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IN THE HIGH COURT OF JUDICATURE AT MADRAS
R. PONGIAPPAN, J.
K. Mariappan - Appellant
Versus
M.P. Kumarasamy - Respondent
S.A. No. 1387 of 2010 & M.P. No. 1 of 2010
Decided On : 01-12-2021
Code of Civil Procedure,1908 - Section 100 - Negotiable Instruments Act - Section 118 - Indian Evidence Act - Section 118 - Seeking the relief of direction - Whether Lower Appellate Court has erred in not appreciating that appellant herein as plaintiff has proved execution of promissory note by defendant by examining PW2 attesting witness and PW3 the scribe and that they have clearly deposed that on date of execution of Ex.A1, promissory note defendant received amount and executed the promissory note - Whether Lower Appellate Court has erred reversing well considering findings of trial Court that execution of suit promissory note has been proved by plaintiff corroborated with the report of expert opinion who has clearly opined that signature found in Ex.A1 is that of defendant - Whether Lower Appellate Court has failed to apply rule of law that once plaintiff has proved execution of suit promissory note, Section 118 of Negotiable Instruments Act creates a Statutory presumption that same - Whether Lower Appellate Court is right in not dismissing appeal and decreeing the suit on sole ground that defendant has failed to appear and depose his evidence by entering into the witness boss and no witnesses has been examined on side of defendant to deny or disprove the pleadings of plaintiff - Whether Lower Appellate Court is right in not dismissing appeal and decreeing suit on sole ground that admittedly that defendant in his written statement has not denied his signature in promissory note and has equally not chosen to enter into the witness box to depose his evidence to disprove the case of plaintiff - Expenses and executed a promissory note to repay same with interest - Demands and notice - Appellant/plaintiff has filed a suit before learned Principal Subordinate Judge, seeking relief of direction, directing the defendant to pay a sum - Learned Principal Subordinate Judge, Gobichettipalayam, allowed suit and directed the defendant to pay suit amount to the plaintiff. - Held, Signature found in suit pronote belongs to defendant rightly pointed out by learned counsel for respondent the said finding arrived at by the trial Court is erroneous Without proving contents of document by examining relevant witness, taking judicial notice is unnecessary - PW1, admitted himself as he was working under defendant as a clerk, further, he had held that defendant has not paid his salary - PW2 has also given evidence as for the reason he committed fraud, defendant ousted him from his company - Evidence in respect to execution of pronote coupled with said circumstances create a doubt and shows a probability that present case has been foisted against defendant for the ulterior motive having by PW1 and PW2 - Appeal is dismissed.
JUDGMENT :
(Prayer: This Memorandum of Second Appeal is filed under Section 100 of Code of Civil Procedure, against the Judgment and decree dated 07.07.2010 made in A.S.No.127 of 2009 on the file of the learned Principal District Judge, Erode, reversing the judgment and decree dated 30.06.2009 made in O.S.No.53 of 2004 on the file of the learned Principal Subordinate Judge, Gobichettipalayam.)
1. The present appeal is directed against the judgment and decree dated 07.07.2010 made in A.S.No.127 of 2009 on the file of the learned Principal District Judge, Erode, reversing the judgment and decree dated 30.06.2009 passed in O.S.No.53 of 2004 dated 30.06.2009, on the file of the learned Principal Subordinate Judge, Gobichettipalayam.
2. The appellant/plaintiff has filed a suit before the learned Principal Subordinate Judge, Gobichettipalayam in O.S.No.53 of 2004 seeking the relief of direction, directing the defendant to pay a sum of Rs.1,21,665/- with subsequent interest at the rate of 12% per annum to the plaintiff.
3. By judgment and decree dated 30.06.2009, the learned Principal Subordinate Judge, Gobichettipalayam, allowed the suit and directed the defendant to pay the suit amount to the plaintiff. Being dissatisfied with the said findings, the defendant preferred an appeal in A.S.No.127 of 2009 on the file of the learned Principal District Judge, Erode, praying to set aside the judgment and decree dated 30.06.2009 passed by the learned Principal Subordinate Judge, Gopichettipalayam.
4. By judgment and decree dated 07.07.2010, the learned Principal District Judge, Erode, allowed the appeal and dismissed the suit filed by the plaintiff. Feeling aggrieved by the same, the plaintiff is before this Court with the present second appeal.
5. For the sake of convenience, hereinafter the parties are referred to, as per their litigative status before the trial Court.
6. The averments made in the plaint, in brief are as follows:
7. The case of the defendant, as averred in the written statement, is as follows:
8. Based on the above pleadings, the learned Principal Subordinate Judge, Gobichettipalayam, framed necessary issues and tried the suit. On the side of the plaintiff, the plaintiff examined himself as PW1. He examined two more witnesses on his side as PW2 and PW3 and marked seven documents as Ex.A1 to Ex.A7. On the other hand, none have been examined as defendant’s side witness. However, during the time of cross examination of PW1, the defendant exhibited six documents as Ex.B1 to Ex.B6.
9. Having considered all the materials placed before him, the learned Principal Subordinate Judge, Gobichettipalayam, concluded the suit that the plaintiff is entitled to receive the suit amount from the defendant. In the appeal filed by the defendant before the learned Principal District Judge, Erode, in A.S.No.127 of 2009, the findings arrived at by the trial Court was reversed and held that the plaintiff has not proved his case.
10. Feeling aggrieved over the same, the plaintiff
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