R.Jayaraman v. S.Natarajan

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 03.07.2009CORAM:THE HONOURABLE MR.JUSTICE M.VENUGOPALA.S.No.474 of 2002R.Jayaraman .. Appellant/Plaintiff-vs-S.Natarajan .. Respondent/DefendantThis appeal is filed under Section 96 of CPC against theJudgment and Decree dated 12.10.2001 in O.S.No.89 of 2000 on the fileof Court of Additional District Judge, Karaikal.For appellant : : Mr.S.ViswanathanFor respondent : : Mr.S.NatarajanJ U D G M E N T This appeal has been projected by the appellant/plaintiff asagainst the Judgement and decree dated 12.10.2001 made in O.S.No.89of 2000 on the file of Additional District Judge, Karaikal indismissing the suit claim in entirety.2. The germane facts of the plaint are as follows:The respondent/defendant has borrowed a sum of Rs.1,00,000/- on27.12.1998 and executed a promissory note agreeing to repay theprincipal amount along with the interest at 18% p.a. Therespondent/defendant has not repaid the due loan amount to theappellant/plaintiff inspite of repeated demands made thereto. Hencethe appellant/plaintiff has issued a notice to therespondent/defendant demanding payment of the said amount. A replydated 3.10.2000 has been sent by the respondent/defendant statingthat there has been no money transaction between him and theappellant/plaintiff on 27.12.1998 and that he is not in receipt of asum of Rs.1,00,000/- from the appellant/plaintiff and also statedthat he has given a blank promissory note stamped and signed by himas security towards chit transactions with the appellant/plaintiffand that the appellant/plaintiff has filled up the same and convertedinto a promissory note and thereupon issued a notice. A rejoinderdated 18.11.2000 has been issued by the appellant/plaintiff statingthat there is no truth in the reply notice and that the suittransaction has taken place on 27.12.1998 at the residence of the https://hcservices.ecourts.gov.in/hcservices/ appellant/plaintiff etc., More over, the appellant/plaintiff and therespondent/defendant being working co workers in S.R.Mills, Nedungaduand the appellant/plaintiff on his voluntary retirement has receiveda lumpsum amount from the mills and kept the money in his SavingsBank Account with the Lakshmi Vilas Bank Limited, Karaikal, andhelped the defendant in respect of his sundry debts.3. The respondent/defendant has commenced the act of lendingmoney to various individuals receiving usurious interest from hisdebtors. But he has not cared to repay the loan due to theappellant/plaintiff . For the rejoinder dated 18.11.2000, issued bythe appellant/plaintiff, the respondent/defendant has not given areply and further has also not complied with the demand made in thenotice. Hence the suit is laid for recovery of principal amount ofRs.1,00,000/- with interest at 18% p.a from the respondent/defendant(for the period from 27.12.1998 to 27.11.2000) amounting toRs.34,500/- totalling in all a sum of Rs.1,34,500/- together withfuture interest and costs.4.The respondent/defendant has filed a detailed writtenstatement taking the pleas that the appellant/plaintiff has been amill worker and that the respondent/defendant is still working in theSoundaraja Mills and that when the appellant/plaintiff has been aworker, he has conducted different groups of monthly chits from theyear 1991 and that respondent/defendant has been a subscriber in allsix groups of chits and that when the respondent/defendant has been asuccessful bidder in the auction of chits,at that time, theappellant/plaintiff has obtained six unfilled promissory notes signedby the respondent/defendant without specifying the dates, when thechit amounts have been paid to the respondent/defendant and furtherthe respondent/defendant has been a subscriber of chits which havebeen conducted by the appellant/plaintiff in the year 1993 to 1995and when the chit amount has been disbursed , the appellant/plaintiffhas retained the unfilled promisory notes as security and more overthe respondent/defendant has been regular in repayment of chit amountand the balance amounts have been completely paid on 1.11.1998 forwhich a receipt has been issued by the appellant/plaintiff.5. Added further, it is the specific case of therespondent/defendant that the appellant/plaintiff has not returnedthe promissory notes stating that the same will be returned afterfinding them. The respondent/defendant trusted the plaintiff andtherefore has not insisted the appellant/plaintiff to return theunfilled promissory notes. Again, the respondent/defendant has joinedas a subscriber in the chit in the year 1998 and has received thechit amount in the acution. When the appellant/plaintiff has beenpaying the chit amount, he insisted that the respondent/defendant tosign in fresh promissory notes and the respondent/defendant refusedto sign the same and therefore, a dispute has arisen between theparties which resulted in an issuance of an Advocate notice by theappellant/plaintiff claiming a sum of Rs.1,00,000/- from therespondent/defendant. A suitable reply dated 3.10.2000 has beenissued to the appellant/plaintiff for which, a rejoinder on https://hcservices.ecourts.gov.in/hcservices/

