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2022 Supreme(Mad) 294

IN THE HIGH COURT OF JUDICATURE AT MADRAS
S. KANNAMMAL, J.
D. Santhamani @ Santhi & Others – Appellants
Versus
S. Vijayanandan – Respondent
C.R.P.(PD). Nos. 2044, 2045 & 2046 of 2021 & C.M.P. No. 15545 of 2021
Decided on : 14-02-2022

Advocates:
Advocate Appeared:
For the Appellant :I. Abrar Mohamed Abdullah, Advocate.
For the Respondent:K. Myilsamy, Advocate.

Headnote:

Constitution of India,1950 - Article 227 - Fair and decreetal orders - Seeking to summon - Recovery of money - Recover suit claim - Respondent is plaintiff and petitioners are defendants in suit in O.S above suit has been filed against petitioners/defendants to recover suit claim along with interest per annum from suit till of realization and for costs - Pending suit petitioners have filed Interlocutory applications in I.A. before trial Court seeking to summon Sub Registrar office to cause production original of document and to appoint a scientific expert and also an Advocate Commissioner to take possession of original Pro-Note along with admitted documents and to deliver same to Forensic Department State of Tamil Nadu and to secure a report with respect to alleged LTI of husband defendant found in Ex.A1 and also to summon Union Bank of India Branch to cause production original of document trial Court after hearing both parties dismissed applications by a common order against which these Civil Revision Petitions have been filed – Held, On Judgment reported in Benefit Fund Ltd and submitted that as there is a material alteration in promissory note same is void as against deceased and in order to substantiate their contention petitioners have filed those Interlocutory Applications and trial Court had dismissed those applications on ground that as though petitions were filed belatedly to drag on proceedings - This Court in CRP had clearly given a finding that petitioners are entitled to deny thumb impression of deceased in promissory note - As said is not alive admitted signature could not be obtained - Miscellaneous Petition is closed.

JUDGMENT :

(Common Prayer: These Civil Revision Petitions have been filed, under Article 227 of the Constitution of India, to set aside the fair and decreetal orders, made in I.A.Nos.6, 7 & 8 of 2021 in O.S.No.456 of 2018, dated 06.09.2021, on the file of the II Additional District Court, Tiruppur.)

1. These Civil Revision Petitions have been filed, against the fair and decreetal orders, made in I.A.Nos.6, 7 and 8 of 2021 in O.S.No.456 of 2018, dated 06.09.2021, on the file of the II Additional District Court, Tiruppur.

2. The facts of the case, in a nutshell, are that the respondent herein is the plaintiff and the petitioners are the defendants in the suit in O.S.No.456 of 2018. The above suit has been filed against the petitioners/defendants, to recover the suit claim of Rs.22,80,000/- along with interest @ 12% per annum from 26.09.2017 from the date of the suit till the date of realisation and for costs. Pending suit, the petitioners herein have filed the Interlocutory applications in I.A.Nos.6, 7 and 8 of 2021 before the trial Court, seeking to summon “the Sub-Registrar, Sub Registrar office, Nallur” to cause production the original of document No.1691/2015 and to appoint a scientific expert and also an Advocate Commissioner to take possession of original Pro-Note dated 25.05.2017 (Ex.A1) along with the admitted documents and to deliver the same to the Forensic Department, State of Tamil Nadu and to secure a report with respect to alleged LTI (Left Thumb Impression) of the husband of the 1st defendant viz., (late) Duraisamy found in Ex.A1 and also to summon “Union Bank of India, Tiruppur Branch, Tiruppur” to cause production the original of document No.1691/2015. The trial Court after hearing both parties, dismissed the applications by a common order, dated 06.09.2021, against which these Civil Revision Petitions have been filed.

3. This Court heard the learned counsel for the petitioners and the respondent and also carefully perused the materials placed on record.

4. The petitioners are the defendants in the suit in O.S.No.456 of 2018 which was filed by the plaintiff/respondent herein for recovery of money. The petitioners are the legal heirs of the deceased Duraisamy who alleged to have executed a promissory note for a sum of Rs.20 lakhs and to clear the principle amount, the deceased Duraisamy had issued a cheque of Rs.20 lakhs to the respondent herein and when the cheque was failed to fetch its value, a legal notice was sent and a Criminal Case has also been registered against the deceased Duraisamy in STC No.158 of 2018 and the same is now pending. The respondent/plaintiff after coming to know the death of Duraisamy, had instituted the suit for recovery of Rs.22,80,000/- against the petitioners who are the legal heirs of the deceased Duraisamy.

5. The petitioners herein filed written statement denying the allegations made by the respondent and stated that the respondent is totally a stranger and the deceased Duraisamy had no transaction whatsoever with the plaintiff at any point of time. It has been specifically stated by the petitioners that the said deceased Duraisamy had chit transaction with one Padmanabhan and towards the said transaction, the plaint mentioned cheque and Pro note were given in blank form containing his signature only to the said Padmanabhan. It is further stated in the written statement that the chit transaction was settled long back and there is no due and payable by the said deceased Duraisamy to the said Padmanabhan. However, the said Padmanabhan with the dishonest intention, misused the pro note and bank cheque and set up the respondent herein to file a false suit.

6. Before the trial Court, the respondent herein was examined as P.W.1 and one Viswanathan was examined as P.W.2 and when the suit is pending for defendants side evidence, the petitioners have filed the Interlocutory applications in I.A.Nos.6, 7 and 8 of 2021.

7. The learned counsel for the petitioners submitted that the respondent herein

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