Madrasdated High Court · 2025

S.A.No.656 of 20122.Parties are indicated herein as per their litigative status and ranking before the trial Court in O.S.No.238 of 2005.3.Despite the receipt of notice, the respondent neither appeared nor represented through his Counsel.4.Heard the arguments of the learned Senior Counsel, Smt.Hema Sampath appearing for the appellant/plaintiff.5.According to the plaintiff, the defendant was working as a coolie both at this residence and his lands. The defendant purchased land to an extent of 1.60 cents in R.S.No.109/9B by an auction conducted by the Principal District Munsif Court, Tindivanam in the year 1988. On 25.11.2000, the defendant, on receipt of a sum of Rs.42,000/- agreed to pay the same with interest at the rate of 12% executed a promissory note at Tindivanam in favour of the plaintiff. On 04.04.2002 by making part payment of Rs.500/-, the defendant has also made an endorsement in the said promissory note. Despite the requests made by the plaintiff, the 2/14 https://www.mhc.tn.gov.in/judis S.A.No.656 of 2012defendant did not come forward to repay either the principal or interest. Therefore, a legal notice was caused to be issued on behalf of the plaintiff on 30.12.2004. Despite the receipt of notice, the defendant neither issued a reply notice nor repaid the debt amount. Hence, the suit recovery of money was laid.6. Per contra, the defendant would inter alia contend that the defendant is an agricultural coolie and illiterate. From 1985 onwards, he had been working under the plaintiff at his residence as well as at his lands. The defendant purchased land for an extent of 1.60 cents in R.S.No.109/9B through auction conducted by the Tindivanam Munsif Court. As the defendant was working at the residence of the plaintiff, the plaintiff requested the defendant to sell the said property to him and received the Auction Certificate from him in the year 1989.6.1. He obtained loan from M/s.Meenakshi Finance, in which, the plaintiff is a partner and executed a promissory note in the year 1995 in favour of the said Finance Company and received a sum of Rs.25,000/-. He also furnished security for the said loan. At the time of execution of 3/14 https://www.mhc.tn.gov.in/judis S.A.No.656 of 2012said promissory note, the defendant signed in two blank pro-notes on the stamps at M/s.Meenakshi Finance. In 1998, he repaid the entire debt. The plaintiff on misrepresentation, obtained the Auction Certificate from him and did not return the same to him. Because of the attitude of the plaintiff, the defendant was scared and stopped going to his residence for work.6.2. In this regard, he lodged a complaint before the police for return of the Auction Certificate and because of the position of the plaintiff, no action was taken against him. On multiple times, he was threatened by the plaintiff through his hooligans and for the same, the defendant lodged many complaints before Police Station. As the plaintiff could not succeed in getting the sale deed in his favour, the plaintiff forged and fabricated the suit promissory note and laid a suit.7.Based on the divergent contentions, the trial Court framed relevant issues. At trial, to substantiate the plaint details, on the plaintiff’s side, the plaintiff has examined himself as P.W.1 and the attestor to Ex.A1-promissory note has been examined as P.W.2 and six documents were marked. Ex.A1 dated 25.11.2000 is the suit promissory note. Ex.A4 4/14 https://www.mhc.tn.gov.in/judis S.A.No.656 of 2012is the Auction Certificate dated 23.08.1998 issued by the District Munsif Court, Tindivanam in favour of the defendant in respect of Acre 1.60 cents land in R.s.No.109/9B. On the defendants’s side, the defendant has examined himself as D.W.1 and marked six documents.8.Upon consideration of oral and documentary evidence and after hearing the arguments advanced by the counsels for both sides, the trial Court concluded that the plaintiff is entitled for the relief of recovery of money and decreed the suit in favour of the plaintiff.9.Aggrieved, the defendant preferred Appeal before the Principal Sub Court, Tindivanam, The 1st Appellate Court, upon consideration of case records and after hearing the arguments advanced by the learned counsels on either side, accepted the case of the defendant and allowed the Appeal by setting aside the judgment and decree of the trial Court passed in O.S.No.238 of 2005.10.Aggrieved by the judgment and decree of the first appellant Court, the plaintiff herein has preferred the present Second Appeal.5/14 https://www.mhc.tn.gov.in/judis S.A.No.656 of 201211.Mrs.Hema Sampath, learned