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IN THE HIGH COURT OF JUDICATURE AT MADRAS
V.M. VELUMANI, J.
A. Venkatesan - Appellant
Vs.
B. Jareena - Respondent
S.A. No. 796 of 2017 & C.M.P. Nos. 19955 of 2017; 7539 & 7540 of 2018
Decided On : 29-08-2018
Civil Procedure Code,1908 - Order XXXIV Rule 10 - Second Appeal is filed against the judgment and decree made in A.S. No. 305 on the file of II Additional City Civil Court, defendant, who lost before both the Courts below, is appellant herein and he appeared as party-in-person - Respondent filed O.S.No.6230 for recovery of a sum together with interest on the principal sum from the date of plaint till the date of realisation, on failure of appellant paying amounts to create a charge over the plaint schedule property and order sale of the suit property for realisation of decretal amounts and costs - Appellant entered into a separate letter of undertaking with the respondent for engaging her daughter as a Heroine in the movie to be produced by the appellant - Appellant agreed to pay a sum as salary to the respondents daughter to act as a Heroine in the said movie and paid a sum as advance - Appellant did not pay monthly interest for the amounts borrowed regularly as agreed upon and committed default from the beginning - appellant filed written statement and denied all the averments made in the plaint and contended that he did not borrow a sum - From the respondent and did not execute three promissory notes each on the same day and agreed to execute another promissory note later for the balance amount – Held, learned First Appellate Judge framed necessary points for consideration and considering the materials on record, judgment of the Trial Court and arguments, dismissed the First Appeal - Against the said judgment and decree made in A.S. No. 305 , confirming the judgment and decree made in O.S. No. 6230, defendant/appellant has come out with the present Second Appeal - Courts below have failed to consider the material alteration in second promissory note on the year of execution and discrepancy of the averment made in the plaint, evidence, promissory notes and acknowledgment - Trial Court erroneously decreed suit and First Appellate Court dismissed the First Appeal - When the Courts below have failed to properly appreciate the pleadings, evidence on record and erroneous application of materials on record and decreed the suit and dismissed the First Appeal, this Court has power to interfere with the said findings and reverse the same on consideration of the materials in proper perspective - Concurrent findings of the facts can be interfered by this Court in the Second Appeal, when the Courts below erroneously passed the judgments without appreciating the facts in proper perspective-For the above reasons, all the Substantial Questions of law are answered in favour of the appellant - In the result, the Second Appeal is allowed through out setting aside the judgments and decrees of both the Courts - Consequently, connected Miscellaneous Petitions are closed.
Second Appeal is filed against the judgment and decree dated 22.03.2011 made in A.S. No. 305 of 2010 on the file of II Additional City Civil Court, Chennai, confirming the judgment and decree dated 26.03.2008 made in O.S. No. 6230 of 2003 on the file of XVI Assistant City Civil Court, Chennai.
2. The defendant, who lost before both the Courts below, is the appellant herein and he appeared as party-in-person. The respondent filed O.S.No.6230 of 2003 for recovery of a sum of Rs.4,37,500/- together with interest at 12% per annum on the principal sum of Rs.3,50,000/- from the date of plaint till the date of realisation, on failure of appellant paying amounts to create a charge over the plaint schedule property and order sale of the suit property for realisation of decretal amounts and costs.
3. According to the respondent, the appellant introduced himself as a film producer and borrowed a sum of Rs.3,50,000/- from the respondent on 17.05.2001. He executed three promissory notes for Rs.1,00,000/- each and promised to execute another promissory note for Rs.50,000/- later. The appellant created a mortgage by deposit of title deeds on 24.08.2001 with respect to his property described in the schedule to the plaint as security for the repayment of the amounts borrowed. The property is a vacant land with compound wall and gate. The appellant handed over key of the gate and respondent is in constructive possession of the said property.
3(i) The appellant entered into a separate letter of undertaking dated 24.05.2001 with the respondent for engaging her daughter as a Heroine in the movie to be produced by the appellant by name Kadhal Poove . The appellant agreed to pay a sum of Rs.25,000/- as salary to the respondent's daughter to act as a Heroine in the said movie and paid a sum of Rs.5,000/- as advance. The appellant did not pay monthly interest for the amounts borrowed regularly as agreed upon and committed default from the beginning.
3(ii) The appellant attempted to enter into suit property and tried to put up construction in the suit property. The respondent apprehending that appellant is going to create encumbrance, demanded repayment of principal amount and interest. The appellant abused the respondent in filthy language and threatened with dire consequences. The respondent gave a complaint on 12.01.2003 to the Inspector of Police, R-3, Ashok Nagar Police Station. No action was taken by the Inspector of Police and he advised the respondent to approach the Civil Court. At the intervention of local Councilor by name S.M. Durairajan, the appellant agreed to pay a sum of Rs.2,00,000/- as full and final settlement within three months, failing which, entire amount would become due and payable together with interest and executed a letter of undertaking dated 10.02.2003. The appellant failed to pay the amounts and hence, respondent filed the suit for the reliefs as stated above.
4. The appellant filed written statement and denied all the averments made in the plaint and contended that he did not borrow a sum of Rs.3,50,000/- from the respondent on 17.05.2001 and did not execute three promissory notes for Rs.1,00,000/- each on the same day and agreed to execute another promissory note later for the balance amount of Rs.50,000/-. The respondent agreed to invest a sum of Rs.10,00,000/- for the production of the movie Kadhal Poove and respondent's daughter was to act as a Heroine. She gave only a sum of Rs.1,50,000/- and did not pay the balance amount for producing the movie. The appellant incurred a loss of Rs.12,00,000/-. The respondent used to come to office of the appellant with regard to production of movie. During that time, the respondent has stolen the title deeds of the suit property. The suit property is not a vacant land and it is with the building. The respondent did not deposit the title deeds and did not create any mortgage and did not hand over the possession of the suit property. The respondent issued a notice dated 12.06.
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