The central legal point established in the judgment is the importance of proving the execution of a promissory note and the capacity to lend the claimed amount, especially when the execution is denied. The judgment emphasized the need for clear and credible evidence to establish the genuineness of the promissory note and the capacity of the lender.

JUDGMENT :

Prayer: First Appeal is filed under Section 96 of the Code of Civil Procedure against the judgment and decree of the Additional District Judge’s (FTC No.IV Court, Coimbatore at Tirupur, dated 14.02.2007 in O.S.No.437 of 2004.

1. This Appeal arising out of judgment and decree passed by the trial Court in the suit filed for recovery of money based on promissory note. The 1st defendant in the suit is the Appellant herein.

2. The brief facts of the case is that, the 1st defendant/Shanmugavelu and his father form joint hindu family. The properties were purchased in the name of the father, who is the 2nd defendant. Due to old age of the father, the 1st defendant was appointed as Karta and he was looking after the joint family properties. To improve the joint family properties and to met out the family expenses, the defendants borrowed a sum of Rs.7,60,000/- from the plaintiff on 13.05.2000. A Promissory note was executed by the 1st defendant for the said amount. He agreed to pay interest at Rs.2 per month per Rs.100/- to the plaintiff. In spite of repeated demands, the defendants not paid the interest or principal amount. Legal notice to the defendants was issued on 20.03.2003 calling upon them to repay the amount. The defendants received the notice. The 1st defendant chosen not to reply the notice. The 2nd defendant replied on 31.03.2003 denying the borrowing and execution of pro-note.

3. The suit was filed for recovery of the said principal amount with interest restricting to 9%. Pending suit, the 2nd defendant died and therefore, his wife the 3rd defendant was impleaded on the premise that, the loan was borrowed for improvement of joint family properties and therefore, right to sue survives on the death of 2nd defendant.

4. In the written statement filed by the 1st defendant, the entire allegations made in the plaint were denied as false, frivolous and vexatious. According to the first defendant, he is not appointed by the 2nd defendant as the Manager of the joint family property. He separated from his father and residing at T.B.Road, Kottayam, Kerala, since 1999. The alleged pro-note was not executed by him and he never borrowed any money from the plaintiff. In fact, the plaintiff and the 1st defendant along with few others started a partnership firm in the name and style of M/s.Trico Tex at Tiruppur. At that time, signed cheque leaf of the partnership firm and given it in possession of the plaintiff. The cheque leaf of M/s.N.S Agencies, a proprietorship firm owned by the 1st defendant was also given to the plaintiff on trust for obtaining financial aid to run M/s.Trico Tex. In the year 1998, he closed his proprietorship concern M/s.N.S Agencies and also closed the bank accounts. The pre-suit notice sent to his Tiruppur address was re-directed to his Kerala address, where he is residing and working as a Marketing Executive in S.S.Syndicate. On receipt of the frivolous notice on 31.03.2003 at Kerala, he replied through his Counsel on 16.04.2003. The properties which are mentioned as joint family property are in fact, the self acquired property of the 2nd defendant, who is the absolute owner of the property, in which, the 1st defendant have no right, title and interest.

5. The 2nd defendant in his written statement while denying the averments made in the plaint had reiterated that the defendant Nos.1 & 2 do not form Joint Hindu Family and 1st defendant was not appointed as Manager of the family. The 2nd defendant never borrowed money for the improvement of his land or for digging borewell in his land. In fact, the borewell in his land was dug in the year 1989 itself. There was no necessity for him to borrow a sum of Rs.7,80,000/- from the plaintiff for improvement of his land. In the year 1999 itself, the 1st defendant, who is the son of the 2nd defendant separated from the family and not in talking terms with the 1st defendant. On receipt of the notice dated 20.03.2003 from the plaintiff, suitable reply was sent to the plain