Ponnusamy v. Rukmaniammal

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE: 16-07-2007CORAMTHE HONOURABLE MR.JUSTICE M.JAICHANDRENSecond Appeal No.804 of 2003Ponnusamy.. Appellant./Defendant VersusRukmaniammal.. Respondent/Plaintiff The second appeal has been filed against the judgment anddecree of the Subordinate Judge, Kallakurichi, passed inA.S.No.45 of 1999, dated 08.02.2002, confirming the judgment anddecree of the Principal District Munsif, Kallakurichi, passed inO.S.No.1135 of 1995, dated 03.04.1998.For Appellant : Mr.K.SrinivasanFor Respondent : Ms.Mythili Suresh for M/s.Sarvabhauman AssociatesJ U D G E M E N TThe second appeal has been filed against the judgment anddecree, dated 08.02.2002, passed by the Subordinate Judge,Kallakurichi, in A.S.No.45 of 1999, confirming the judgment anddecree, dated 03.04.1998, passed by the Principal District Munsifin O.S.No.1135 of 1995.2. The defendant in the suit O.S.No.1135 of 1995 is theappellant in the present second appeal. The suit had been filedby the plaintiff for the recovery of a sum of Rs.8,450/-, basedon a promissory note said to have been executed by the defendant.3. The brief facts of the case, as stated by the plaintiffare as follows:The plaintiff had stated that the defendant had borrowed asum of Rs.7,000/- as loan, on 09.08.1993, from Senthamarai SelviW/o.Kothandaraman, residing at Patti Street, Themmoor Village, https://hcservices.ecourts.gov.in/hcservices/ Kattumannar Koil Taluk, promising to repay the said amount, with12% interest, by executing a promissory note. However, thedefendant had not repaid the said amount. Thereafter, SenthamaraiSelvi had made over the promissory note to the plaintiff forproper consideration. The plaintiff had issued a legal notice,dated 26.10.1995, to the defendant, for which the defendant hadissued a reply notice, dated 20.11.1995. Thereafter, theplaintiff had filed the suit in O.S.No.1135 of 1995.4. In the written statement filed by the defendant theclaims made by the plaintiff have been denied. It has been statedthat the defendant has not borrowed the sum of Rs.7,000/- fromSenthamarai Selvi, nor has he executed a promissory note, on09.08.1993. There were no monetary transaction between theplaintiff and the defendant. The claim of the plaintiff that thepromissory note had been made over to the plaintiff is false. Thedefendant had issued a suitable reply to the legal notice sent bythe plaintiff. In fact the defendant had borrowed a sum ofRs.5,000/- from Kothandaraman, husband of Senthamarai Selvi andwhen the defendant had met Kothandaraman to settle the matter,Kothandaraman has demanded a high rate of interest and since thedefendant had refused to pay the same, the said Kothandaraman hadlodged a complaint before the police. The defendant had issued alegal notice and thereafter, he had repaid the loan. Only with anulterior motive of harassing the defendant, Kothandaraman hadcaused the filing of the suit through the plaintiff as though thepromissory note had been made over to the plaintiff by his wifeSenthamarai Selvi. In such circumstances, the suit has to bedismissed. 5. Based on the averments made by the plaintiff in herplaint and by the defendant in his written statement, the trialCourt had framed the following issues for consideration:i) Whether the plaintiff is entitled to the suit claim ofthe principal amount along with interest and costs.ii) Is it true that the defendant had not executed thepromissory note, dated 09.08.1993, after borrowing a sum ofRs.7,000/- from the plaintiff.iii) Whether it is correct to state that the making over ofthe promissory note, on 15.09.1995, is false.iv) Whether it is correct to state that the plaintiff hadexecuted a promissory note on 10.04.1992 after getting Rs.5000/-from Senthamarai Selvi Kothandaraman and that Kothandaraman hadexecuted it for the interest?v) To what relief the plaintiff is entitled to?6. The plaintiff had contended that the defendant hadborrowed a sum of Rs.7,000/-, as loan, from Senthamarai Selvi,wife of Kothandaraman, by executing a promissory note dated https://hcservices.ecourts.gov.in/hcservices/

09.08.1993, marked as Exhibit A-1 and after the promissory notehad been made over to the plaintiff the defendant had not repaidthe amount borrowed by him despite the issuance of notice in thatregard.7. On the contrary, the defendant had stated that he had notexecuted the promissory note, as claimed by the plaintiff. Infact, the defendant had borrowed a sum of Rs.5,000/- fromKothandaraman, the husband of Senthamarai Selvi based on apromissory note and that the defendant had returned the saidamount borrowed by him and had received back the promissory noteexecuted by him in favour of Kothandaraman. This fact has notbeen denied by the plaintiff. The defendant had submitted by wayof oral evidence that he had borrowed a sum of Rs.5,000/- fromKothandaraman by executing a promissory in his favour which hasbeen marked as Exhibit B-2 and that he had not borrowed any othersum from the said Kothandaraman.8. The trial Court had found that Exhibit B-2 is apromissory note executed by the defendant in favour ofKothandaraman, on 10.04.1992, for having borrowed a sum ofRs.5,000/- from him and that the said promissory note did notrelate to the interest payable by the defendant.9. The trial Court had further held that the defendant hadnot let in sufficient evidence to prove that the signature on thepromissory note marked as Exhibit A-1 was not his. Though it wasopen to the defendant to have let in expert evidence, through ahand writing expert, to prove that the signature on thepromissory note was not his, he has failed to do so. It was alsoheld by the trial Court that the fact that Senthamarai Selvi hadreceived the loan amount of Rs.7,000/- along with interestthereon and had made over the promissory note executed by thedefendant to the plaintiff has been sufficiently proved by theoral evidence let in on behalf of the plaintiff. On suchfindings, the trial Court had decreed the suit as prayed for byits judgment and decree, dated 03.04.1998. 