Muruganantham v. Arivazhagan

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 06.07.2009CORAMTHE HONOURABLE MR.JUSTICE M.VENUGOPALAPPEAL SUIT NO.755 OF 2001Muruganantham..Appellant/Defendant Vs.Arivazhagan..Respondent/PlaintiffAppeal filed under Order 41 Rule 1 of Civil Procedure Code readwith Section 96 of C.P.C., against the judgment and decree dated15.11.2000 in O.S.No.24 of 1999 on the file of the AdditionalDistrict Judge, Karaikal.For Appellant: Ms.M.Rebecca For Mr.K.BalakrishnanFor Respondent: No appearance J U D G M E N TThe appellant/defendant has projected this appeal as against thejudgment and decree made in O.S.No.24 of 1999 on the file of learnedAdditional District Judge, Karaikal.2.The short facts of the plaint are as follows:The appellant/defendant has borrowed a sum of Rs.30,000/-on 18.5.1997 from the respondent/plaintiff agreeing to repay the samewith interest at 12% per annum and has executed a pronote. Inspite ofrepeated demand made by the respondent/plaintiff, theappellant/defendant has not made any payment. Consequently, therespondent/plaintiff has issued an Advocate Notice dated 22.2.1999,23.2.1999 claiming the amount. The appellant/defendant has sent areply on 15.4.1999 with incorrect allegations. Hence, the suit islaid for recovery of the suit amount of Rs.37,500/- with interest at12% per annum from the date of filing of the plaint till date ofpayment and with costs.3.The appellant/defendant has filed a written statement takingthe pleas among other things that as a Government servant he hasrecommended for certain loans to other and he has never been a partyto the following transactions and except for one instance of taking a https://hcservices.ecourts.gov.in/hcservices/ hand loan of Rs.7,000/- in the year 1997 or 1998 from one Rajamuthuof Kottucherry to meet out pressing legal expenses in connection withan expensive litigation, he signed a blank pronote and handed overthe same to the Contractor-Rajamuthu, who is personally known to himfor long time and on 22.2.1999 a demand notice has been issued to himclaiming that he has borrowed monies from the respondent/plaintiffand demanding repayment and he approached the said Rajamuthu forreturn of the blank pronote since by the time the loan taken by theappellant from him has been discharged and since the debt has beendischarged, Rajamuthu has been informed him that the pronote musthave been destroyed, which he has taken to be true and by means ofAdvocates reply dated 15.4.1999 the appellant/ defendant has deniedthe borrowing and the execution of pronote from therespondent/plaintiff and further that he has mentioned about thesigning of a blank pronote in favour of his friend Rajamuthu and thatthe calculation of the interest is wrong and has prayed for dismissalof the suit with costs. 4.The trial Court, on the side of respondent/plaintiff witnessesP.W.1 and P.W.2 have been examined and Exs.A.1 to A.7 have beenmarked. On the side of appellant/defendant, D.W.1 and D.W.2 have beenexamined and no documents have been marked.5.The trial Court altogether has framed 1 to 4 issues and on anappreciation of oral and documentary evidence on record, it has cometo the conclusion that the appellant/ defendant has received a sum ofRs.30,000/- on 18.5.1997 and has executed the suit pronote andresultantly, decreed the suit in favour of the respondent/plaintiff. 6.The points that arise for determination are:1.Whether the appellant/defendant has executed the suitpronote Ex.A.1 dated 18.5.1997 in favour of the respondent/plaintiffafter receiving the consideration of Rs.30,000/-?2.Whether the respondent/plaintiff is entitled to the suitamount as claimed for?7.Contentions, Discussions and Findings:According to the learned counsel for the appellant /defendant, the appellant/defendant has not executed any pronote infavour of the respondent/plaintiff and that the appellant neverborrowed the alleged sum of Rs.30,000/- from the respondent/plaintiffand further that the trial Court should have taken note of the factthat even witness P.W.2 is not able to establish the genuiness ofEx.A.1 suit pronote and moreover, the trial Court has committed anerror in appreciating the fact that the appellant/defendant does notknow the respondent/plaintiff and it is not possible for theappellant to borrow money from the respondent and added further, the https://hcservices.ecourts.gov.in/hcservices/ respondent/plaintiff has no capacity to advance the amount andfurther there is no entry in respondent/ plaintiff's Income Taxaccount for amounting the money to the appellant and also that thetrial Court should not have believed the testimony of P.W.2 who saysthat he has