Senior Counsel appearing for the appellant for Mrs.R.Meenal, would strenuously argue that once the defendant admitted the signature found in the suit promissory note, presumption under Section 118 of the Negotiable Instruments Act arises in favour of the plaintiff and the said presumption is a rebuttable presumption. It is her further argument that though the defendant has examined himself as D.W.1, the said rebuttal presumption arose in favour of the plaintiff is not suitably rebutted by the defendant. However, by way of abundant caution, the plaintiff has examined the attestor to the promissory note and he has spoken about the attestation made by him in both the suit promissory note (Ex.A1) and the endorsement made on the reverse page of Ex.A1 promissory note. Therefore, it is incorrect on the part of the Appellate Court that the plaintiff is duty bound to prove the execution of the promissory note. It is also incorrect that the appellate Court has held that the plaintiff should have resorted to obtaining of opinion from the Hand Writing Expert.12. In consideration of the above details, the following Substantial 6/14 https://www.mhc.tn.gov.in/judis S.A.No.656 of 2012Questions of Law arise for consideration:-a) Whether in law the 1st Appellate Court was incorrect once when the respondent had admitted his signature in the promissory note, the appellant would succeed as he is entitled to presumption under Section 114 of the Indian Evidence Act.b) Whether in law the 1st Appellate Court was incorrect as it was for the respondent to prove his defence as the burden had shifted on him and that he had failed to do so?13. The sum and substance of the plaintiff’s case is that the defendant on receipt of Rs.42,000/- from the plaintiff, executed a promissory note on 25.11.2000 and he has also paid Rs.500/- on 04.04.2002 in respect of the said debt. As he failed to repay the said amount, despite his request for many times, a legal notice was caused to be issued to the plaintiff and thereafter, a suit for recovery of money was laid.14. The defence theory put forth by the defendant is that he did not receive any loan from the plaintiff. He worked at the residence of the 7/14 https://www.mhc.tn.gov.in/judis S.A.No.656 of 2012plaintiff and at his lands. At that time of execution of promissory note at M/s.Meenakshi Finance in the year 1995, he signed two blank promissory notes at Meenakshi Finance at the time of getting the loan of Rs.25,000/- and the said promissory note was forged and with that the suit was laid by the plaintiff.15. Once the signature found in the promissory note is admitted by the defendant, as per Section 118 of Negotiable Instrutments Act, the presumption arises in favour of the plaintiff. It is a rebuttable presumption. The defendant may rebut the presumption arose in favour of the plaintiff through oral and documentary evidence. He may even rely upon the cross examination of P.W.1.16. Plaintiff is examined as P.W1. He has filed his proof affidavit in line with the plaint details. The plaintiff has examined one of the attestor to the promissory note P.W.2. It is the evidence of P.W.2 that on 25.11.2000, the defendant obtained loan of Rs.42,000/- from the plaintiff for his family expenses and executed the said promissory note. During his cross examination P.W.2 would state that “/// 04/04/2002 md;W gpujpthjp 8/14 https://www.mhc.tn.gov.in/judis S.A.No.656 of 2012nkw;go gpuhk;rhp nehl;L flDf;fhf thjpaplk;; U:/500-- brYj;jpdhh;/ ,e;j tut[ thrfk; vGjpath; bry;tk;/ tut[ nkw;Fwpg;gpy; ehDk; $dhh;j;jdk; vd;gtUk; rhl;rp ifbahg;gk; nghl;nlhk;/ gpuhk;rhp nehl;L thrfk; kw;Wk; tut[ nkw;Fwpg;g[ thrfk; Mfpatw;iw vGjpa bry;tk; 04/01/2010 md;W ,we;Jtpl;lhh;/ uh$p ft[z;lh; Rkhh; 7 Mz;LfSf;F Kd;g[ ,we;J tpl;lhh;/ thjp ngUf;F gpujpthjp gpuhk;rhp nehl;L vGjpf; bfhLf;f tpy;iy vd;gJ jtW/ thjpaplkpUe;J gpujpthjp U:/42.000-- fld; th’;ftpy;iy vd;gJk; jtW/ tut[ nkw;Fwpg;gpy; gpujpthjp ifbaGj;J nghltpy;iy vd;gJ bgha;///”17. The defendant has examined himself as D.W.1 and he has deposed to the effect that he signed in the blank promissory note at M/s.Meenakshi Finance at the time of receiving the loan and the said signed blank promissory note is forged. Apart from the evidence of plaintiff (PW1) Attestor to the promissory note is examined as P.W.2. He has spoken about the attestation made by him in Ex.A1 promissory note as well as payment endorsement in Ex.A1. Over the page of Ex.A1, payment endorsement is found. It is clear evidence of P.W.2 that the suit promissory note was penned by one Selvam and he is no more. During the cross examination of P.W.2, no details