The main legal point established in the judgment is the interpretation and application of Section 43 of the Indian Contract Act, which allows a suit to be maintained against one of the joint promissors without impleading the other.

JUDGMENT :

(Prayer: Second Appeal filed under Section 100 of C.P.C., against the judgment and Decree dated 17.04.2007 passed in A.S.No.132 of 2006 on the file of the Additional Subordinate Court, Salem, dismissing the appeal reversing the judgment and decree dated 10.04.2006 passed in O.S.No.1590 of 2004 on the file of the I Additional District Munsif Court, Salem.)

1. Challenge in this Second Appeal is made to the judgment and decree dated 17.04.2007 passed in A.S.No.132 of 2006 on the file of the Additional Subordinate Court, Salem, reversing the judgment and decree dated 10.04.2006 passed in O.S.No.1590 of 2004 on the file of the I Additional District Munsif Court, Salem.

2. For the sake of convenience, the parties are referred to as per the rankings in the trial court.

3. The plaintiff in O.S.No.1590 of 2004 is the appellant.

4. Suit for recovery of money.

5. Briefly stated according to the plaintiff’s case, the defendant and one Vijayakumar borrowed a sum of Rs.50,000/- on 10.06.2001 from the plaintiff towards their business and family expenses and in evidence thereof, executed a promissory note on the same date, agreeing to repay the borrowed sum with interest at 24% per annum. Subsequent thereto, Vijayakumar paid a sum of Rs.1,000/- on 09.07.2001 and a further sum of Rs.1,000/- on 08.08.2001 and thereafter, no payment has been made to the plaintiff towards the borrowed sum either by the defendant or by Vijayakumar. Hence, according to the plaintiff, he issued a legal notice on 24.05.2004 to both the defendant and Vijayakumar calling upon them to repay the borrowed sum as promised. Though the legal notice has been received by the defendant and Vijayakumar, no response had been received from them qua the legal notice and they have also failed to comply with the demand made by the plaintiff in the legal notice. The liability of the defendant and Vijayakumar under the promissory note is joint and several and accordingly the plaintiff has levied the suit only against the defendant and hence prayed that the suit may be disposed of in favour of the plaintiff.

6. The defendant resisted the plaintiff’s case contending that he is no way connected with the plaintiff and the plaintiff is a stranger to the defendant and the defendant never borrowed any amount from the plaintiff along with Vijayakumar as alleged in the plaint and executed a promissory note in favour of the plaintiff towards the borrowed sum along with Vijayakumar as averred in the plaint. Though the defendant had received the legal notice sent by the plaintiff dated 24.05.2004, inasmuch as, the defendant has no nexus with the plaintiff in any manner with reference to any monetary transaction, the defendant did not respond to the legal notice. Further according to the defendant, the suit has been laid by the plaintiff at the behest of Murugesan @ Murugan. The defendant had been harassed by the said Murugesan @ Murugan along with Vijayakumar and in that connection, the defendant sent a legal notice to them and at the instance of Vijayakumar, the defendant had been called to the Police Station and according to the defendant, in respect of the chit transaction conducted by Murugesan @ Murugan, Vijayakumar was a subscriber in the said chit and Vijayakumar bid in the chit and shared the bid amount with the defendant and for that purpose, obtained the signatures of the defendant in blank promissory note and therefore according to the defendant, Vijayakumar had handed over the blank promissory note to Murugesan @ Murugan and at the instance of Murugesan @ Murugan, the suit has been falsely foisted against the defendant in the name of the plaintiff. Further on the police complaint given by Vijayakumar, Karumalikoodal Police has called both the defendant and Vijayakumar and it had been agreed that Vijayakumar should return the blank promissory note and the stamp papers to the defendant and the defendant should discharge the amount due to Vijayakumar within a particular point of time.