N.K.Subbarayan v. Chidambara Padayachi (Died)2.Murugesan

IN THE HIGH COURT OF JUDICATURE AT MADRASDate: 20.04.2007CORAM:THE HON'BLE MR. JUSTICE P.JYOTHIMANIAppeal Suit No.1296 of 1990N.K.Subbarayan... AppellantVs.1.Chidambara Padayachi (Died)2.Murugesan,3.Venkatachalam4.AmminiR2 to R4 brought on record as LRs of the deceased sole respondentvide order of this Court dated 09.03.2007 made in C.M.P.No.15090 of 2002 ... RespondentsPRAYER: First Appeal against the Judgment and decree of the Court of theAdditional Subordinate Judge, Salem dated 30.11.1989. Passed inO.S.No.338/86. For Appellant: Mr.T.Murugamanikkam For Respondents : Mr.Kaithamalai Kumaran for Mr.A.K.KumarasamyJ U D G M E N TThe defendant in the court below is the appellant in this FirstAppeal. The first respondent herein who died during the pendancy of theappeal and his legal representatives have been brought on record asrespondents 2 to 4, has filed the suit in O.S.No.338 of 1986 against theappellant herein for recovery of an amount of Rs.31,750/- along with costand interest at the rate of 9% per annum on the basis of a promissory notestated to have been executed by the defendant on 21.07.1983 havingborrowed an amount of Rs.25,000/- from the plaintiff, promising to repaythe amount on demand with interest at one rupee per hundred per month.Since no amount has been paid either towards the principle or interest, hehas issued a legal notice on 15.07.1986 and in spite of it the defendanthas failed to pay and therefore, the suit was filed. 2. The defence of the defendant as it is seen in the writtenstatement is that the plaintiff and one Chidambara Padayachi, NatesaPadayachi and late Anantha Padayachi were the sons of Mukka Padayachi. https://hcservices.ecourts.gov.in/hcservices/ Anantha Padayachi has left his son Mathavan and all of them haveconstituted a joint family carrying on money lending business. One of thebrothers of the plaintiff, namely, Natesa Padayachi has filed a suitagainst the defendant and his sons in O.S.No.414 of 1985, on the basis ofa mortgage deed executed in his favour. According to the defendant, thesuit promissory note was executed as a renewal of earlier one towardsinterest under the said mortgage, subject matter of suit in O.S.No.415 of1985 on the file of the Sub Court, Salem. Therefore, according to thedefendant, the suit promissory note including other promissory notes weregiven to the plaintiff Chidambaram Padayachi and another. According tothe defendant he has not received any amount as a consideration under thesuit promissory note. 3. That apart it is also the defence that the interest claimed isusurious. The Trial Court has framed the issues as to whether the suitpromissory note is supported by any consideration and also as to whetherthe interest claimed is usurious. The plaintiff was examined as P.W.1 andon the defendant’s side apart from the defendant who was examined asD.W.1, there was another witness examined as D.W.2 to support the defenceof the defendant. The suit promissory note was marked as Ex.A.1 apartfrom the legal notice issued and acknowledgement received by the defendantmarked as Ex.A.2 and A.3. On the side of the defendant the mortgage deedexecuted by defendant and others in favour of Natesa Padayachi dated16.05.1968 marked as Ex.B.1 and the plaint and written statement filed inO.S.No.414 of 1985 and 827 of 1986 were marked as Ex.B.2 to B.7 apart fromanother document Ex.B.8 which a returned cover. The defendant’s side hasalso filed another Ex.B.9 dated 24.06.1985 which is a copy of thepartition deed executed in the plaintiff’s family. The learned TrialJudge on appreciation of evidence and considering the documents and havingcome to the conclusion that the defendant has not proved that Ex.A.1promissory note was not supported by consideration and also stating thatthe interest claimed at the rate of 9% is not usurious, has decreed thesuit as prayed for. It was as against the judgement and decree of theTrial Court the defendant has filed the present appeal. 