18.11.2000 has been issued by the appellant/plaintiff with adeveloped version etc and an undated signature and stamp affixed onthe promissory note and the manner in which the same has beenprepared indicates that no transaction has taken place on 27.12.1998.6. The respondent/defendant has issued a notice dated 13.2.2001to the appellant/plaintiff requiring him to return all the promissorynotes for which a reply dated 22.2.2001 has been issued by theappellant/plaintiff. In fact, the appellant/plaintiff has received asum of Rs.33,416/- alone on his voluntary retirement on 31.1.1996.The promissory note in and by which the appellant/plaintiff makes aclaim is not supported by consideration and no money transactionshave taken place on 27.12.1998.7. Before the trial Court, on the side of theappellant/plaintiff witness P.W.1 has been examined and Exs A1 to A5have been marked and on the side of the respondent/defendant, D.W.1has been examined and Exs B1 to B5 have been marked.8. On an appreciation of oral and documentary evidence and afteranalysing the same , the trial Court has ultimately come to theconclusion that the suit promissory is not supported by considerationand that the respondent/defendant is not liable to pay the suitamount together with interest thereto and resultantly dismissed thesuit with costs. 9. The points that arise for determination in this appeal are"1.Whether the suit promissory note is true andgenuine one and duly supported by consideration ?2. Whether the appellant/plaintiff is entitled tothe claim the suit amount as prayed for?10. This Court has heard the learned counsel appearing for theparties and noticed their contentions.11. Point Nos.1 and 2 Contentions ,Discussions and Finding:The learned counsel for the appellant/plaintiff urges before thisCourt that the trial Court has not taken into account of the factthat the respondent/defendant , after receiving the consideration hasduly executed Ex A1 promissory note and therefore, therespondent/defendant is liable to pay the suit amount andrespondent/defendant after admitting the execution of Ex A1promissory note then, it is for him to prove that the considerationhas not been received and this vital fact of the matter has not beentaken note of by the trial Court and moreover, the burden of proofhas been wrongly placed on the appellant/plaintiff in disregard tothe ingredients of Section 118 of Negotiable Instruments Act and infact for the suit promissory note consideration has been paid whichis proved by the appellant/plaintiff as per Ex A4 Savings BankAccount and withdrawal of the amount on 26.12.1998 and that Ex A4savings bank account will clearly establish that the considerationhas been paid for Ex A1 promissory note and added further Section 20of the Negotiable Instruments Act enjoins, the holder to fill up the https://hcservices.ecourts.gov.in/hcservices/ blanks and negotiate the instrument and hence Ex A1 has been provedto have been duly executed and as a matter of fact, therespondent/defendant neither examined any other witness nor file anydocumentary proof in regard to his allegation that he has given otherblank promissory note to the appellant/plaintiff and in civilproceedings, it is only the appellant/plaintiff who is to prove thecase and it is not for the respondent/defendant to rebut thepresumption under Section 118 of the Negotiable Instruments Act andwithout any acceptable evidence, the trial Court has committed anerror in holding that the respondent/defendant has executed the blankpromissory note while withdrawing the chit amount and that the saidblank promissory note has been made used by the appellant/plaintiffand also that the trial Court has failed to consider that merelybecause there is a discrepancy in regard to the evidence of P.W.1 asto the investment of Rs.1,00,000/- obtained on retirement , the samewill not in any way affect the case of the appellant/plaintiff andtherefore prays for allowing the appeal in furtherance of substantialcause of justice.12. Continuing further, the learned counsel for theappellant/plaintiff contends that the respondent/defendant has notproduced any document to show that he is a subscriber of chit andfurther that no one gives any promissory note in a blank form andthe