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2019 Supreme(Mad) 1465
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
R. PONGIAPPAN, J.
M. Ponnuthaiammal - Appellant
Versus
V. Alagarsamy Naicker - Respondent
S.A.(MD) No. 508 of 2009
Decided On : 14-02-2019
Advocate Appeared:
For the Appellant :N. Dilip Kumar, Advocate
For the Respondents:S. Parthasarathy, Advocate
Headnote:
Negotiable Instrument Act,1881 - Section 20 - Suit for Promissory Note - Defendant borrowed a sum of from Plaintiff for her Family expenses and for her Business purposes and executed a Promissory Note in favour of Plaintiff on same day - Defendant also agreed to pay said amount with Interest at rate of p.a - In spite of repeated demands Defendant did not turn up to repay Suit amount - Plaintiff sent a Notice through his Advocate calling upon Defendant to repay Suit amount with Interest - Defendant acknowledged said Notice - But she did not pay amount so far - Averments made in Written Statement filed by Defendant in brief are as follows Defendant did not borrow any amount from Plaintiff and she did not execute any Promissory Note in favour of Plaintiff - Averments made in Plaint by Plaintiff that Defendant borrowed a sum of as a debt is false - Only Defendant borrowed a sum of from wife of Plaintiff - After receiving said amount she executed a Promissory Note in favour of wife of Plaintiff - In month of January by using force Plaintiff and his wife obtained her signature in some papers and by using same Suit Pro-Note was fabricated by Plaintiff - In fact only in order to extract more money from Defendant Suit has been filed - Plaintiff did not give any reply to Notice issued by Defendant to wife of Defendant - Apart from this Suit sons of Plaintiff had filed Suit against Defendant in and - Hence Suit filed by Plaintiff is liable to be dismissed - Whether has been treated as Promissory Note satisfying ingredients of Section 4 of Negotiable Instruments Act? - Whether is admissible in evidence when there are specified admissions about its contents by Plaintiff in his evidence? - Whether not admission of Plaintiff that is an inchoate instrument disprove his case about execution of Pro-Note by Defendant? - Held, According to Section 20 of Negotiable Instrument Act one of primary conditions of law is that person signing should deliver instrument to another - Further person so signed is having intention that Bill should be filled up by anybody - Usually an incomplete instrument is delivered for some other purpose for example, safe custody to utilise Section to his/her advantage thereby delivery by a person to another is a primary condition under Section 20 of Negotiable Instruments Act - There is no evidence on side of Plaintiff that Defendant handed over with an intention to convert same as Pro-Note - Under such circumstances it cannot be that Defendant has given authorization to Plaintiff to fill - Hence Court am of considered opinion that manner of writing and lack of evidence with regard to handing over signed paper to Plaintiff has created a doubt - whether transaction alleged by Plaintiff is in accordance with evidence given by - But Principal District Judge without observing those facts came to conclusion in favour of Plaintiff which requires interference - Said evidence was recorded by Subordinate Judge Aruppukottai - In said evidence she stated about transaction happened with one Ponnuthaiammal who is Appellant in this Appeal - But said document was not marked through author of document - Since Appellant and Respondent herein are not author of document and further said document is a previous statement of one Ponnuthai who is wife of Respondent it can be used only for corroborating or for contradicting evidence given by same person before Trial Court - So marking of copy of deposition of Third party itself is not in accordance with law of evidence - Second Appeal Allowed
JUDGMENT :
R. Pongiappan, J.
1. This Second Appeal has been filed by the Appellant/Defendant against the Judgment and Decree, dated 16.8.2005 made in A.S. No. 88 of 2004 on the file of the learned Principal District Judge, Virudhunagar District at Srivilliputhur.
2. The Respondent herein filed a Suit in O.S. No. 289 of 2001 on the file of the learned Subordinate Judge, Aruppukottai, seeking a direction to the Defendant to pay a sum of Rs. 1,35,800 to the Plaintiff and to pay Interest for a sum of Rs. 1,00,000 out of Rs. 1,35,800 at the rate of 12% p.a. from the date of filing of the Suit till the date of realization. The learned Subordinate Judge, Aruppukottai, by Judgment and Decree, dated 23.10.2003, dismissed the Suit with costs.
3. Aggrieved over the same, the Respondent herein filed an Appeal in A.S. No. 88 of 2004 before the learned Principal District Judge, Virudhunagar District at Srivilliputhur. By the Judgment and Decree dated 16.8.2005, the learned Principal District Judge, Srivilliputhur, by observing that the Pro-Note which was marked as Ex. A1 proved the fact that the Defendant/Appellant received the Suit amount from the Plaintiff/Respondent, allowed the Appeal with costs.
4. Aggrieved by the same, the Defendant herein has filed the present Second Appeal.
5. For the sake of convenience, the parties are referred to as per the ranking before the Trial Court.
6. The averments made in the Plaint in brief as follows:
The Defendant, on 4.7.1998, borrowed a sum of Rs. 1,00,000 from the Plaintiff, for her Family expenses and for her Business purposes and executed a Promissory Note in favour of the Plaintiff on the same day. The Defendant also agreed to pay the said amount with Interest at the rate of 12% p.a. In spite of repeated demands, the Defendant did not turn up to repay the Suit amount. On 11.6.2001, the Plaintiff sent a Notice through his Advocate calling upon the Defendant to repay the Suit amount with Interest. The Defendant acknowledged the said Notice on 12.6.2001. But, she did not pay the amount so far. Hence, the Suit.
7. The averments made in the Written Statement filed by the Defendant in brief are as follows:
The Defendant did not borrow any amount from the Plaintiff and she did not execute any Promissory Note in favour of the Plaintiff. The averments made in the Plaint by the Plaintiff that on 4.7.1998, the Defendant borrowed a sum of Rs. 1,00,000 as a debt is false. Only on 9.8.1995, the Defendant borrowed a sum of Rs. 75,000 from the wife of the Plaintiff. After receiving the said amount, she executed a Promissory Note in favour of the wife of the Plaintiff. In the month of January 1999, by using force, the Plaintiff and his wife obtained her signature in some papers and by using the same, the Suit Pro-Note was fabricated by the Plaintiff. In fact, only in order to extract more money from the Defendant, the Suit has been filed. The Plaintiff did not give any reply to the Notice issued by the Defendant to the wife of the Defendant. Apart from this Suit, the sons of the Plaintiff had filed the Suit against the Defendant in O.S. No. 288 of 2001 and O.S. No. 290 of 2001. Hence, the Suit filed by the Plaintiff is liable to be dismissed.
8. During the trial, on the side of the Plaintiff, the Plaintiff examined himself as P.W. 1 and one Dinakaran, who is a Witness to the Suit Pro-Note, was examined as P.W. 2 and three documents were marked as Exs. A1 to A3. On the side of the Defendant, the Defendant examined herself as DW1 and three documents were marked as Ex. B1 to B3.
9. The learned Subordinate Judge, Aruppukottai, after considering the materials placed before him, found that the Suit Pro-Note marked as Ex. A1 is not in accordance with the Negotiable Instruments Act and hence, the Plaintiff has not proved his case and dismissed the Suit.
10. In the Appeal filed by the Plaintiff, the learned Principal District Judge, Virudhunagar District at Srivilliputhur, observed that Ex. A1 is having the character and elements of
