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2022 Supreme(Mad) 73
IN THE HIGH COURT OF JUDICATURE AT MADRAS
R. PONGIAPPAN, J.
Abdul Rahim - Appellant
Versus
Gnanasekaran @ Gnanasekar - Respondent
S.A. No. 1025 of 2010 & M.P. No. 1 of 2010
Decided On : 04-01-2022
For the Appellant :D. Murugan, V. Manohar, Advocates.
For the Respondent:T. Sezhian, Advocate.
Headnote:
Civil Procedure Code, 1908 - Section 100 – Second appeal – Whether conclusion of Lower Appellate Court to reverse trial Court judgment merely on basis of not getting back of document despite examining being discharge is correction it’s part - Whether Lower Appellate Court is justifiable in granting decree against evidence of discharge and without legal enforceability - Whether Lower Appellate Court is correct in holding document is still valid without appreciating fact that consideration was received back in presence of settlement through cheque - Though it was contended by defendant that after receiving loan amount, plaintiff after saying some lame excuses, did not return pro-note executed by him - If it is so, it is for defendant to send a notice immediately after came to his knowledge that plaintiff is attempting to commit cheating - But here it is case, before instituting suit, plaintiff alone had issued notice to defendant - Though in reply notice defendant contended that entire amount was discharged, being reason that amount repaid by defendant is not from his account, this Court is not in a position to accept case of defendant as a true one - Due to reason that defendant has not obtained any acknowledgement from plaintiff towards discharge of loan, this Court cannot hold that story putforth by defendant is true one - Lower Appellate Court has also traversed on same line and reversed finding of trial Court - Substantial Questions of Laws framed are answered in favour of respondent/plaintiff - Second appeal dismissed.
JUDGMENT :
Prayer: The Second Appeal is filed under Section 100 of C.P.C. against the judgment and decree dated 19.03.2010 passed in A.S.No.1 of 2010 on the file of the Subordinate Judge, Panruti, reversing the judgment and decree dated 24.10.2009 passed in O.S.No.51 of 2008 on the file of the Principal District Munsif, Panruti.
1. This second appeal is focused as against the judgment and decree dated 19.03.2010 passed in A.S.No.1 of 2010 by the learned Subordinate Judge, Panruti, reversing the judgment and decree dated 24.10.2009 passed in O.S.No.51 of 2008 by the learned Principal District Munsif, Panruti.
2. For the sake of convenience, hereinafter the parties are called as per their respective litigative status before the trial Court.
3. The laconic averments made in the plaint are as follows:
3.1. On 13.07.2006, the defendant had received a sum of Rs.50,000/- from the plaintiff as a loan and agreed to repay the same with interest at the rate of 12% per annum. In this regard, he executed a pro-note. On demand, the defendant has not repaid the same. Hence, the suit.
4. The averments found in the written statement are as follows:
4.1. Before two years from the date of filing of the suit, the defendant fell in sick. Towards his to repay the same, he made arrangement for selling his house through his cousin one Sait Sahib S/o. Abdul Quddhose. On 02.02.2007, the defendant sold the house and thereafter, he handed over the sale amount to Sait Sahib. After receipt of the said amount, the said Sait Sahib invited all persons, who were lent loan to the defendant and after explaining the position of the defendant, he repaid the loan availed by the defendant through various cheques drawn on Central Co-operative Bank Ltd., Cuddalore. In respect of the plaintiff, the loan amount was discharged by giving a cheque bearing BB No.072547 in favour of the plaintiff. When at the time the Sait Sahib asked about the pro-note executed by the defendant, the plaintiff told to him that the same was misplaced. Thereafter, by using the said pro-note, the present suit has been instituted against the defendant.
5. Based on the above said averments, the trial Court framed necessary issues and tried the suit. Before the trial Court, on the side of the plaintiff, the plaintiff examined himself as P.W.1 and marked three documents as Exs.A1 to A3. Similarly, on the side of the defendant, D.W.1 and D.W.2 were examined and three documents were marked as Exs.B1 to B3.
6. Having considered the materials placed before him, the learned Principal District Munsif, Panruti came to the conclusion that the plaintiff has not proved his case and resultantly dismissed the suit. In the appeal, the learned Subordinate Judge, Panruti reversed the finding arrived at by the trial Court and granted a decree in favour of the plaintiff.
7. At the time of admission, this Court had formulated the following substantial Questions of Law:
(i) Whether the conclusion of the Lower Appellate Court to reverse the trial Court judgment merely on the basis of not getting back of document despite examining being discharge is correction it’s part?
(ii) Whether the Lower Appellate Court is justifiable in granting the decree against the evidence of discharge and without legal enforceability?
(iii) Whether the Lower Appellate Court is correct in holding the document is still valid without appreciating the fact that the consideration was received back in the presence of settlement through the cheque?
8. Heard the learned counsel appearing on either side and perused the materials available on record.
9. It is the case of the plaintiff that on 13.07.2006, the defendant after receiving a sum of Rs.50,000/- as a loan from the plaintiff, executed a pro-note under Ex.A1. Though the same was denied by the defendant as he has not availed any loan from the plaintiff, in respect to the execution of pro-note he has given evidence as the suit pro-note was executed by himself.
10. In the said occasion, the case of the defend
