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IN THE HIGH COURT OF JUDICATURE AT MADRAS
TEEKAA RAMAN, J.
N. Krishnan – Appellant
Versus
V. Jayalakshmi & Others – Respondent
S.A. No. 1821 of 2003
Decided On : 26-03-2021
Code of Civil Procedure, 1908 – Section 100 – Recovery of money – Appellant/plaintiff is the lender and the respondents/defendants are the LRs of the deceased borrower being the wife, son and daugther of the deceased – Plaintiff/appellant filed a suit in O.S.No.732 of 1996, based on pro-note for recovery of money for a sum of Rs.1,25,000/- with 12% interest – Sub-Judge, Coimbatore has rendered a finding that since the execution of Exhibit A1 / suit pro-note is admitted and in the absence of any evidence to propablize the case of the defendant, decreed the suit as prayed for – Defeated defendants filed the appeal and appeal was allowed and hence the Second Appeal – In the absence of a counter claim by the defendants, assuming they have an enforceable counter claim, has not the lower appellate Court committed an error of law in taking into account the claim not brought to the notice of the Court for dismissing the suit laid on a promissory note, holding that as the plaintiff is owning money to the defendants, he is not entitled to a decree on the promissory note – In the absence of any positive evidence to show there was a bid amount and the consideration for the total bid amount, how much amount has been paid on the alleged date and what is the balance of the amount to be paid by her deceased husband, the Lower Appellate Court has went on erroneous footing to dismiss the claim of the plaintiff. –
Finding of the Court:
When the execution of Ex.A1 suit pro-note is admitted the purpose for which the money was given is also elicited from the mouth of the D.W.1 on that score while the trial Court has rightly come to the conclusion that the burden of proof on the shoulder of the plaintiff is duly discharged the lower Appellate Court went on a wrong footing that the defendant is entitled for a counter claim based upon the un proved Exs.B1 and B2. – In the absence of any supporting evidence to show there was a chit fund transaction in which the borrower O.S.Velusamy had taken a bid amount as stated supra no particulars regarding the bid and bid amount; amounts sofar paid; amount to be paid; the lower Appellate Court has committed an error in shifting the burden of the proof on the plaintiff especially one the plaintiff had successfully discharged the burden of the proof on a shoulder then it is for the defendant to rebut the same. – In the absence of any rebuttal evidence, the Lower Appellate Court has committed an error and hence this Court finds that the Substantial Question of Law is answered in affirmative in favour of the appellant/plaintiff against the defendant. – Finding on the lower Appellate Court that the appellant/plaintiff had not issued the notice prior to the filing of the case on the suit pro-note does not found to be inconsonance with the provisions of the Negotiable Instruments Act. – There can be any pre-condition to file a suit on pro-note. – Nonexamination of the two witnesses said to have been present at the time of the borrowal is not fatal to the case of the plaintiff since the execution of the pro-note himself is admitted by the D.W.1. – Even to go by the part of the chief-examination of D.W.1, the deceased husband has executed a blank pro-note and the same has to be treated as inchoate document whereby the borrower has authorized the lender to fill up the pro-note and hence viewing from any angle, the order passed by the lower Appellate Court is unsustainable in law. –
Result : Second Appeal Allowed
JUDGMENT :-
(Prayer: This Second Appeal has been filed under Section 100 of C.P.C., against the judgment and decree in A.S.No.14 of 2003 dated 17.03.2003 on the file of the Court of II Additional District Court at Coimbatore, reversing the judgment and decree made in O.S.No.732 of 1996 dated 28.03.2002 on the file of the I Additional Subordinate Judge, Coimbatore.)
1. The plaintiff is the appellant herein.
2. For the sake of convenience, the parties are referred to as in the same rank as they were arrayed before the trial Court.
3. The appellant/plaintiff is the lender and the respondents/defendants are the LRs of the deceased borrower being the wife, son and daugther of the deceased.
4. The plaintiff/appellant filed a suit in O.S.No.732 of 1996, based on pro-note for recovery of money for a sum of Rs.1,25,000/- with 12% interest.
5. The learned Sub-Judge, Coimbatore has rendered a finding that since the execution of Exhibit A1 / suit pro-note is admitted and in the absence of any evidence to propablize the case of the defendant, decreed the suit as prayed for. The defeated defendants filed the appeal and appeal was allowed and hence the Second Appeal.
6. The above Second Appeal was admitted on 11.12.2003 on the following Substantial Question of Law:
"In the absence of a counter claim by the defendants, assuming they have an enforceable counter claim, has not the lower appellate Court committed an error of law in taking into account the claim not brought to the notice of the Court for dismissing the suit laid on a promissory note, holding that as the plaintiff is owning money to the defendants, he is not entitled to a decree on the promissory note?"
7. Mr.V.Manohar, learned counsel for the appellant/ plaintiff would contend that the execution of the suit pronote Ex.A1 is admitted by the D.W.1 and in the absence of any other evidence to discharge the burden, the first Appellate Court has committed an error in setting aside the well considered judgment of the trial Court. The purpose of the borrowing is established from the own admission of the respondents and the finding of the lower Appellate Court that non issuance of pre-suit notice is fatal to the case of the plaintiff and hence prayed for allowing the second appeal.
8. Heard the learned counsel for the respondents/defendants.
9. In the written statement, the execution of the pro-note is admitted. However, it was projected that both the plaintiff and the deceased husband of the first defendant, Velusamy were working as LIC Agents and in the chit transaction conducted by the plaintiff Krishnan, the deceased husband had taken two chits for which some amounts were pending and based on the same, the suit pro-note was executed for the security purpose of bid amount and the same was misused to file the suit.
10. Before the trial Court, the plaintiff examined himself as P.W.1 and defendant was examined as D.W.1 and marked Exs.A1 and A2. On the side of the defendants Exs.B1 to B3 were marked.
11. The case of the plaintiff/appellant is that in order to purchase the piece of land, the husband of the first defendant has borrowed the suit amount of Rs.1,25,000/- and executed Ex.A1/ suit pro-note on 28.12.1995.
12. In the cross-examination P.W.1 has admitted that he has not obtained the signature of his father or brother as a witness to the said transaction since both the plaintiff and the husband of the first defendant are very close friends known to each other and worked in L.I.C as an agent for many years.
13. The first defendant - widow of the deceased borrower and the second defendant is the son of the said person and third defendant Selvi suba against whom the suit was mistakenly dismissed as no such daughter is available for the deceased person. However, the trial Court has rightly come to the conclusion based upon the answer elicited in the cross-examination that the name of her daughter is suba alias Vijayalakshmi and she was called as Suba in at home assumes significance.
14. In the written s
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