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IN THE HIGH COURT OF JUDICATURE AT MADRAS
C.V. KARTHIKEYAN, J.
M. Mallika – Appellant
Versus
Kasi Pillai – Respondent
S.A. No. 740 of 2015
Decided On : 21-06-2019
Civil Procedure Code,1908 – Section 100 - Indian Evidence Act ,1872 – Section 72,73 and 120 - Negotiable Instrument Act – Section 87 - plaintiff in O.S. No. 206 on file of District Munsif Court, is appellant herein - O.S. No. 206 had been filed by plaintiff Mallika against defendant seeking a decree against defendant for a sum together with interest at rate of 24% p.a. on from date of suit till date of decree and at rate of 6% p.a., thereafter till date of realisation and for costs of suit - Suit came up for consideration before District Munsif Court, and by Judgment suit was decreed - Plaintiff had filed O.S. No. 206 before District Munsif Court, on strength of a promissory note Ex.A-1, dated which, according to plaintiff, had been executed by defendant for a sum undertaking to repay same on demand together with interest on 24% p.a. According to plaintiff, she had issued a notice which had been marked as Ex.A-2 but which had been returned un-served, vide Ex.A-3 -Plaintiff sought a decree on strength of promissory note - Defendant denied execution of promissory note in his written statement - It was also stated that promissory note is a fraudulent document created by plaintiff – Held, Material alteration is visible to naked eye and very fact that amount which is basis for claim had been written in two different inks, raises a strong suspicion regarding circumstances surrounding execution of promissory note - It also gives rise to a doubt whether digit 3 had been subsequently appended after defendant had signed promissory note - This would render document void as against plaintiff/appellant herein – Court therefore answer first substantial question of law that First Appellate Court had correctly appreciated Section 73 of Indian Evidence Act 1872 - In view of this categoric finding, second substantial question of law pails into insignificance - For the reasons stated, court find no ground to interfere with Judgment delivered by First Appellate Court and accordingly, Second Appeal is dismissed.
Based on the provided legal document, here are the key points:
(Prayer: This Second Appeal is filed under Section 100 of Civil Procedure Code, against the Decree and Judgment of A.S. No. 78 of 2014 dated 27.08.2014 on the file of Subordinate Judge’s Court, Arakkonam reversing the Decree and Judgment of O.S. No. 206 of 2010 dated 27.06.2011 on the file of the District Munsif Court, Sholingar.)
1. The plaintiff in O.S. No. 206 of 2010 on the file of the District Munsif Court, Sholinghur, is the appellant herein.
2. O.S. No. 206 of 2010 had been filed by the plaintiff Mallika against the defendant Kasi Pillai seeking a decree against the defendant for a sum of Rs. 60,200/- together with interest at the rate of 24% p.a. on Rs. 35,000/- from the date of the suit till date of decree and at the rate of 6% p.a., thereafter till the date of realisation and for costs of the suit.
3. This suit came up for consideration before the District Munsif Court, Sholinghur and by Judgment dated 27.06.2011, the suit was decreed.
4. Thereafter the defendant Kasi Pillai filed A.S. No. 22 of 2012 before the Sub Court, Ranipet, which was subsequently transferred to Sub Court, Arakkonam and renumbered as A.S. No. 78 of 2014. By Judgment dated 27.08.2014, the Appeal Suit was allowed and O.S. No. 206 of 2010 was dismissed.
5. Challenging that Judgment and Decree, the plaintiff had filed the present Second Appeal. The Second Appeal had been admitted on the following two substantial questions of law:-
1. Whether the First Appellate Court correctly appreciated Sections 72 and 73 of Indian Evidence Act 1872?
2. Whether the First Appellate Court has considered Section 120 of Indian Evidence Act, 1872?
6. Heard arguments advanced by Mr. M. Chidambaram, learned counsel for the appellant and by Mr. S. Sarath Chandran for M/s. K.M. Vijayan Associates.
7. For the sake of convenience, the parties will be referred as plaintiff and defendant. The plaintiff is the appellant herein and the defendant is the respondent herein.
8. The plaintiff had filed O.S. No. 206 of 2010 before the District Munsif Court, Sholinghur, on the strength of a promissory note Ex.A-1, dated 22.11.2007, which, according to the plaintiff, had been executed by the defendant for a sum of Rs. 35,000/- undertaking to repay the same on demand together with interest on 24% p.a. According to the plaintiff, she had issued a notice on 21.06.2010 which had been marked as Ex.A-2 but which had been returned un-served, vide Ex.A-3. The plaintiff sought a decree on the strength of the promissory note.
9. The defendant denied execution of the promissory note in his written statement. It was also stated that the promissory note is a fraudulent document created by the plaintiff.
10. The promissory note had been marked as Ex.A-1 during trial. By Judgment dated 27.06.2011, the learned District Munsif, Sholinghur, decreed the suit, however, reducing the rate of interest from 24% to 9% p.a. The learned District Munsif, in the course of the Judgment compared the signature of the defendant as found in Ex.A-1/promissory note with his signatures as found in the vakalat and suit summons under Section 73 of the Evidence Act 1872 and held that the signatures are the same and therefore, held that the promissory note had been validity executed and consequently decreed the suit.
11. The defendant, as stated above then filed A.S. No. 22 of 2012 before Sub Court, Ranipet, which was then transferred to Sub Court, Arakkonam and renumbered as A.S. No. 78 of 2014. The learned Sub Judge allowed the appeal and dismissed the suit holding that though the promissory note had been executed in favour of the plaintiff Mallika, she did not come forward to give evidence, but on the other hand, her husband, P.S. Mani had tendered evidence as PW-1. The learned Sub Judge also found as a fact that there were material alteration in the promissory note, rendering it void.
12. The plaintiff then filed the present Second Appeal which as aforesaid, had been admitted on the following two substantial questions of law:
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