accompanied the appellant/defendant at the time of theborrowing of the money and therefore, prays for allowing the appealin the interest of justice.8.This Court has heard the arguments of the learned counselappearing for the appellant and noticed the same.9.It is the evidence of P.W.1 (respondent/plaintiff) that theappellant/defendant has borrowed a sum of Rs.30,000/- from him on18.5.1997 and agreed to pay interest at 12% per annum and hasexecuted a suit pronote Ex.A.1 and one Aruldass has signed as awitness in Ex.A.1 and since the amount has not been mentioned inEx.A.2 lawyer's notice dated 22.2.1999. He has issued another noticeEx.A.4 dated 23.2.1999 and Ex.A.6 is the letter of the appellant.10.P.W.1 during his cross examination has specifically statedthat Ex.A.1 suit pronote has been brought by the appellant/defendanthimself fully filled and stamped and in his presence theappellant/defendant has signed on his stamp the painter by nameAruldass has singed as a witness in the pronote and he requested thesaid painter to sign as a witness for giving the money to theappellant and moreover, the appellant has promised the repayment ofthe amount within two months from the execution of the Ex.A.1 and hehas seen the appellant and the Rajamuthu (Contractor) each other nearthe P.W.Office and added further, the appellant/ defendant has issueda letter-Ex.A.7 through a person to his shop and in the said letterhe has asked for time for making payment.11.P.W.2 in his evidence has deposed that he has signed as awitness in a suit pronote and that the appellant/ defendant borrowedthree bundles of Rs.100/- from the respondent/plaintiff and afterreceiving the money, the appellant has signed in the pronote and thathe has signed on the stamp and beneath the stamp in the pronote andhe has signed as a witness and after the appellant/defendant hassigned in the pronote.12.It is pertinent to refer to the evidence of D.W.1(appellant/defendant) to the effect that he has never borrowed themoney from the respondent/plaintiff and that he has taken loans fromhis friend Rajamuthu two or three times and that the said Rajamuthuis a Government Contractor and that he has borrowed to the limit ofRs.5000/- from the said Rajamuthu and that he used to give Rajamuthuthe pronotes in blank only with signature and that as on date he owesno money to the said Rajamuthu and generally he does not ask forreturn of the pronote since the siad Rajamuthu is his friend and in1997 he has borrowed from Rajamuthu a sum of Rs.7,000/- in connection https://hcservices.ecourts.gov.in/hcservices/ with a Court case and that he has repaid the loan and this borrowalhas also been on a blank pronote signed by him, which has been repaidbut he has not asked for the return of the pronote. 13.It is the further evidence of D.W.1 that he denies thesignature of Muruganandam in the letter dated 13.7.1998 shown to himby the learned counsel for the respondent/ plaintiff.14.D.W.2 in his evidence has categorically stated that he usedto borrow money from the respondent/plaintiff's brothers andthereafter, he used to borrow money from the respondent/plaintiff andthat he has borrowed money for four or five years from therespondent/plaintiff in connection with his business and the maximumamount he has borrowed is Rs.20,000/- and that he has repaid thedebts and further that a year ago the appellant has told him that herequires some money and urgently he has managed some amount and hasgiven him Rs.7,000/- which has been repaid by the appellant and thatthe appellant has given him a blank promissory note signed on astamp. Continuing further, D.W.2 has deposed that theappellant/defendant has not issued Ex.A.1 pronote to therespondent/plaintiff and to secure the loan of Rs.10,000/- he hasgiven the respondent/plaintiff a blank cheque of UCO Bank and theblank EX.A.1 pronote and he has discharged the debt.15.In Ex.A.1-pronote the signature of the appellant/ defendantis seen over the revenue stamp affixed thereto. Significantly inEx.A.1 pronote at the end of the document the appellant signature isalso seen. In Ex.A.1 pronote the witness Aruldass has signed. Therecitals in Ex.A.1 are seen in Tamil vernacular. In the Ex.A.1printed pronote seven lines have been initially left blank and laterin the said blank portion the Tamil recitals are written/filled up. Areading of Ex.A.1 pronote dated 18.5.1997 shows that theappellant/defendant has executed the said document to in favour ofthe respondent/plaintiff after the passing off consideration ofRs.30,000/- taken as loan for urgent family expenses and the rate ofinterest agreed is at 12% per annum.16.Generally speaking, the presumption in