Madras High Court
K.Ganapathy vs P.Arunachalam on 27 November, 2018
Author: R.Subramanian
Bench: R.Subramanian
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED:27.11.2018
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
S.A.(MD).No.104 of 2007
K.Ganapathy ...Appellant / Appellant / Defendant
(Cause Title amended as per order of this
Court dated 31.07.2007 made in
M.P.(md).No.2 of 2007)
Vs.
P.Arunachalam ...Respondent / Respondent / Plaintiff
PRAYER: Second Appeal filed under Section 100 C.P.C. against the
judgment and decree of the learned Subordinate Judge in A.S.No.55 of
2004, dated 25.02.2005, confirming the judgment and decree of the
learned District Munsif, in O.S.No.187 of 2004, dated 15.03.2004.
For Appellant : Mr.J.Ashok
For Respondent : Mr.D.Venkatesh
JUDGMENT
The defendant in O.S.No.187 of 2004, is the appellant herein. The said suit was filed by the respondent herein seeking recovery of a sum of Rs.45,693/- with subsequent interest, allegedly due on a promisory note executed by the defendant on 06.12.2000.
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2.According to the plaintiff, the defendant has borrowed a sum of Rs.40,000/- from him and executed Ex.A.1-Promissory Note. Despite repeated demands, the defendant did not come forward to repay the amount. The notice issued by the plaintiff was not replied to by the defendant. However, he did not repay the amount. Hence the plaintiff had come forward to file the above suit.
3.The defendant would resist the suit contending that he never borrowed any money from the plaintiff and the suit promissory note is of forgery. He would also claim that the defendant had borrowed money from one Ramakrishnan and the plaintiff has colluded with the said Ramakrishnan and created the suit promissory note with the help of the said Ramakrishnan, who had obtained the signatures of this defendant in blank promissory notes. From the above pleadings, the trial Court framed the following issues:-
1.tof;Fiuapy; thjp NfhhpAs;sthW njhif ngw chpikAs;stuh?
2.thjpf;F fpilf;f Ntz;;ba NtW ghpfhuk; vd;d?
4.The defendant took a plea that the signatures in the promissory note is forged. The defendant has also taken a plea that the said Ramakrishnan had taken his signatures in blank promissory notes and the suit promissory note has been created with the help of one such pre- signed blank promissory note.
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5.The learned trial Judge considered the pleadings and the evidence on record and concluded that the plaintiff has established the borrowal of the amount and the defendant has miserably failed to prove this case that the promissory note was created by the plaintiff with the help of the said Ramakrishnan.
6.On the above conclusion, the learned trial Judge decreed the suit as prayed for.
7.Aggrieved, the defendant filed the appeal in A.S.No.55 of 2004, on the file of the Sub Court, Tenkasi. The lower appellate Court after re- consideration of the evidence on record agreed the findings of the trial Court and dismissed the appeal. Hence the defendant is before this Court by way of Second Appeal.
8.The following questions of law were framed at the time of admission.
“1.Whether the judgment and decree of the Court below is perverse on account of its mis-construction of document in Ex.A.1?
2.Whether the finding of the first appellate Court with regard to the signature of the appellant in Ex.A.1 is perverse http://www.judis.nic.in 4 on account of its rejection of request made by the appellant to send Ex.A.1 for expert opinion?”
9.I have heard Mr.J.Ashok, learned counsel appearing for the appellant and Mr.D.Venkatesh, learned counsel appearing for the respondent.
10.Mr.J.Ashok, learned counsel appearing for the appellant would contend that the Courts below misconstrued Ex.A1 and decreed the suit as prayed for. He would also point out that the evidence of P.W.2 is contradictory and hence, the Courts below should have believed the same. He would also fault the appellate Court for dismissing the application filed by the defendant in the appeal for seeking expert opinion on the signature found in Ex.A.1-Promissory note.
11.Per contra, Mr.D.Venkatesh, learned counsel appearing for the respondent would submit that the defendant even in the reply notice as well as the written statement has taken a specific plea that the suit promissory note has been created with the help of pre-signed blank promissory notes entrusted to one Ramakrishnan. At the same time, the defendant would also plead that the suit promissory note is a forged document. According to him, the two pleas are mutually destructive. http://www.judis.nic.in 5
12.The learned counsel appearing for the respondent would submit that the trial Court as well as the Lower Appellate Court were right in relying upon the evidence of P.W.2 to conclude that the execution of the suit promissory note has been proved by the plaintiff. He would fairly concede that the observation of the courts below on the identity of the signatures by comparing the suit promissory notes with the documents that emanated after suit may not be right. According to him, the same would not vitiate the entire judgment of the Courts below.
13.I have considered the rival submissions.
(i).The promissory note dated 06.12.2000 has been attested by two witnesses. One of them was examined as P.W.2. The said witness in the cross-examination had clearly deposed that he knows the defendant for the past ten years and it was the defendant, who borrowed a sum of Rs.40,000/- and executed a promissory note in favour of the plaintiff.
Ofcourse in cross-examination, the said witness would say that he did not know the plaintiff earlier. The said statement of the witness that he did not know the plaintiff earlier in my considered opinion, would not discredit his testimony in chief examination.
(ii).In fact, the suggestion should have been whether the said witness knows the defendant or not?
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14.P.W.2 has also stated that the defendant is working as a Driver in the said Transport Corporation and he knows the defendant for the past ten years. There is no suggestion in cross-examination that the said witness does not know the plaintiff. The inconsistent stand taken by the defendant, coupled with the evidence of P.W.2 would show that the defendant denied the execution of the promissory notes only for the purpose of denial and there is no truth in the said denial.
15.Accordingly, the first question of law is answered against the appellant herein.
16.The defendant has made an attempt before the appellate Court to have the signature examined by an expert. The lower appellate Court has rightly dismissed the application stating that the defendant having cliamed that the suit promissory note has been created by the plaintiff with the help of Ramakrishnan by using pre-signed blank promissory notes. The defendant cannot seek comparison of the signatures that too at the appellate stage. In the reply notice marked as Ex.A.3 dated 30.10.2001, the defendants had claimed that the suit promissory note has been created by the plaintiff in collusion with one Ramakrishnan. As per Section 20 of the Negotiable Instruments Act, 1881, a holder of a inchoate negotiable insturment is as the right to fill it up and sue upon it. http://www.judis.nic.in 7 Therefore, I see no perversity in the conclusion of the Courts below, hence, the Second Appeal stands dismissed. There will be no order as to costs.
27.11.2018
Index : Yes/No
Internet : Yes/No
tsg
1.The District Munsif, Tenkasi.
2.The Subordinate Judge, Tenkasi.
3.The Section Officer,
V.R.Section, Madurai Bench of Madras High Court, Madurai.
http://www.judis.nic.in 8 R.SUBRAMANIAN, J.
tsg S.A.(MD).No.104 of 2007 27.11.2018 http://www.judis.nic.in