Madras High Court
K.P.Nagappa Gounder (Died) .. 1St vs N.Ramasamy on 7 January, 2014
S.A.No.848 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
JUDGMENT RESERVED ON : 17.12.2021
JUDGMENT DELIVERED ON : 05.04.2022
CORAM
THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN
S.A.No.848 of 2013
1.K.P.Nagappa Gounder (died) .. 1st Appellant / Appellant /
Plaintiff
2.Arukkani
3.K.N.Venkatachalam
4.K.N.Palanisamy
5.Saraswathi
6.Valliammal
7.Pachiammal
[Appellants 2 to 7 are brought on record
as LRs of the deceased sole appellant
vide order dated 07.01.2014 made in
M.P.No.1 of 2013] .. Appellants 2 to 7
Vs.
N.Ramasamy .. Respondent / Respondent /
Defendant
_______________
Page No.1 of 11
https://www.mhc.tn.gov.in/judis
S.A.No.848 of 2013
PRAYER : This Second Appeal is filed under Section 100 of C.P.C., against
the judgment and decree dated 11.02.2013 made in A.S.No.29 of 2012 on
the file of the Subordinate Court, Gobichettipalayam, in confirming the
judgment and decree, dated 03.08.2012 made in O.S.No.7 of 2005 on the
file of the District Munsif Court, Gobichettipalayam.
For Appellants : Mr.R.T.Doraisamy
For Respondent : Mr.V.Anandhamoorthy
JUDGMENT
The unsuccessful plaintiff is the appellant herein. Original appellant K.P.Nagappa Gounder died pending second appeal. His legal heirs are brought on record.
2. For the sake of convenience, the parties are referred to as per the ranking before the trial Court.
3.The plaint in O.S.No.7 of 2005 is filed by the original plaintiff _______________ Page No.2 of 11 https://www.mhc.tn.gov.in/judis S.A.No.848 of 2013 for the recovery of a sum of Rs.82,550/- with interest. The suit was dismissed and A.S.No.29 of 2012 filed by the plaintiff is also dismissed and hence, the second appeal.
4.Initially notice of motion was ordered on 30.07.2013 and the following substantial question of law was framed on 17.12.2021:
“Whether the Courts below are correct in holding that there are material contradictions in the evidence of P.W.1 and P.W.2 when there is no such contradiction in the evidence?”
5.Heard the learned counsel Mr.R.T.Doraisamy, appearing for the appellants/plaintiffs and the learned counsel Mr.V.Anandhamoorthy, appearing for the respondent/defendant.
6.As per the plaintiff and P.W.1's evidence, on 14.12.2001, the defendant borrowed a sum of Rs.65,000/- for his family necessity and on demand, executed a promissory note agreeing to repay the same with interest at the rate of Rs.1.50 paise per Rs.100/- per annum. _______________ Page No.3 of 11 https://www.mhc.tn.gov.in/judis S.A.No.848 of 2013
7.On the contrary, the stand of the defendant in the pleading as well as D.W.1's evidence is that the defendant has neither borrowed money from the plaintiff nor executed the suit promissory note. The alleged suit promissory note is forged. The signature found in the suit promissory note is not that of the defendant.
8.During trial, the plaintiff has examined himself as P.W.1. One witness by name Moorthy was examined as P.W.2. Exhibits A.1 to A.3 were marked on the plaintiff's side. On the defendant's side, the defendant has examined himself as D.W.1. One witness by name Pattaiyagounder was examined as D.W.2. No documentary evidence was exhibited on the defendant's side. Based on the above oral and documentary evidences, the Trial Court has dismissed the suit. Aggrieved by the said Judgment and decree, the plaintiff has preferred this appeal.
9.The case of the plaintiff P.W.1 is that on 14.12.2001 the defendant borrowed as sum of Rs.65,000/- from P.W.1 on execution of the _______________ Page No.4 of 11 https://www.mhc.tn.gov.in/judis S.A.No.848 of 2013 suit promissory note, Ex.A.1 agreeing to repay the same with interest.
10.On the other hand, it is the case of D.W.1 that he has neither borrowed money from P.W.1 nor has executed the suit promissory note Ex.A.1, that the alleged suit promissory note is forged. D.W.1 has contended that the signature found in the suit promissory note is not his signature.
11.Since the defendant has denied the very execution of the pronote and has pleaded forgery, the initial burden to prove that the defendant on borrowing Rs.65,000/- from the plaintiff has executed Ex.A.1, is on the plaintiff.
12.The record reveals that no application has been filed by either of the parties to refer the pronote along with the admitted signature, for the opinion of the Forensic expert. DW2, who is the one of the attestor, could depose that to establish the execution of the promissory note P.W.1 examined as Scribe of the witnesses.
