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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
V. BHAVANI SUBBAROYAN, J.
Rabel – Appellant
Versus
E. Soundararajan – Respondent
S.A. (MD) No. 593 of 2020, C.M.P. (MD) No. 6340 of 2020
Decided On : 03-01-2022
Negotiable Instruments Act, 1881 - Section 24 - Legal Notice - Executed unfilled Promissory Note - Suit Promissory Note - Resisting claim made by plaintiff defendant filed written statement contenting among other-things that there is no execution of promissory note - After death of defendant's father plaintiff expressed his desire to purchase property of plaintiff's father measuring an extent of cents in S.F. for a sale consideration of amount - When defendant told the plaintiff that only after getting the release deed from his mother and sister sale deed can be executed - Unless and until they release it cannot execute sale as it is a joint family property - Further he has informed that it may take more than one or two year to have the sale deed executed and plaintiff executed his willingness to pay advance amount to defendant - As the plaintiff was agreed to interest such claim the defendant was agreed to sell property for a consideration of Amount and the plaintiff paid a sum of amount as advance amount and defendant who had received money as a security has executed unfilled promissory note in favour of the plaintiff for which sale deed is executed.
Finding of the Court:
During cross examination plaintiff deposed that defendant brought attestors and scribe to his house situated at and as per dictate of defendant promissory note was prepared by scribe Subramanian with his pen - PW-2 an attestor to suit promissory note who was examined to corroborate evidence of plaintiff deposed that defendant took him to plaintiff's house and that suit promissory note already prepared through computer was brought by defendant and that he signed in promissory note - Admittedly Ex.A1 was prepared through computer - If really suit promissory note had been executed by the defendant as claimed by the plaintiff absolutely there is no possibility of material contradictions creeping into evidence of PW-1 and PW-2 with regard to execution of suit promissory note - Further admittedly there was a civil dispute between defendants father and PW-2 it is hard to comprehend that defendant would have brought PW-2 for purpose of making attestation in suit promissory note and therefore this Court is of view that PW-2 is not a trustworthy witness.
Result: Second Appeal is partly Allowed.
JUDGMENT :
V. BHAVANI SUBBAROYAN, J.
1. The present second appeal has been filed challenging the judgment and decree passed in A.S. No. 101 of 2018 dated 29.07.2019 on the file of the III Additional District Court, Tirunelveli confirming the judgment and decree passed in O.S. No. 160 of 2016 dated 03.08.2018 on the file of the Sub Court, Sankarankovil.
2. For the sake of convenience, the parties are referred to as, as described before the trial Court.
3. The case of the plaintiff, as per the averments made in he plaint, in short, reads as follows:
4. Resisting the claim made by the plaintiff, the defendant filed written statement contenting among other-things that there is no execution of promissory note. After the death of defendant's father the plaintiff expressed his desire to purchase the property of the plaintiff's father measuring an extent of 28 cents in S.F. No. 102/2, Vagaikulam for a sale consideration of Rs. 2,50,000/-. When the defendant told the plaintiff that only after getting the release deed from his mother and sister, the sale deed can be executed. Unless and until they release it, he cannot execute sale, as it is a joint family property. Further, he has informed that it may take more than one or two year to have the sale deed executed and the plaintiff executed his willingness to pay advance amount to the defendant. As the plaintiff was agreed to interest such claim the defendant was agreed to sell the property for a consideration of Rs. 2,50,000/- and the plaintiff paid a sum of Rs. 1,90,000/- as advance amount and the defendant who had received the money as a security has executed unfilled promissory note in favour of the plaintiff for which the sale deed is executed. Subsequently on 30.09.2014 the defendant's sister and mother executed a released deed and the defendant informed him to come and pay the remaining amount so that settlement deed can be executed. After receipt of entire consideration he also handed over the original documents and title to the plaintiff, but the plaintiff did not come forward to perform as per contract by paying the amount and get the sale deed executed. Since many buyers are coming the defendant insisted the plaintiff to honour the said agreement but the plaintiff was developing enmity over the defendant had fabricated the suit promissory notes with the help of his associates by utilizing the signature of the defendant found in the unfilled promissory note executed by the defendant. The defendant has not borrowed Rs. 4,00,000/- from the plaintiff through the suit promissory note. For the legal notice issued by the plaintiff the defendant has sent a suitable reply notice. The defendant is ready to repay the advance of Rs. 1,90,000/- received by him from the plaintiff and the cause of action set out in the plaint is an imaginary one, hence prays for dismissal of the suit.
5. The trial Court has framed four issues for determination of the suit, as under:
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