Back
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
G.R. Swaminathan, J.
T.K. Kulandaivelu - Appellant
Versus
K.P. Nallusamy - Respondent
S.A.(MD)No.54 of 2014 and M.P.(MD)No. 1 of 2014
Decided On : 30-04-2021
Negotiable Instruments Act - Section 118 - Suit promissory note - Interest - Suit notice - Defendant filed his written statement denying plaint allegations - According to defendant, he never borrowed any amount from the plaintiff let alone - Stand of defendant is that plaintiff was originally conducting an unregistered chit business - When defendant had bid for the prize money on one occasion, his signature was taken in a blank pro-note for security purpose and that same had been misused - Defendant pleaded that suit pro-note is a rank forgery- Learned trial Munsif framed necessary issues - Plaintiff examined himself as P.W.1 and scribe as P.W.2 and attestor as P.W.3. Ex.A1 to Ex.A4 were marked - Defendant examined himself as D.W.1. No document was marked on side of defendant - After considering evidence on record, learned trial Munsif by Judgment and decree dated decreed suit and directed defendant to pay a sum together with interest at rate of 6% on principal sum from date of plaint till date of realization - Whether presumption had been successfully rebutted by defendant – Held, pro-note was a typed one - But P.W.2 had deposed that pro-note was written down by him - While cross-examining P.W.1, defendant had suggested that the relationship between plaintiff and defendant was not cordial - Plaintiff on other hand replied that after said transaction, relationship came under strain- Defendant had not sent any communication to plaintiff calling upon plaintiff to return blank pro-note retained by him - If defendant had sent such communication demanding return of signed blank pro-note and such a document had been marked, that would have gone a long way in establishing defence of defendant - Of-course, defendant had to rebut presumption only on a balance of probabilities - In this case, except examining himself, no other evidence has been adduced by defendant - Second appeal is allowed.
JUDGMENT :
The plaintiff in O.S.No.278 of 2004 on the file of the Additional District Munsif Court, Karur is the appellant in this appeal. According to the plaintiff, the defendant borrowed a sum of Rs.50,000/- from him and for consideration so received, the defendant executed the suit promissory note- Ex.A1 on 20.07.1994. The defendant agreed to repay the same on demand with interest. However, the defendant did not pay any amount either towards principal or towards interest. Therefore, the plaintiff caused to issue Ex.A2-Notice dated 25.07.1996. It was received by the defendant. The defendant issued Ex.A4 reply on 26.08.1996 denying the averments set out in the suit notice. Since the demand set out in the suit notice was not complied with, the plaintiff filed the suit in question in July 1997. It was numbered as O.S.No.212 of 1997. It was later renumbered as O.S.No.284 of 2004.
2. The defendant filed his written statement denying the plaint allegations. According to the defendant, he never borrowed any amount from the plaintiff let alone on 20.07.1994. The stand of the defendant is that the plaintiff was originally conducting an unregistered chit business. When the defendant had bid for the prize money on one occasion, his signature was taken in a blank pro-note for security purpose and that the same had been misused. The defendant pleaded that the suit pro-note is a rank forgery. The learned trial Munsif framed the necessary issues. The plaintiff examined himself as P.W.1 and the scribe as P.W.2 and the attestor as P.W.3. Ex.A1 to Ex.A4 were marked. The defendant examined himself as D.W.1. No document was marked on the side of the defendant. After considering the evidence on record, the learned trial Munsif by Judgment and decree dated 20.07.2010 decreed the suit and directed the defendant to pay a sum of Rs.87,205/- together with interest at the rate of 6% on the principal sum of Rs.50,000 from the date of plaint till the date of realization. Aggrieved by the same, the defendant filed A.S.No.92 of 2012 before the Additional Sub Court, Karur. The Appellate Court, by Judgment and Decree dated 18.03.2012, set aside the Judgment and decree passed by the trial Court and allowed the first appeal. Challenging the same, this second appeal came to be filed. The second appeal was admitted on the following substantial questions of law:-
(b) Whether the lower Appellate Court committed an error in not considering the version of P.W.1 which categorically proves the case of the plaintiff and that the lower Appellate Court failed to consider that the plaintiff has proved his case without any iota of doubt and hence the burden of proof will shift to the defendant and the defendant has the onus to prove his case as per Sections 101 and 102 of the Indian Evidence Act?
(c) Whether the lower Appellate Court is right in allowing the appeal when the defendant had categorically admitted his signature in Exhibit A1 Promissory Note, whether the lower Appellate Court is correct in shifting the burden of proving Exhibit A1 promissory note on to the appellant?
(d) Whether the lower Appellate Court is justified in coming to the conclusion that when the burden cast upon the plaintiff has been shifted to the defendant by virtue of his admitting signature in Exhibit A1, whether the lower Appellate Court is correct in law in relying upon the nugatory contentions of the defendant and thereby deciding in his favour?
3. Heard the learned counsel on either side.
4. The learned counsel appearing for the appellant reiterated all the contentions set out in the memorandum of grounds and submitted that since the defendant had admitted the signature found in Ex.A1-pro-note, the trial Court rightly drew the presumption under Section 118 of the Negotiable I
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