practice in the chit company is to take the promissory note fromthe borrower duly filled therein and a borrower in a chit transactionis called the price subscriber and that the respondent/defendant hasborrowed a sum of Rs.1,00,000/- from the appellant/plaintiff andexecuted Ex A1 promissory note thereto on 27.12.1998 agreeing torepay the principal amount together with interest at 18% p.a. andsince the respondent/defendant has not repaid the loan amount due tothe appellant/plaintiff, he is entitled to recover the same. 13. The learned counsel for the appellant/plaintiff has reliedon a decision of this Court reported in Mohammed Ali-v- Abdul Sinab(2001(1) CTC 281) wherein it is inter alia observed that ' theplaintiff has proved the execution of the promissory note and alsopassing of a consideration and that the presumption under Section118 of the Negotiable Instruments Act will arise once the defendantadmits the execution and further Section 20 of the NegotiableInstruments Act authorises the holder of signed NegotiableInstruments to fill up the blanks and to negotiate such instrumentsand that the presumption will arise in favour of the plaintiff onproving that the defendant has executed promissory notes on receivingthe consideration and that the defendant having admitted theexecution of promissory notes cannot deny his libility. In theaforesaid Judgment, it is held that the defendant has to rebut thepresumption under Section 118 of Negotiable Instruments Act bydirect or by bringing on record preponderance of probabilities andthe defendant omitting to discharge his burden then the decree ofthat Court has been confirmed.14. In this connection, it is pertinent to refer to the evidenceof P.W.1/plaintiff to the effect that he has lent a sum of https://hcservices.ecourts.gov.in/hcservices/ Rs.1,00,000/- after withdrawing a sum of Rs.1,00,000/- from the bankon 27.12.1998 for which Ex A1 promissory note has been executed bythe respondent/defendant and that while he has been working in theSoundaraja Mills before 5.1.2001, he has conducted a chit in whichthe respondent/defendant has been a member and in the group, therespondent/defendant has taken a last chit for which he has paid theamount and it is not correct to state that at the time when he hasconducted a chit, he has received five unfilled promissory notes fromthe respondent/defendant and for the past five years, he is notconducting any chit transaction and that he is not in a possession ofunfilled and signed promissory notes of the respondent/defendant asclaimed and that it is not correct to state that he has executed ExB1 dated 1.11.1998 letter and the wording of the said letter has notbeen written by him and it is wrong to state that he has signed thesame on 1.11.1998 and that his signature has been forged in the saiddocument.15. It is relevant to make a mention that P.W.1 during hiscross examination has specifically stated that after the chit isover, he has closed the accounts of the respondent/defendant and thathe is keeping the income receipt dealings in regard the chitconducted by him but he has not in a possession of the accounts forthe chits in which the respondent/defendant has been a subscriber andthat he has retired from Soundaraja Mills in the year 1998 and alsoadded that he retired in the year 1996 and his pensionary benefitshave been received by him during 1996 and only from the amountreceived at the time of his retirement in 1996, he has lent a sum ofRs.1,00,000/- to the respondent/defendant and a week before on27.12.1998, the respondent/defendant has asked him for a loan with aview to discharge his debts and this incident has taken place insidethe mill where they have been working and at that time, he has beenproceeding to his work and no witnesses are present and on 27.12.1998at about 6.00 0' clock in the morning, the respondent/defendant hascome to his house and received the loan and Ex A1 promissory note hasbeen brought by the respondent/defendant and the recitals in thepromissory note , after being written by him(Plaintiff) has beensigned by the defendant with his own pen. It is to be noted that theplaintiff being a holder in due course is entitled to fill up theblanks in a instrument and negotiate it in law.16. Continuing further, it is categorical evidence of P.W.1 thatin the Soundaraja Mill finance, he has deposited his money and thesaid money belongs to his father in law and that he has taken thesaid amount and he cannot say in which year, he has deposited thesaid amount and he has withdrawn the same in that year itself.17. D.W.1 /respondent/defendant in his evidence has deposed thatthe appellant/plaintiff has conducted six group chits in the year1991 which he has