High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 21.11.2007CORAM :THE HON’BLE MR. JUSTICE S.TAMILVANANA.S.No.152 of 1996 1. M.Palani2. G.Lakshmiammal .... Appellants/Defendantsvs.R.Periasamy .... Respondent/PlaintiffAppeal filed against the Judgment and Decree dated14.09.1995 made in O.S.No.220 of 1992 on the file of the SubCourt, Ranipet.For Appellants : Mr.G.RangarajanFor Respondent : Mr.R.Mohan JUDGMENTAggrieved by the Judgment and Decree, dated 14.09.1995 madein O.S.No.220 of 1992, on the file of the Sub Court, Ranipet, thedefendants in the suit have preferred this appeal. 2. The brief facts of the case are as follows :According to the respondent / plaintiff, on 01.01.1990,the appellants herein had borrowed a sum of Rs.25,000/- from therespondent for the purpose of purchasing a house property,executed the suit pronote, Ex.A.1 and promised to repay the samewith 36% interest. Subsequently, the appellants again obtained asum of Rs.7,000/- from the respondent on 04.02.1990 and executedthe second pronote, Ex.A.2, agreeing to repay the said amountwith 36% interest. As the appellants / defendants did not repaythe said amount with interest, the respondent herein filed thesuit before the trial court. 3. Considering the oral and documentary evidence and alsothe arguments advanced by both the learned counsel, the trialcourt decreed the suit with cost, directing the appellants /defendants to pay the amount with 18% interest from the date offiling of the suit till the date of decree and 6% after thedecree. Aggrieved by which, this appeal has been preferred by theappellants / defendants. https://hcservices.ecourts.gov.in/hcservices/

4. In the written statement filed by the first appellant andadopted by the second appellant, they have stated that thepronote, dated 01.01.1990, said to have been executed for a sumof Rs.25,000/- is a forged document. According to them, Ex.A.1,pronote was not executed by them. However, they admitted that thesecond pronote, Ex.A.2 was for a sum of Rs.7,000/- was executedby them and even for the said pronote, no amount was paid by therespondent. 5. The respondent / plaintiff, who was examined as P.W.1before the trial court has stated in his evidence that on01.01.1990, the appellants herein had obtained an amount ofRs.25,000/- by cash from him and executed the pronote, Ex.A.1 andsubsequently, on 04.02.1990, again they obtained a sum ofRs.7,000/- and executed the second pronote, Ex.A.2 in thepresence of witnesses, but they had not repaid the said amountwith interest, hence, he filed the suit. In the cross-examination, he has stated that the suit amount was obtained bythe appellants for the purpose of purchasing a house property. Itis not in dispute that the second appellant is a teacher and alsowife of the first appellant.6. P.W.2 is one of the attestor to Ex.A.1 and Ex.A.2 .According to him, the appellants 1 and 2 had received a sum ofRs.25,000/- on 01.01.1990 and executed the pronote, Ex.A.1 infavour of the respondent and on 04.02.1990, the appellantsagainreceived a sum of Rs.7,000/- and executed pronote, Ex.A.2 infavour of the respondent in presence of himself and anotherwitness. Exs.A.1 and A.2 pronotes were written by one Varadhan,who was also a teacher.7. It is an admitted fact that P.W.2 is the maternal uncleof the respondent, as well as the second appellant and the firstappellant is the husband of the second appellant. Though in thewritten statement, the appellants as defendants have denied theexecution of Ex.A.1, pronote and also passing of considerationfor both the pronotes. Even in the chief, the first appellant /D.W.1 has has admitted that in both the pronotes, he along withthe second appellant had signed. The first appellant has alsoadmitted that he along with the second appellant had received theconsideration, but he has stated that no witness was present,while they were affixing their signatures in the pronotes. In thecross-examination, the first appellant has given a contradictorystatement that the signature available in Ex.A.1 was not that ofhis signature. As per his evidence, in the cross-examination, theloan amount of Rs.25,000/- obtained by him was subsequentlydischarged by him and that the revenue stamp affixed therein wasalso teared by him. https://hcservices.ecourts.gov.in/hcservices/