law is that a pronoteis supported by due consideration mentioned in pronote. However, thispresumption is a rebuttable one. It is for the appellant/defendant toestablish to the subjective satisfaction of this Court that he hasnot received any consideration under Ex.A.1 pronote and further hasnot executed the said document. Moreover, the circumstances relied onby the appellant in regard to the stand taken by the appellant in thewritten statement must be proved by him in the manner known to law.At this stage, Ex.A.7 letter dated 13.7.1998 assumes significance.This document is said to have been given to the respondent/ plaintiff(P.W.1) by the appellant/defendant through a person to therespondent/plaintiff when the latter has been in his shop. Therecitals in Tamil in Ex.A.7 letter (addressed to the https://hcservices.ecourts.gov.in/hcservices/ respondent/plaintiff by the appellant/ defendant) speaks of the factthat the appellant is in trying circumstances and he is making hisendeavour night and day to repay the loan obtained by him from therespondent/plaintiff and therefore, has prayed for time to makerepayment of the amount. Though the appellant/defendant as D.W.1 hasdenied his signature in Ex.A.7. Indeed, under Section 73 of theEvidence Act a Court of law is entitled to compare the disputedsignature of an individual seen in documents. The comparison ofdisputed signature with its own eyes can be done by a Court with thatof a proved/admitted signature of a person. However, a Court of lawneed not get an expert opinion in each and every case though it oughtto be slow in venturing on an opinion on the basis of comparison. Ona comparison of signatures of Muruganandam has seen in Ex.A.1 pronotei.e. over the revenue stamp and at the end of the pronote with thatof signature of said Muruganandam found in Ex.A.7 letter dated13.7.1998 leads this Court unhesitatingly to come to the inevitableconclusion that the signature of Muruganandam seen in Ex.A.7 letteris only that of the appellant/defendant, in the considered opinion ofthis Court. In short, Ex.A.7 recitals unerringly point out that theappellant/defendant has sought for few days for extension of time tomake payment to the respondent/plaintiff. 17.In the present case on hand, the witness of Ex.A.1 pronotehas been examined as P.W.2 and he has clearly stated that theappellant/defendant at the time of receipt of money of 3 bundles ofRs.100/- from the respondent/plaintiff has signed over the revenuestamp in the pronote and also at the end of the pronote. The evidenceof P.W.2 is a cogent, convincing one, worthy of credence and the sameis accepted by this Court. Furthermore, P.W.1 (respondent/plaintiff)in his evidence has also spoken about the factum of lending theamount stated in suit pronote to the appellant/defendant. As a matterof fact, the evidence of P.W.1 and P.W.2 are quite natural and areliable one. In the instant case on hand, the respondent/plaintiffhas established his burden of proving that the pronote has beenexecuted by the appellant/ defendant. However, theappellant/defendant has not adduced satisfactory and acceptableevidence that the pronote has not been supported by consideration.18.Suffice it for this Court to point out that on an overallassessment of the facts and circumstances of the case and onappreciation of entire oral and documentary evidence on recordespecially taking into account of the fact that Ex.A.7 letter dated13.2.1998 is not in favour of the appellant/defendant and per contra,the same is in favour of the respondent/plaintiff and apart fromthis, the signature of P.Muruganandam found in Ex.A.7 document isclearly that of the appellant/defendant in the considered opinion ofthis Court based on the comparison of the said signature with that ofthe signature found in Ex.A.1 over the revenue stamp and resultantly,this Court comes to the inevitable conclusion that Ex.A.1 suitpronote is supported by due consideration and the same has been https://hcservices.ecourts.gov.in/hcservices/ executed by the appellant/defendant to and in favour of therespondent/ plaintiff and the same is a true and valid one andconsequently, the appeal is devoid of merits and the same isdismissed in furtherance of substantial cause of justice.19.In fine, the Appeal is dismissed. The judgment and decree ofthe trial Court dated 15.11.2000 are affirmed by this Court.Consequently, there shall be no order as to costs.sd/-Asst.Registrar/true copy/Sub Asst.Registrarsgl To1. The Additional District Judge, Karaikal.2. The Section Officer, V.R. Section, High Court, Madras.+ 1 c.c. to Mr. K. Balakrishnan, Advocate. S.R.No.29369.A.S.No.755 of 2001KA (CO)GSK 04.08.2009.