advantageous to the 9/14 https://www.mhc.tn.gov.in/judis S.A.No.656 of 2012defendant’s case was elicited.18. As per Section 101 of the Indian Evidence Act, 1872, one who pleads has to prove the existence of facts that they assert to support their legal right or liability. In the present case, the defendant has pleaded forgery to the effect that he has signed blank promissory note, and the same is forged and suit was filed against him.19.However, on a careful scrutiny of the evidence of P.W.1 and D.W.1, it appears that the defendant had money transaction with M/s.Meenakshi Finance.20.As regards the signature found in payment endorsement details, defendant has denied his signature. P.W.1 has spoken about the payment details and he has spoken about the signing of the defendant in the payment endorsement. P.W.2 Kasirajan one of the attestors to the payment endorsement details, also has stated in his proof affidavit that on 04.04.2002, the defendant paid a sum of Rs.500/- for the debt obtained through promissory note. Since because P.W.2 is working under the 10/14 https://www.mhc.tn.gov.in/judis S.A.No.656 of 2012plaintiff, his evidence cannot be in toto rejected. This Court has carefully gone through the entire evidence of P.W.2. He has in fact, in clear terms, has spoken about his attestation made in Ex.A1 promissory note and also attestation made by him in the payment endorsement details.21. Signature found in the Ex.A1 is admitted by the defendant that it is his signatures found in the promissory note, of which, one is found on the stamp and another one is found below the stamp.22. More so, it is also pertinent to note that the plaintiff has issued a legal notice to the defendant, calling upon him to repay the debt in connection with Ex.A1 promissory note. The defendant, despite the receipt of legal notice, did not choose to either send the reply notice nor to repay the debt. Defendant has denied the signature found in the payment endorsement details. The plaintiff has proved the same by examining one of the attestors in respect of execution of promissory note and in respect of payment endorsement details through P.W.2.23.Defendant did not take any steps to obtain the opinion of hand 11/14 https://www.mhc.tn.gov.in/judis S.A.No.656 of 2012writing expert as regards forgery said to have been made in respect of execution of the promissory note and the payment endorsement details. Though the defendant has admitted his signature found in Ex.A1, he has also pleaded that he signed in the blank promissory note. Once the signature found in the promissory note [Ex.A1] is admitted by the defendant and not withstanding the said fact, the plaintiff by examining himself as P.W1, one of the attestor to Ex.A1-promissory note having been examined, presumption arises in favour of the plaintiff under Section 118 of the Negotiable Instruments Act, 1881. The said presumption is a rebuttable one. The defendant is at liberty to rebut the said presumption through oral or documentary evidence. The defendant may even rely upon the cross examination of plaintiff's side witness. But the defendant has not rebutted the presumption suitably. P.W.1 (plaintiff) has taken pains to prove the execution of the promissory note as well as the payment endorsement details. Taking into consideration of oral testimony and the documentary evidences, the trial Court has come to a correct conclusion that the suit claim is proved and decreed the suit as prayed for. The 1st Appellate Court disbelieved the evidence of P.W.2 has to be interfered with. There is no enmity between the defendant and P.W.2. In 12/14 https://www.mhc.tn.gov.in/judis S.A.No.656 of 2012such a view of the matter the judgment of the 1st appellate Court has to be interfered with for the reasons mentioned supra.24.Based on the aforestated discussions, the substantial questions of law are answered in favour of the plaintiff/appellant.25.Above being the position, this Second Appeal stands allowed. Sequel to this, the judgment and decree dated 20.08.2011 made in A.S.No.4 of 2011 passed by the Principal Sub-Court, Tindivanam, stands set aside and the Judgment and Decree dated 31.08.2010 made in O.S.No.238 of 2005 passed by the Principal District Munsif Court, Tindivanam, stands confirmed. There is no order as to costs.29.05.2025Index : Yes/No Speaking / Non-speaking ordergbiR.KALAIMATHI, J.,gbi13/14 https://www.mhc.tn.gov.in/judis S.A.No.656 of 2012To:1. The Principal Sub-Court, Tindivanam.2.The Principal District Munsif’s Court, Tindivanam.3. The Section Officer, V.R.Section, High Court of Madras, Chennai.S.A.No.656 of 201229.05.202514/14