4. The learned counsel for the appellant Mr.Murugamanickam, wouldcontend that as per Ex.B.9 dated 24.06.1985 there was a partition in theplaintiff’s family who have been carrying on money lending business andthe said document specifically states that even after partition the moneylending business shall continue. The suit promissory note was executed on21.07.1983 before the partition and by virtue of the continuation of theirmoney lending business as per Ex.B.9, it is contended by the learnedcounsel for the appellant that the plaintiff is deemed to have continuedthe money lending business. That apart he would submit that under Ex.B.1which is a mortgage deed executed by the defendant along with others infavour of Natesa Padayachi who is admittedly one of the brothers of theplaintiff and in respect of that suits were filed the plaint and writtenstatement of which have been marked as Ex.B2 to B7 and it was in respectof the interest amount due under the said mortgage document, the suitpromissory note came to be issued to Natesa Padayachi and that has been https://hcservices.ecourts.gov.in/hcservices/ used by the plaintiff for the purpose of recovery of money treating it asa promissory note. Therefore, according to the learned counsel for theappellant, the Trial Court has failed to consider the totality of thesituation while granting decree in favour of the plaintiff. 5. On the other hand, the learned counsel for the respondents wouldsubmit that Ex.B.1 mortgage deed itself is of the year 1968 while the suitpromissory note was executed 15 years thereafter namely, on 21.07.1983 andtherefore, there is absolutely no relationship between Ex.B.1 and Ex.A.1at all. That apart it is also his contention that the witnesses examinedon the side of the defendant D.W.2 himself has admitted that he is thefriend of the defendant and therefore, he has been procured only for thepurpose of making a false defense and in view of the same, according tothe learned counsel for the respondents, the Trial Court judgement isperfectly in order. 6. I have heard the learned counsel for the appellant as well as therespondents and perused the entire records. 7. In this appeal the point for determination is as to whether thejudgement and decree of the Trial Court in passing decree in favour of theplaintiff is wrong which deserves to be interfered by this Court. At theout set it is clear that the defendant has admitted the execution of thesuit promissory note Ex.A.1. Even a reading of the written statementfiled by the defendant shows that the execution of the suit promissorynote is not denied. The categoric terms in this regard in the writtenstatement of the defendant are as follows: "This defendant has left three pronotes in favour of theplaintiff, Chidambara Padayachi and another in favour ofNatesa Padayachi, brother of the plaintiff and the other onenow stands in favour of Madhavan in renewal of the pronote,then stood in favour of Bagiyam."8. But the defence is that even though he has executed the suitpromissory note, he has not received any consideration for such executionand his version is that the suit promissory note was handed over inrespect of the amount due to the plaintiff’s brother Natesa Padayachiunder mortgage deed executed by him along with others on 16.05.1968 markedas Ex.B.1, in respect of interest due there on. Therefore, as it iscorrectly found by the learned Trial Judge when once the defendant hasadmitted execution of Ex.A.1 the onus is heavily on the defendant to provethat for execution of the said Ex.A.1 he has not received anyconsideration as per Section 118 of the Negotiable Instruments Act. It isto substantiate his defense the defendant has produced the mortgage deeddated 16.05.1968 stated to have been executed by defendant and others infavour of Natesa Padayachi marked as Ex.B.1. When it is the case of thedefendant that it was in continuation of the said mortgage deed dated16.05.1968 and in respect of the interest due thereunder, he was made toexecute the suit promissory note and that was handed over to the plaintiff https://hcservices.ecourts.gov.in/hcservices/ at the direction of Natesa Padayachi, it is again for him to prove thefact with independent evidence. 9. When the defendant’s case is that apart from the suit promissorynote he has given two other promissory notes without receivingconsideration from the plaintiff, as correctly found by the learned TrialJudge, it is not known as to why the plaintiff has not taken steps toexamine any one of the witnesses who have signed in Ex.A.1 promissorynote, to prove his contention that no consideration was passed on the datewhen Ex.A.1 promissory note was executed. As far as the documents filedon the side of the defendant Ex.B.2 to B.7 the defendant as D.W.1 hasspecifically admitted that in those suits plaintiff was not a party and itwas the plaintiff’s brothers who have filed the suit. It is relevant topoint out that it is not even the case of the D.W.1 that his defense inthose cases are similar to the same which are raised in this suit.Therefore, it is clear that the