S.A.No.419 of 2017

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 24.11.2023

CORAM

THE HONOURABLE MR.JUSTICE S.SOUNTHAR

S.A.No.419 of 2017

and

C.M.P.No.10273 of 2017

Venkatachalam

... Appellant

vs.

1.R.Rajaram

2.R.Ponne

... Respondents

PRAYER: Second Appeal is filed under Section 100 of the Civil Procedure

Code, to set aside the Judgment and Decree dated 08.12.2016 passed in

A.S.No.114 of 2015 by the learned II Additional District Judge at Salem

reversing the Judgment and Decree dated 22.06.2015 passed in O.S.No.49

of 2011 by the learned I Additional Subordinate Judge, Salem.

For Appellant

: Mr.S.Santhosh Kumar

For Respondents

: Ms.P.Abirani

for M/s.V.Srimathi

Senior Advocate

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S.A.No.419 of 2017

J U D G E M E N T

The plaintiff in a suit for recovery of money is the appellant. The

appellant herein filed a suit for recovery of money and the suit was decreed

by the Trial Court and findings of the Trial Court were reversed by the First

Appellate Court and aggrieved by the same, the appellant/plaintiff is before

this Court.

2. According to the appellant/plaintiff, the defendants borrowed a

sum of Rs.5,00,000/- from the appellant on 23.03.2008 and executed a suit

promissory note agreeing to repay the amount with interest at the rate of

12% per annum. Inspite of several demands, the respondents failed to repay

the said amount. Hence, the appellant issued a legal notice on 10.01.2011

calling upon the defendants to repay the amount due under the promissory

note. The notice sent to the 1^st defendant was returned and the notice was

received by the 2^nd respondent. Thereafter, the respondents issued a reply

denying the execution of the promissory note. Therefore, the appellant was

constrained to file a suit for recovery of money.

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S.A.No.419 of 2017

3. The respondents herein filed a written statement and denied very

execution of suit promissory note and passing of consideration. It was also

stated by the respondents that the appellant herein was only a money lender

and he had been set up by one A.Arunachalam and A.Vijaya to file the

present suit. It was further stated that signed blank promissory note were

stolen from respondents by said A.Arunachalam and A.Vijaya and being

close associates of said persons, at the instance of A.Arunachalam and

A.Vijaya, the appellant has filed the present suit.

4. Before the Trial Court, the appellant was examined as PW.1 and

Attestor to the suit promissory note was examined as PW.2 and 5 documents

were marked on behalf of appellant as Exs.A1 to A5. The 1^st respondent was

examined as DW.1 and one Gomathi Nayagam, Manager of the Canara

Bank, Chennai was examined as DW.2. On behalf of respondents, 28

documents were marked as Exs.B1 to B28.

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

available on record, came to the conclusion that appellant proved his suit

claim and granted a decree for recovery of money. Aggrieved by the same,

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S.A.No.419 of 2017

the respondents preferred an appeal in A.S.No.114 of 2015 on the file of the

II Additional District Court, Salem. The First Appellate Court reversed the

findings of the Trial Court and allowed the appeal. Aggrieved by the same,

the unsuccessful plaintiff has come by way of this second appeal.

6. At the time of admission, this Court formulated the following

substantial questions of law:-

“(i) Whether the applicability of Legal Position with

regard to the word “Execution” and “Presumption” under

Section 118 (a) of the Negotiable Instruments Act in the case of

money suit Demand Promissory Note is correct or not?

(ii) Whether the First Appellate Court was correct in

ignoring the evidence of DW1 especially his admissions during

the cross examination which are all very vital in deciding the

issues involved in the case?

(iii) Whether Lower Appellate Court was co