been a subscriber and in all the six chits, he hastaken part and for the chits taken by him, the appellant/plaintiffhas given the amount and at the time, the appellant/plaintiff whilepaying the amount, has received his signature as a security in theunfilled promissory notes and even for the chits conducted by the https://hcservices.ecourts.gov.in/hcservices/ appellant/plaintiff during 1993-94,1994-95, he has been a subscriberand the appellant/plaintiff has given him the money after he hastaken the chits and at the time, when the money has been paid by theappellant/plaintiff before that the appellant/plaintiff has kept sixpromissory notes signed by him as security and at the time when hesigned in Ex A1 promissory note, the same has remained unfilled andthe stamps have been affixed . ExA1 promissory note is the year 1991and this revenue stamps are not in existence in 1998. 18. Countering the submission of the learned counsel for theappellant/plaintiff, the learned counsel for the respondent/defendantsubmits that in paragraph 2 of the plaint, the appellant/plaintiffhas specifically averred that he has given up voluntary retirementand received a lumpsum payment from the Soundaraja Mills and kept themoney in his savings Bank Account with Lakshmi Vilas Bank, Karaikalbut the appellant/plaintiff during his cross examination hasspecifically mentioned that he has retired from the SoundararajaMills in the year 1998 and later has stated that he has retired inthe year 1996 and he has received his retirement benefits in the year1996 and only from the retirement benefits amount received in theyear 1996, he has lent a sum of Rs.1,00,000/- to therespondent/defendant as loan, and further he has not deposited hispensionary benefits in Bank and that he has given the same to hisuncle and how the appellant/plaintiff can lend such a huge amount on27.12.1998 to the respondent/defendant that too on a promissory noteand evidence of the appellant/plaintiff is that he lent a sum ofRs.1,00,000/- to the respondent/defendant will amply prove thefalsity of the appellant/plaintiff's case and further more, theevidence of P.W.1 is to the effect that one week prior to 27.12.1998,the respondent/defendant has asked for a loan with theappellant/plaintiff for the purpose of discharge his loan andtherefore, prevaricating and destructive version of theappellant/plaintiff in developing his case does not inspire theconfidence of this Court and the same is not accepted .19. At this stage, a perusal of Ex A4 Savings Pass Book ofLakshmi Vilas Bank,Karaikal, entry shows that on 26.12.1998 a sum ofRs.1,02,000/- has been withdrawn by the appellant/plaintiff. Ifreally, the said amount of Rs.1,02,000/- has been withdrawn by theappellant/plaintiff on 26.12.2008 as evidenced by Ex A4, then theversion projected by the P.W.1/plaintiff that he has lent a sum ofRs.1,00,000/- to that the respondent/defendant from the amountreceived by him in the year 1996 is clearly a contradictory andincorrect which cannot stand scrutiny before a Court of law. Hencethis Court is of the considered view that the appellant/plaintiff hasnot come out with clean hands in presenting the case in a cogent andconvincing manner to the subjective satisfaction of this Court.20. Be that as it may, the learned counsel for therespondent/defendant cites the decision of the Hon'ble Supreme Courtin M.S.Narayana Menon @ Mani-v- State of Kerala(2006(3) CTC 730)is to the effect that as per Section 118(a) of the NegotiableInstruments Act, the Court shall presume that Negotiable https://hcservices.ecourts.gov.in/hcservices/ Instrument is for consideration unless and until after consideringmatter before it, Court either believes that consideration does notexist or considers non-existence of consideration so probable thatprudent man himself under the circumstances of the case, to act uponsupposition that the consideration does not exist and the rebuttal ofsuch presumption requires probable defence to be raised by partyagainst whom presumption lies etc.,21. The learned counsel for the respondent/defendant contendsthat the burden upon the defendant proving the non-existence ofconsideration can be either direct or bringing on record thepreponderance of probabilities by reference to the circumstances uponwhich he relies etc., In short, the contention of therespondent/defendant is that he has adduced evidence before the trialCourt is that on a preponderance of probabilities, there is noconsideration for Ex A1 in the manner pleaded in the plaint or spokento by the plaintiff's witness and therefore the onus of proof lieson the appellant/plaintiff and the general presumption hasdisappeared and as per Section 118 of the Negotiable Instruments