defendant has not proved to thesatisfaction of the court the reason for relying upon Ex.B.2 to B.7. Onthe other hand, even assuming that there was a mortgage on 16.05.1968 infavour plaintiff’s brother Natesa Padayachi, apart from the fact that thedefendant has miserably failed to prove any relationship between Ex.B.1and Ex.A.1 suit promissory note, on the face of it, it is not believablethat there is any connection between these two documents since thedifference is nearly 15 years between these two documents which are notproperly explained and there were no evidence to connect the saiddocuments. If we refer to the evidence of D.W.2 who is stated to be anindependent witness and who had prepared Ex.A.1 promissory note, it istrue that he has stated in the chief examination that the plaintiff hasnot given Rs.25,000/- to the defendant under Ex.A.1 promissory note. Butit is not his case in the evidence that Ex.A.1 promissory note was givenby the defendant in favour of the plaintiff in respect of same due underthe mortgage deed executed by the defendant and others in favour of theplaintiff’s brother Natesa Padayachi. 10. On the other hand, D.W.2 who says that he is in the habit ofwriting promissory note and other documents, specifically admits that hehas not written any mortgage deed for the defendant by saying "gpujpthjpf;FFjitg; gj;jpuk; vJt[k; ehd; vGjtpy;iy thjp gpujpthjpf;F fpua xg;ge;jk; fpuag;gj;jpu';fs; Rkhh; 1 2“”vGjpapUg;ngd;". It is also seen that in the cross examination the said D.W.2has stated as follows: "A1 g[nuhnehl;oy; thjpaplk; gpujpthjp 21/7/1983 Mk; njjp buhf;fk; 25.000 bgw;Wf;bfhz;L mjw;f;F tl;oU:gha; 1 tPjk; nrh;j;J jd;Dila FLk;g tpahghu mtru epkpj;jk; bgw;Wf;bfhz;L thjpf;FvGjpf;bfhLj;jJs;shh;"This is the clear evidence of D.W.2 in the cross examination as recordedby the learned Trial Judge. Even assuming the contention of the learnedcounsel for the appellant is true that there has been a wrong recording ofevidence since it should be treated as a denial, as the D.W.2 in thesubsequent line has stated as follows: "gpujpthjpaplk; yhgk; bgw;Wf;bfhz;L A1 g[nuhnehl;ow;f;F bjhif bfhLf;ftpy;iy vd;W bgha; brhy;fpnwd; https://hcservices.ecourts.gov.in/hcservices/ vd;W brhd;dhy; rhpay;y",that is not the case of the defendant at all especially in thecircumstance that D.W.2 has not spoken in the line of the defense taken bythe defendant at all. As I have stated earlier when it is the specificcase of the defendant in the written statement as well as in his evidenceas D.W.1 that he had to execute the suit promissory note and along withother two promissory notes in respect of the interest due under themortgage deed Ex.B.1 to the plaintiff by the Natesa Padayachi and it wasat his direction the suit promissory note was handed over to theplaintiff, D.W.2 who is stated to have been prepared Ex.A.1 has not spokenanything about that. This fact in addition to the non examining of any ofthe witnesses under Ex.A.1 clearly goes to show the defense raised by thedefendants against Ex.A.1 is false and in any event the same as not beenproved with any tangible evidence has found by the learned Trial Judge. 11. In such circumstances, the contention of the learned counsel forthe appellant that Ex.B.9 partition deed dated 24.06.1985 entered in thefamily of plaintiff along with his brothers Natesa Padayachi and othersshows that after dividing the properties, the brothers have accepted tocontinue money lending business is in no way helpful to the case of thedefendants, for the simple reason that it all depends upon the defendantproving that he has not received consideration for execution of Ex.A.1promissory note which he has miserably failed. In such circumstances evenassuming that the plaintiff’s family has been carrying on business inmoney lending, that will not itself be sufficient to throw out theveracity of Ex.A.1 promissory note. 12. In view of the above said categoric findings on fact on thebasis of proper reasoning given by the learned Trial Judge I do not thinkthat the judgement and decree of the Court below deserves to be interferedby this Court. In view of the same, the judgement and decree of the TrialCourt passed in O.S.No.338 of 1986 dated 30.11.1989 is confirmed and theappeal stands dismissed with cost. nbjSd/-Asst.Registrar/true copy/ Sub Asst.RegistrarTo,1. The Addl. Subordinate Judge, Salem.2. The Section Officer, V.R.Section, High Court, Madras-104.+1 cc to Mr.A.K.Kumarasamy, Advocate Sr.No.26683.+1 cc to Mr.T.Murugamanikkam, Advocate Sr.No.26494.BK(CO)dcp/12.6.07A.S.No.1296 of 1990