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2020 Supreme(Mad) 2
IN THE HIGH COURT OF JUDICATURE AT MADRAS
S.M. SUBRAMANIAM, J.
B.A. Duraiswamy – Appellant
Versus
A.S. Kandaswamy – Respondent
A.S. No. 599 of 2018
Decided on : 05-02-2020
Advocate Appeared:
For the Appellant :S. Kaithamalai Kumaran, Advocate.
For the Respondent:N. Manokaran, Advocate.
The importance of examining the genuinity of the promissory note in a suit for recovery of money, and the inference drawn from the defendant's failure to produce original documents for signature comparison.
Headnote:
Forgery - Recovery of Money - Civil Procedure Code
Fact of the Case:
The plaintiff lent a sum of Rs.10,00,000 to the defendant, who denied borrowing the amount and claimed the promissory note to be forged. The trial court found the promissory note to be valid and genuine, and the plaintiff to have the financial capacity to lend the amount.
Finding of the Court:
The trial court decreed the suit in favor of the plaintiff, directing the defendant to pay the principal amount with interest and costs.
Issues: Validity of promissory note, capacity of plaintiff to lend, relief entitled to the plaintiff
Ratio Decidendi: The court emphasized the importance of examining the genuinity of the promissory note in a suit for recovery of money. It held that the defendant's failure to produce original documents with admitted signature for comparison implied acceptance of the signature, leading to a favorable inference for the plaintiff.
Final Decision: The judgment and decree in favor of the plaintiff was confirmed, and the appeal suit was dismissed.
JUDGMENT :
(Prayer: Appeal filed under Section 96 & Order 41 Rule 1 of the Civil Procedure Code, against the judgment and decree dated 29.06.2018 made in O.S.No.32 of 2011 on the file of II Additional District Court, Erode and prays to set aside the same.)
1. The judgment and decree passed in O.S.No.32 of 2011 dated 29.06.2018 is under challenge in the appeal suit on hand.
2. The facts set out in the plaint in nutshell are that the defendant on 12.03.2008 at Chennimalai, borrowed a sum of Rs.10,00,000/- from the plaintiff for the urgent purpose of his family and business expenses and executed a promissory note in favour of the plaintiff. On the same date, the defendant agreed to repay the said amount with interest at the rate of Rs.1.00 per hundred per month either on the demand of the plaintiff or his order. The defendant owns considerable movable and immovable properties and also doing business profitably. Thus, the defendant is not entitled to claim any debt relief enactment of Tamil Nadu. The plaintiff is entitled to claim interest at the contractual rate i.e., 12% per annum. The plaintiff states that in spite of repeated demands made by the plaintiff to the defendant for payment of the principal and interest, the defendant failed and neglected to pay the same and thereafter, the plaintiff filed an application in I.P.No.2 of 2010 on the file of Sub-Court, Perundurai against the defendant and the purchaser and the said insolvency proceeding is pending for adjudication. Consequently, he filed the suit for recovery.
3. The defendant filed the written statements, denying the averments in the plaint and has stated that allegation of rivalry of Rs.10,00,000/-(Rupees Ten Lakhs only) at Chennimalai on 12.03.2008 and the execution of promissory note agreeing to repay the said amount with interest at the rate of 12% per annum is false and denied. The plaintiff filed I.P.No.2 of 2010 on the file of Sub Court, Perundurai and the same is pending. The suit promissory note dated 12.03.2008 is a forged one an the defendant never borrowed Rs.10,00,000/- from the plaintiff on 12.03.2008 and never executed the suit promissory note. The defendant had no necessity to borrow such a huge amount of Rs.10,00,000/- on 12.03.2008 and the plaintiff has no means to advance the said amount in cash. The plaintiff is a retired teacher and doing yarn and cloth business in the name and style of India Tex and Himalaya Fabrics and the defendant is having a power loom factory at Kavundapady. The defendant was having business dealing with the plaintiff for purchase of yarn. Due to supply of interior quality of yarn, the defendant stopped his business dealings with the plaintiff and since then the plaintiff is not in cardial terms with the defendant. The plaintiff demanded the defendant to sell his Chenimalai properties for Rs.9,00,000/-, but the defendant refused and on 12.05.2008, the defendant sold his properties under two sale deed for Rs.10,72,100/-. By saying all these facts, the defendant claimed that the suit is to be dismissed.
4. The trial Court framed the issues as to Whether the suit promissory note dated 12.03.2008 is valid and genuine; Whether the plaintiff has the capacity to lend the sum of Rs.10 Lakhs on 12.03.2008 is true; To what relief the plaintiff is entitled to?
5. The plaintiff examined himself as PW1 and produced Ex.A1 and A2 and Ex.B1, Ex.B7 to B8 were also marked through him in his cross examination. The plaintiff also examined Tr.Swaminathan as PW2 and K.C.Palanisamy as PW3. PW3 admitted Ex.B2 in his cross examination. The defendant examined himself as DW1 and has produced Ex.B3 to B6 and admitted Ex.A3 to A7 in his cross examination. The defendant did not examine any other witness on his side.
6. With reference to Ex.A1, the trial Court considered two specific pleas raised in his defense by the defendant namely, 1) the promissory note is a forged one and 2) the financial capacity of the plaintiff to lend to said amount of Rs.10 lakhs. The