Actand therefore, the respondent/defendant is no concerned about thesame any longer, and in a civil case, the respondent /defendant maynot let in any evidence to discharge the initial burden placed onhim. Moreover, a presumption is only a legal or factual assumptiondrawn from existence of certain facts.22. Also the decision of this Court in Swaminanthan-v- M.Kumar(2007-1 L.W.797) is relied on the side of the respondent/defendant toshow that the legal presumption under Section 118 of NegotiableInstruments Act has been rebutted by the defendant and the burden isshifted to the plaintiff passing of consideration under Ex A1 promissory note. One cannot ignore an important fact thatP.W.1/plaintiff has specifically deposed in his evidence that he iskeeping the income and expenditure accounts in regard to the chitsconducted by him but he has not in possession of the accountsbelonging to the chits in which the respondent/defendant has been amember and this kind of evidence is hardly to be believed and thattoo at a time when a specific plea is taken on the side of therespondent/defendant that the appellant/plaintiff has made use of theunfilled and signed promissory note of the respondent/defendant whichhave been given earlier.23. Even though, the appellant/plaintiff has denied thesignature in Ex B1 letter and further notwithstanding the fact thathe has denied the contents of recitals found in the said document.On a perusal of the plaint, this Court comes to the inevitableconclusion that the signature of the plaintiff found in the plaintand the signature found in Ex B1 letter are clearly that of theappellant/plaintiff. Further more, a perusal of the signature of theappellant/plaintiff found in the vakalat also clinchingly point outthe signature found in vakalat is only that of theappellant/plaintiff. Indeed, as per Section 73 of the IndianEvidence Act, the Court of law is empowered to compare the disputedsignature of a person seen in documents. There is no legal bar for a https://hcservices.ecourts.gov.in/hcservices/ Court to compare the disputed signature with its own eyes with thatof proved signature of a person. However, the admitted signature mustbe contemporaneous one or prior to the filing of the suit and thesame is permissible . In fact, a Court of law need not get expertopinion in each and every case, though the Court must be slow inventuring on an opinion on the basis of the mere comparison. 24. The power of the Court in regard to the comparison ofsignature as per Section 73 of the Indian Evidence Act, is inherentand by exercising the said power, this Court a perusal of Ex B1letter comes to the inescapable conclusion that the signature in ExB1 letter is only that of the appellant/plaintiff and more over, therecitals found in Tamil in Ex B1 letter in unequivocal terms pointout that there is no outstanding between the respondent/defendantand the appellant/plaintiff in regard to the chit transactions. Ex B1letter is dated 1.11.1998. If really, there is no outstanding amountbetween the parties as on 1.11.1998 as per Ex B1 letter, then thesuit promissory note dated 27.12.1998 must be a concocted one and forthe existence of Ex A1 suit promissory note, there is no tangible andaccepted evidence on the side of the appellant/plaintiff worthaccepting.25. Per contra, the stand taken by the respondent/defendant isthat there is no due between the parties as per Ex B1 and more overthat the appellant/plaintiff has not returned the earlier promissorynotes and further that at the time, when he is executed thepromissory note, the same has remained unfilled and that the stampsaffixed in Ex A1 promissory note do not relate to the year 1998 andit belongs to the year 1991 clearly probablise the case of therespondent/defendant in a preponderant manner but no considerationhas taken place on 27.12.1998 in the considered opinion of this Court.26. On a careful consideration of respective contentions and ontaking note of the cumulative circumstances of the case in anintegralopinion of this Court is of the considered view that theappellant/plaintiff has not established to the satisfaction of thisCourt that Ex A1 has been true, genuine and valid document supportedby adquate consideration and resultantly the appeal fails.27. In fine, for the foregoing reasons, the appeal is dismissedwithout costs and resultantly, the Judgment and decree of the trialCourt in O.S.No.89 of 2000 are affirmed. Sd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ sgTo1.The Additional District Court, Karaikal2.The Section Officer, V.R.Section,High Court, Madras-104.1 cc To Mr.R.Natarajan, Advocate, SR.285281 cc To M/s.A.Muthukumar, Advocate, SR.27528A.S.No.474/2002ksk(co)pmk.24.8.2009.