgment of the trial Court ought not to have been uprooted by the first appellate Court. Therefore, the learned counsel for the appellants would plead for revival of the trial Court's judgement and decree annulling the First Appellate Court's judgment and decree.
9. On the other hand, the learned counsel for the respondent would put up a reverse argument. He would submit that the First Appellate Court's judgment should be upheld and the upsetting of the trial's Court judgment by the First Appellate Court is to be confirmed. To drive home his his point of view, he would refer to Sections 20 and 118 of the Negotiable Instruments Act and submit that applying Section 20 of the Negotiable Instruments Act, which authorizes plaintiff to fill up the amount in Ex.A.6 covering the stamp value amount. Further, the first respondent as D.W.1 admitted his signature in the stamp paper and also of his wife in Ex.A.6. He admitted execution. It is the version of the defendants that it has been signed under different circumstances, in such circumstances, he must establish it by producing relevant evidence. By the evidence of plaintiff, when the presumption under Section 118 of the Negotiable Instruments Act arises, then it is incumbent upon the defendants to rebut it. But they did not do so.
10. It has also been contended by the learned counsel for the respondent that there was some loan transactions between both sides and Ex.B.1 letter would demonstrate the anguish of the plaintiff in having burnt his fingers in having money dealings with the defendants. He would also stress that Ex.B.1 will not/would not cut the presumption arising in favour of the plaintiff under Section 118 of the Negotiable Instruments Act.
11. The learned counsel for the respondent also contended that a plea has been taken that Ex.A.6 has been executed in 1999. But, it was taken only during the arguments. No plea to that effect is in the written statement.
12. I have given my thoughtful consideration to the wiseful arguments of both sides, scanned the materials on record.
13. For the purpose of the Second Appeal, the following substantial questions of law have been framed:
?(a) Whether the lower appellate court was justified in applying the presumption laid down in Section 118 of Negotiable Instruments Act when the defendants have completely denied the execution of Ex.B6?
(b) Whether the lower appellate court ought to have applied the presumption available under Section 114 of Indian Evidence Act to hold the improbabilities of the execution of the transaction referred to in the Ex.A.6 in view of Ex.B.1.
(c) Whether the lower appellate court misconstrued the nature of Ex.A.6??
14. Let us not duplicate, make our readers boring by repeating the factual matrix, which we have already given. Let us jump into the main point, namely, whether the parties have discharged the onus cast upon them in establishing their respective cases.
15. Law of contract is an ingenuity of English genius. However, there is marked difference between the Indian Contract Act and the English Contract Act. The basic requirements for an agreement is that it must be enforceable in a Court of law. The other requirement is that it must be for consideration. Under the Indian Contract Act past consideration is a good consideration for a fresh promise. (See Section 2(d) and 25 of Indian Contract Act, 1972) That is why, acknowledgement of time barred debt is valid under Indian Law.
16. Now, in this case, for the execution of Ex.A.6 - Promissory Note dated 05.05.2006 for Rs.2,00,000/- by the appellants, the consideration was with reference to an old promissory note stated to have been executed by the appellants on 15.06.2013. Admittedly, for the execution of Ex.A.6, actually no money was given on the date of execution of Ex.A.6. Admittedly, the case of the plaintiff is that Ex.A.6 has been given for past consideration. It is legally valid.
17. But the plea of the appellants is that the old promissory note stated to have been executed on 15.06.2013 is a 'nudum pactum', so also Ex.A.6.
18. Plaintiff/P.W.1 and P.W.2 an attesting witness to the promissory note have spoken about the advancing of loan with reference to the old promissory note. The old promissory note has been received by the appellants and in lieu of that Ex.A.6 has been given. In his cross-examination DW1/first defendant admitted that he has signed in Ex.A.6 and the signature below him is of his better half.
19. Promissory notes in the printed forms are even available in many petty shops. But Ex.A.6 is written on a adhesive stamp paper. Let us ignore its form but mindful of the substance. In substance Ex.A.6 is a promissory note.
20. Ex.A.6 is stated to have been executed on 05.05.2006. It has been attacked by the learned counsel for the appellants by referring to the year 1999 appearing in the stamp paper on which Ex.A.6 has been written and it advances the case of the appellants that Ex.A.6 has been written on a blank stamp paper.
21. Persons dabbling in money were very much mindful of these minute matters. Generally, money lenders will be having printed promissory note forms in their pockets. But, there is no law or stipulation that the stamp paper for execution of promissory note should be within a particular period. It should be stamped with required revenue stamps or it should have been executed in an adhesive stamp paper. Ex.A.6 falls under the latter category. Further, there is no plea in the written statement that Ex.A.6 has been executed in a stamp paper of the year 1919, however, in blank form.
22. Law is law. Whether we like it not, we have to take it as it is. The British invented the Negotiable Instruments Act and it authorizes execution of blank promissory notes. Actually it is intended to augment the commercial transactions. This is recognized in Section 20 of the Negotiable Instruments Act. It authorizes the holder of the instrument to fill up the blanks with amount upto the value of the stamp. This position of law has been validly taken advantage of by the learned counsel for the respondent to thrash down the plea of the appellants that they have signed in blank promissory note.
23. Their signature in Ex.A.6 has been admitted by the defendants. With regard to the passing of the consideration, evidence has been let in by the plaintiff. In such circumstance, there is no independent evidence except the evidence of D.W.1, which is not sufficient enough to rebut the presumption arising under Section 118 of the Negotiable Instruments Act.
24. The main mortal attack on the plaintiff's case is based on Ex.B.1. According to the learned counsel for the appellants, Ex.B.1 completely consigned Ex.A.6 to the coffin and this had resulted in eclipsing the effect of Section 118 of the Negotiable Instruments Act to Ex.A.6. Expanding his this submission, the learned counsel for the appellants would submit that the alleged old promissory note is dated 15.06.2013, while in his Ex.B.1 letter dated 26.08.2013, just few months after the old promissory note how plaintiff could have been lamented about non-payment of interest and amount for a long period.
25. Ex.B.1 letter reads the travails of a lender. There was no reference in Ex.B.1 that it has been written in connection with the promissory note debt. Ex.B.1 would not absolve the defendants from their very duty to rebut the presumption arose under Section 118 of the Negotiable Instruments Act.
26. In winding up our discussion on the respective submissions of the learned counsels at the Bar, in the light of the pleadings, evidence both oral and documentary, legal position, the arising of the presumption under Section 118 of the Negotiable Instruments Act noticed by the First Appellate Court with reference to Ex.A.6 rightly resulted in vacating the judgment and decree of the trial Court and substitution of them with its own judgment and decree, decreeing the suit.
27. At the end, this Second Appeal fails and it is dismissed, upholding the judgment and decree of the First Appellate Court/Principal District Court, Tiruchirapalli rendered in A.S.No.47 of 2009 on 18.06.2009. In view of the present precarious financial position of the appellants parties are left to bear their respective costs in the Second Appeal. Consequently, connected M.P.(MD) No.1 of 2009 is also dismissed.
To
1.The Principal District Judge, Tiruchirapalli.
2.The II Additional Subordinate Judge, Tiruchirapalli.