IN THE HIGH COURT OF JUDICATURE AT MADRAS

JUDGMENT RESERVED ON :10.01.2022

JUDGMENT DELIVERED ON :02.03.2022

CORAM

THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN

S.A.Nos.142 of 2012

and

M.P.No.1 of 2012

1.R.Barathbaran (Died)

..Appellant/Respondent/Plaintiff

2.Kalavathy

3.P.Vedhabaskaraguptha

4.P.Gnanaabaskaraguptha

..Appellant

Vs.

R.Nallathambi

..Respondent/Appellant/Defendant

[Appellant 2 to 4 brought on record

as LRs of the deceased sole

appellant

vide

order

dated

16.11.2021 made in CMP.2977/2021 in

S.A.No.142/12 by TKRJ]

PRAYER: This Second Appeal is filed under Section 100 of C.P.C.,

against the judgment and decree dated 02.06.2011 made in

A.S.No.4 of 2009 on the file of the Principal District Court,

Namakkal, in reversing the judgment and decree, dated 20.04.2009

made in O.S.No.295 of 2008 on the file of the Sub Court,

Rasipuram.

For Appellants : Mr.N.Manokaran

For Respondent : Mr.C.Prakasam

JUDGMENT

The successful plaintiff is the appellant herein.

2. For the sake of convenience, the parties are referred to

as per the ranking before the trial Court.

3. The plaintiff has filed the suit in O.S.No.345 of 2006 on

the file of the Sub Court, Namakkal, later transferred and

https://hcservices.ecourts.gov.in/hcservices/

renumbered as O.S.No.295 of 2008 on the file of the Sub Court,

Rasipuram against the respondent herein for recovery of money of

Rs.1,00,000/- each, borrowed by him on 18.02.2004, 10.03.2004

and 05.04.2004 respectively, and executed Ex.A1 to Ex.A3,

promissory notes in favour of the plaintiff for consideration.

After issuing pre-suit notice, dated 15.11.2006, the plaintiff

filed the suit for recovery of the suit claim of Rs.4,59,000/-

along with subsequent interest.

4.Resisting the suit, the defendant filed written statement

inter alia admitting the execution of the suit promissory notes.

However, the defendant raised plea that the above mentioned

promissory notes had been executed towards security for the loan

borrowed, and that the loan due was settled by way of execution

of a sale deed, dated 12.11.1999 in the name of the plaintiff's

wife. It is further alleged that the suit promissory notes were

not supported by consideration and the blank promissory notes

were filled up for the purpose of filing the suit in the year

2004. On the above pleadings, the trial Court framed six issues.

5.On the plaintiff's side, the plaintiff has examined three

witnesses besides marking Ex.A1 to Ex.A8. On the side of the

defendant, DW1 to DW3 were examined besides marking Ex.B1 and

Ex.B2. More so, Ex.C1 to C5 and Ex.X1 to X5 were marked at the

instance of the respective parties to prove their case.

6.Upon consideration of oral and documentary evidence and

also taking note of the admission as to the execution, the trial

Court considered the statutory presumption under Section 118 of

the Negotiable Instruments Act and the authority of the holder

in due course to fill up the promissory notes under Section 20

of the Act, decreed the suit by the judgment and decree, dated

20.04.2009.

7.Aggrieved by the decree of the suit, the defendant filed

A.S.No.4 of 2009 before the Principal District Court, Namakkal.

First Appellate Court has neither considered the admissions made

in the pleadings and evidences nor taken note of the statutory

presumptions in favour of the plaintiff, but, erroneously

allowed the appeal holding that the thump impression of the

defendant was not obtained in Ex.A1 to Ex.A3 and that the

signature in each of the promissory notes is different from each

other on comparison by a naked eye. Accordingly, lower Appellate

Court reversed the judgment of the trial Court and dismissed the

suit by the judgment and decree, dated 02.06.2011. Being

aggrieved by the reversal findings of the first Appellate Court,

the plaintiff filed this second appeal before this Court and the

plaintiff had the b