8. The second appellant as D.W.2 has also admitted in herevidence that she had obtained Rs.25,000/- along with herhusband, the first appellant from the respondent herein. She hasalso admitted that she has signed in both the pronotes along withthe first appellant. According to her, they have discharged thedebts and also obtained receipt, but subsequently, the respondentgot back the same from them. According to the second appellant,while she asked to return the second pronote, the respondent hadassured for returning the same, but without returning the same,he filed the suit. The second appellant has admitted that she hasstudied up to S.S.L.C. and working as teacher in a primary schooland that before signing the pronotes, she had also read thecontents of the said documents.9. Though, the appellants have admitted their signaturesavailable in Ex.A.1 and Ex.A.2, pronotes and also receiving ofconsideration, their evidence, they had totally denied theexecution and also passing of consideration for the same in theirwritten statement. Further, in the cross-examination, at onepoint of time, the second appellant has disputed her admittedsignature available in the court summon and also in Ex.A.2,pronote, though she had admitted the same in her chiefexamination.10. As per Section 118 of Negotiable Instruments Act, 1981,when the execution of pronote is established, it has to bepresumed that consideration has been passed on the person, whoexecuted the same, until the contrary is proved. In other words,if execution is admitted, the burden is shifted on the defendantto prove that there was no consideration passed on the pronote.Here, in this case, though the appellants as defendants hadtotally denied the execution as well as the passing ofconsideration in their written statement, strangely, in theirchief examination, they have admitted the fact that they hadsigned in the pronotes and also passing of consideration, but inthe cross-examination they have given contradictory version withregard to the receiving of consideration and also pleadeddischarge without any legally acceptable evidence.11. The appellants have admitted that they have no enmitywith the attestor, P.W.2 and the scribe. Admittedly, P.W.2 is thematernal uncle of the respondent and the second appellant. P.W.2,the attestor to Exs.A.1 and A2 has given a cogent evidence thatthe appellants after having received the consideration in thepresence of himself and the other attestor, executed the suitpronotes, Exs.A.1 and A.2 on the dates specified therein.Further, the respondent has also produced the sale deed, underwhich the appellants had purchased the house property on23.05.1990 for a sum of Rs.77,500/-. https://hcservices.ecourts.gov.in/hcservices/

12. It has been admitted by the appellants in their chief,that they obtained loan from the respondent and executed twopronotes, Exs.A.1 and A.2, as they were in need of money forpurchasing the house property. Ex.B.1, admittedly a scrappedpronote, dated 01.01.1990 for a sum of Rs.25,000/- has noevidentiary value to disprove Ex.A.1.13. In the grounds of appeal, the appellants have averredthat the non-examination of the second attesting witness wouldaffect the case of the plaintiff is not a legal defence. Out ofthe two attestors to Exs.A.1 and A.2, one of the attestors hasbeen examined as P.W.2. He is a close relative of both theappellants as well as the respondent. He has clearly spoken toabout the execution and passing of consideration to theappellants 1 and 2 / defendants. Further, in the chief itself,the appellants have admitted the execution of the suit pronotesand also passing of consideration, though they have given a selfcontradictory version in their cross-examination.14. In such circumstances, I could find that there is noerror or infirmity in the Judgment and Decree of the court belowin holding that the case of the respondent / plaintiff has beenproved by oral and documentary evidence. Though the rate ofinterest has been stated at 36% per annum, in the pronotes, thetrial court has fixed the same at 18% till the filing of the suitand 6% subsequent interest, which is also just and reasonable.15. In the above circumstances, I hold that the appellantshave not made out any case in their favour and hence, the appealfails.16. In the result, confirming the Judgment and Decree passedby the trial court, the appeal is dismissed. However, there is noorder as to costs.Sd/Asst.Registrar/true copy/Sub Asst.Registrar tsvn https://hcservices.ecourts.gov.in/hcservices/ To1.The Subordinate Judge, Ranipet. 2.The Section Officer, V.R.Section, High Court,Madras-104. A.S.No.152 of 1996sky/5/1