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2014 Supreme(Mad) 3950
Before the Madurai Bench of Madras High Court
P. DEVADASS, J.
Durairaj
Versus
Lakshmi Rajan
Second Appeal (MD) No. 578 of 2014 & M.P.(MD) No. 1 of 2014
Decided on : 05-11-2014
For the Appellant:S. Balasubramanian, Advocate.
For the Respondent:S. Meenakshisundaram, Advocate.
The main legal point established in the judgment is the importance of framing proper issues in a civil case and the burden of proof under Section 118 of the Negotiable Instruments Act.
Headnote:
Negotiable Instruments Act - Recovery of Loan - Section 20, Section 118 - The court discussed the legal provisions of Section 20 and Section 118 of the Negotiable Instruments Act. It highlighted the presumption under Section 118 and the burden of proof on the parties. The court emphasized the importance of framing proper issues in a civil case and the consequences of wrong framing of issues.
Fact of the Case:
The plaintiff alleged that the defendant borrowed Rs.3,00,000 and issued a cheque, which was dishonored. The defendant claimed the amount was for a failed property sale and filed a counterclaim.
Finding of the Court:
The Trial Court and First Appellate Court found in favor of the plaintiff, relying on the presumption under Section 118 of the Negotiable Instruments Act. The defendant's appeal was dismissed, and the second appeal was also dismissed by the court.
Issues: The issues included the entitlement of the plaintiff to recover the amount, consideration for the cheque, and the relief the plaintiff was entitled to.
Ratio Decidendi: The court emphasized the importance of framing proper issues in a civil case and discussed the burden of proof under Section 118 of the Negotiable Instruments Act. It found that the legal presumption under Section 118 had not been rebutted by the defendant.
Final Decision: The second appeal was dismissed, and the Decree and Judgments of the Courts below were confirmed. The parties were left to bear their respective costs.
With the consent of both sides, this second appeal is taken up for final disposal at the admission stage itself.
2. The unsuccessful defendant in O.S.No.56 of 2009, before the Trial Court/Sub Court, Sankarankovil and before the First Appellate Court/Principal District Court, Tirunelveli, is the appellant herein.
3. The suit in O.S.No.56 of 2009 has been instituted by the plaintiff on the allegation that on 18.01.2007, the defendant borrowed Rs.3,00,000/-from him and promised to repay it within a month, in support of it he has issued Ex.A1 cheque, dated 18.01.2007, drawn on Central Bank of India, Sivagiri Branch, which was issued in the presence of P.Ws.2 and 3 Palanisamy and Kalidoss. However, when the cheque was presented to the bank, it was dishonoured and the plaintiff was informed by the bank under Exs.A2 and A3. Thereafter, in spite of demand, since the amount was not paid, the suit was instituted.
4. The suit has been resisted by the defendant by filing a written statement, containing several allegations. The material aspect of which is that the defendant had intended to purchase the property of plaintiff and Gurusamy on 13.01.2007, sale agreement was entered into between them and defendant paid them Rs.1,01,000/-as advance. Subsequently, it was substituted by Ex.B4, sale agreement, dated 28.03.2007, wherein the earlier sale agreement, dated 13.01.2007, has also been referred to and a further sum of Rs.3,00,000/-was paid by the defendant to the said person, the balance Rs.8,24,000/- is to be paid by the defendant by 14.07.2007. However, the sale collapsed. They have sold the property to some other person. However, they did not return the advance amount of Rs.4,01,000/-to the defendant. Thus, defendant complained to an higher police official in Tirunelveli and they have promised to return the amount by December 2008. However, they did not do so. On 18.01.2007, defendant did not receive any amount further. The cheque has been issued only in connection with the sale agreement, dated 13.01.2007 and 28.03.2007. Their Advocate's notice (Ex.B2), their petition (Ex.B3) to defendant's school management will also expose them. Actually, as per the sale agreement they have to pay the defendant Rs.1,50,000/-.
5. The Trial Court framed the following three issues::
i. Whether the plaintiff is entitled to recover the amount with interest?
ii. Whether the defendant did not receive any consideration from the plaintiff? and
iii. To what relief, the plaintiff is entitled to?
6. When the Trial Court tried the suit, the plaintiff examined himself as P.W.1 and Planisamy and Kalidoss as P.Ws.2 and 3 and exhibited Exs.A1 to A3, while, the defendant Durairaj examined himself as D.W.1, plaintiff's man Gurusamy as D.W.2, Advocate Yogaraj as D.W.3, a retired teacher as D.W.4, one Veluchamy as D.W.5 and exhibited Exs.B1 to B4.
7. Considering the arguments of both side and the evidence on record, the Trial Court referred to Section 20 of Negotiable Instruments Act and repelled the defendant's contention of issuance of blank cheque and considering the evidence of P.Ws.1 to 3 raised the presumption under Section 118 of Negotiable Instruments Act and also concluded that it has not been rebutted by the defendant and thus decreed the suit.
8. In such circumstances, the defendant directed the appeal in A.S.No.4 of 2012 before the First Appellate Court/Principal District Court, Tirunelveli, wherein he also filed an application in I.A.No.92 of 2013, under Order XLI Rule 27 of the Code of Civil Procedure to produce the explanation given by him to the school authorities with reference to a petition preferred against him by the plaintiff and D.W.2 ad additional document (Ex.X1).
9. The First Appellate Court reappraised the evidence and ultimately it subscribed to the view of the Trial Court and dismissed the appeal.
10. In the circumstances, the defendant directed this second appeal.
11. The learned counsel for the appellant/defendant contende