10. Being aggrieved by the said judgment and decree of thetrial Court, dated 03.04.1998, the defendant had filed an appealbefore the Sub-Court, Kallkurichi, in A.S.No.45 of 1999.11. Based on the judgment of the trial Court, the avermentsmade on behalf of the plaintiff, as well as the defendant andtaking into consideration both the oral and documentary evidencelet in on behalf of the parties concerned, the Subordinate Judge,Kallakurichi had framed the following points for consideration: https://hcservices.ecourts.gov.in/hcservices/ i) Whether Exhibit A-1 has been falsely and fraudulentlyfabricated by the plaintiff/Respondent?ii) Whether there has been due consideration for theexecution of the promissory note?iii) Whether Exhibit A-2 has been proved by theplaintiff/Respondent in accordance with law?iv) Whether the judgment and decree of the lower AppellateCourt is sustainable in law?v) What other reliefs the defendant/appellant is entitled tobefore this Court?12. While answering the issues framed for consideration thelower Appellate Court had come to the conclusion that the trialCourt had failed to examine whether the signature on thepromissory note, marked as Exhibit A-1, was that of thedefendant. However, by comparing the signature of the defendanton the various documents that were available before the lowerAppellate Court, it had come to the conclusion that the signatureon Exhibit A-1 promissory note, was that of the defendant.13. After analysing the evidence available on record, thelower Appellate Court had come to the conclusion that Exhibit A-1, dated 09.08.1993, had been validly executed by the defendantfor due consideration. In view of the said findings, the lowerAppellate Court had come to the conclusion that Exhibit A-2 isvalid in the eye of law, as it has been sufficiently proved bythe plaintiff to the satisfaction of the Court. In suchcircumstances, the lower Appellate Court had confirmed thejudgment and decree of the trial Court, granting the reliefs tothe plaintiff, as prayed for in the suit in O.S.No.1135 of 1995.14. The defendant in the suit in O.S.No.1135 of 1995 and theappellant in the first appeal in A.S.No.45 of 1999, has filed thepresent second appeal stating, inter alia, that the Courts belowhave erred in holding that the plaintiff in the suit and therespondent in the present second appeal is entitled to the saidclaim on the basis of Exhibit A-1, in the absence of sufficientproof of due execution of the promissory note. Even though thelower Appellate Court had specifically found, on comparison, thatthe signatures of the defendant in Exhibit A-1 and Exhibit B-2were differing, it had wrongly decided in favour of the plaintiffby decreeing the suit.15. The Courts below have not sufficiently considered theevidence of D.W.2 stating that he is not the scribe of the suitpromissory note. Further, the Courts below have not taken intoaccount the strained relationship between the parties involved inthe suit, before coming to their conclusion. It was also statedthat the Courts below have not considered the fact that the https://hcservices.ecourts.gov.in/hcservices/ payment of due consideration for the execution of the promissorynote has not been sufficiently proved. Further, there was noevidence shown by the plaintiff that he is the assignee of thesuit promissory note, marked as Exhibit A1, for validconsideration. 16. The Second appeal had been admitted by this Court on thefollowing substantial questions of law:1. Whether the Courts below is right in granting adecree on the basis of Exhibit A-1 after having foundthat the signature found in Exhibit A-1 differs fromthe signature in the admitted document Ex.A-2 and alsothe signature found in the deposition of the appellant?2. Whether the Courts below is right in granting adecree on the basis of Exhibit A-1 in the absence ofany evidence relating due execution of Promissory Noteas alleged especially when the burden is upon therespondent?3. Whether the Courts below is right in holdingthat the respondent as assignee in the absence of anyevidence that the assignment is for validconsideration?17. On analysing the rival contentions of the partiesconcerned and on examining the judgment and decree of the courtsbelow and the evidence on record, this Court is of the consideredview that the appellant has not shown sufficient and validgrounds for this Court to interfere with the conclusions arrivedat by the Courts below. Even though the lower Appellate Court hadfound that the signature found on Exhibit A-1 differs from thesignature found on Exhibit B-2, it had come to the conclusionthat the signature found on the suit promissory note marked asExhibit A-1 is that of the defendant, who is the appellant in thepresent second appeal. The Courts below had also rightly come tothe conclusion that the plaintiff, who is the respondent in thepresent second appeal, is the holder in due course of the suitpromissory note, marked as Exhibit A-1, for valid consideration.In such circumstances, this Court does not interfere in thefindings of the Courts below based on mere appreciation ofevidence as held in GURDEV KAUR AND OTHERS Vs. KAKI AND OTHERS(2007 (1) CTC 334), unless it involves substantial questions oflaw.18. In the present case, it is clearly found that no suchsubstantial questions of law are involved, as seen from the facts https://hcservices.ecourts.gov.in/hcservices/ and circumstances of the case. In such circumstances, this Courtis of the considered view that there is no reason or cause tointerfere with the judgment and decree passed by the Courtsbelow. Accordingly, the second appeal stands dismissed. No costs.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.cshTo1) The Subordinate Judge, Kallakurichi.2) The Principal District Munsif, Kallakurichi.3. The Section OfficerVR Section,High Court, madras1 cc to M/s. Sarvabhuman, Associates, Sr. 43202S.A.No.804 of 2003VRK (CO)kk 28/8