S.A.No.289 of 2017

IN THE HIGH COURT OF JUDICATURE AT MADRAS

RESERVED ON

: 20.10.2023

PRONOUNCED ON

: 28.11.2023

CORAM

THE HONOURABLE MR. JUSTICE S.SOUNTHAR

S.A.No.289 of 2017

Vijayalakshmi @ Vennila

... Appellant

vs.

P.Kandaswamy

... Respondent

Prayer:- Second Appeal is filed under Section 100 of Civil Procedure Code,

praying to set aside the Judgement in A.S.No.10 of 2015 and decree dated

29.07.2015 on the file of the Principal District Judge, Namakkal confirming

the judgement and decree dated 07.10.2013 made in O.S.No.317 of 2008 on

the file of the Sub-Ordinate Judge of Trichencode.

For Appellant

: Mrs.V.Srimathi

For Respondent

: Mr.N.Manokaran

J U D G M E N T

The unsuccessful defendant in a suit for recovery of money based on

promissory note is the appellant. The respondent herein filed a suit for

recovery of money. The suit was decreed by the Trial Court and the findings

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of the Trial Court were affirmed by the First Appellate Court. Aggrieved by

the concurrent findings of the First Appellate Court, the appellant is before

this Court.

2. According to the respondent/plaintiff, the appellant herein

borrowed a sum of Rs.1,50,000/- from the respondent for family expenses

on 02.01.2005 and executed a suit promissory note agreeing to pay interest

at the rate of 18% per annum. Inspite of several demands by the respondent,

appellant failed to repay the same and hence, the suit was laid for recovery

of money based on the said promissory note.

3. The appellant/defendant filed written statement denying very

execution of the promissory note and borrowal of amount by her. The

averment of the respondent as if, he demanded the money back was also

denied in the written statement. It was further averred by the appellant that

her father A.Muthusamy executed a Settlement Deed in respect of a small

house in her favour. The brother of the appellant requested the appellant to

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S.A.No.289 of 2017

transfer the said house in his name and the same was refused by the

appellant. Therefore, the said Ramachandiran developed ill will against

appellant and instigated his close associate the respondent to file a suit with

concocted forgery document. On these pleadings, she sought for dismissal

of the suit.

4. The Trial Court on appreciation of oral and documentary evidences

available on record, came to the conclusion that execution of suit

promissory note was duly proved and consequently, granted a decree for

recovery of money as prayed for. Aggrieved by the same, the appellant

herein preferred an appeal in A.No.10 of 2015 on the file of the Principal

District Judge, Namakkal. The First Appellate Court affirmed the findings

of the Trial Court and dismissed the appeal. Aggrieved by the concurrent

findings, the appellant is before this Court.

5. The learned counsel appearing for the appellant submitted that the

Courts below erred in granting decree for recovery of money based on

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S.A.No.289 of 2017

promissory note when the said original promissory note was misplaced from

the custody of the Court and the same was reconstructed with the xerox

copy of original promissory note. The learned counsel further submitted that

the order reconstructing the original promissory note was passed without

issuing any notice to the appellant herein. The learned counsel further

submitted that before filing of suit for recovery of money, no pre-suit notice

was issued by the respondent demanding payment of money and the same

creates suspicion with regard to the genuineness of the suit promissory note.

The learned counsel further submitted that pending first appeal, an

application was filed by appellant for sending the suit promissory note for

comparison of the signature of appellant found thereon with the ad