_______________ Page No.5 of 11 https://www.mhc.tn.gov.in/judis S.A.No.848 of 2013
13.The scribe of Ex.A.1/pronote was examined as P.W.2, while the attestor of Ex.A.1/suit pronote was examined as D.W.2. The Trial Court has rendered a finding that there is a variation in the pleadings and the evidence of P.W.1 regarding of place of passing of the consideration. The execution of the pronote is spoken to by P.W.2 and the place of execution and passing consideration is spoken to by P.W.2, this variation is considered as vital by the Courts below and non-suited the plaintiff.
14.In view of the plea of the defendant that the suit promissory note is ranked forged document, the defendant ought to have proved his pleadings by taking an application for sending Ex.A.1/pronote for Forensic Department. Admittedly neither of the parties have not taken any steps in that direction.
15.As stated supra, the plaintiff entered into the witness box and marked Ex.A.1 to Ex.A.3. P.W.2 is the attestor of Ex.A.1, promissory note, while the defendant has raised plea of forgery in the written statement. _______________ Page No.6 of 11 https://www.mhc.tn.gov.in/judis S.A.No.848 of 2013
16.On perusal of the evidence of P.W.1 and P.W.2, the attestor of the suit promissory note, both the Courts below have concurrently held that the versions of P.W.1 and P.W.2 are not clear and cogent. There are many contradictions regarding the place of execution of the promissory note. It remains to be stated that as per the evidence of P.W.1, the promissory note was executed in his house. As per the evidence of P.W.2, the scribe of the suit promissory note, it was executed in the veranda of his mill. The answer elicited in the cross-examination of P.W.2, scribe of the promissory note, assumes significance in the backdrop of the contention of the defendant that he never executed any promissory note in favour of the plaintiff and the signature in the suit promissory note is not that of the defendant.
17.At this juncture, it remains to be stated that to establish the execution of the suit promissory note, the plaintiff as P.W.1 examined P.W.2, scribe as a witness in his side. Even as to the passing of consideration, the evidence of P.W.1 and P.W.2 are not cogent and are found to be at vital variations. It is a specific evidence of P.W.2, the scribe, _______________ Page No.7 of 11 https://www.mhc.tn.gov.in/judis S.A.No.848 of 2013 that he did not witness the passing of consideration.
18.The learned counsel appearing for the respondent / defendant has drawn my attention to the cross-examination of P.W.2, who is the scribe of the said Ex.A.1, promissory note and D.W.2, the attestor of Ex.A.1, promissory note, wherein they have specifically admitted that the defendant is not present at the time of the attestation and neither before P.W.2 nor in front of D.W.2, the plaintiff has not made any payment nor the defendant had executed the document.
19.In the light of the specific plea that it is not the signature of the defendant in the suit promissory note, both the parties have not taken any steps to send the suit promissory note for the Forensic Report. The scribe as well as the attestor of the suit promissory note have not deposed regarding execution of the promissory note by the defendant nor passing of the consideration and therefore, I find that the evidence of P.W.1 and P.W.2 (scribe) is not clear and cogent and it is full of surplus of material contradiction as to the place of execution of the promissory note, besides _______________ Page No.8 of 11 https://www.mhc.tn.gov.in/judis S.A.No.848 of 2013 attestation thereon has also been denied by the defendant. Even the attestor, D.W.2, has not supported the case of the plaintiff, so also the scribe and hence, taking note of the considerations of the above point, both the Courts below have concurrently held that the plaintiff neither proved the execution of the promissory note by the defendant nor proved the passing of consideration and the version of P.W.1 is in material contradiction with P.W.2, scribe of the document, so also D.W.2, the attestor of the promissory note and has rightly come to the conclusion that the plaintiff has failed to prove the execution of the suit promissory note and failed to establish that the suit promissory note is true and valid and therefore the plaintiff / appellant is not entitled to recover the suit claim, is well considered and well-merited and the said finding does not suffer from any irregularity or illegality warranting interference at this appellate stage and the above substantial question of law does not arise on the factual situation and hence, the same stands negatived against the appellant and the second appeal is devoid of merits.
20.In the result, this second appeal stands dismissed. The _______________ Page No.9 of 11 https://www.mhc.tn.gov.in/judis S.A.No.848 of 2013 Judgement and decree dated 03.08.2012 made in O.S.No.7 of 2005 by the District Munsif Court, Gobichettipalayam, upheld in A.S.No.29 of 2012 by the Subordinate Court, Gobichettipalayam, are confirmed. No Costs.
05.04.2022 Internet : Yes/No Index : Yes/No smn To
1.The Subordinate Judge, Gobichettipalayam.
2.The District Munsif, Gobichettipalayam.
3.The Section Officer, V.R.Section, High Court, Madras.
_______________ Page No.10 of 11 https://www.mhc.tn.gov.in/judis S.A.No.848 of 2013 RMT.TEEKAA RAMAN, J.
smn JUDGMENT MADE IN S.A.No.848 of 2013 05.04.2022 _______________ Page No.11 of 11 https://www.mhc.tn.gov.in/judis