IN THE HIGH COURT OF JUDICATURE AT MADRAS

RESERVED ON:08.11.2016

DATE OF DECISION:01.03.2017

CORAM:

THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN

A.S.No.549 of 2008

G.Vasantha

... Appellant/Defendant

Vs

Sri Maharaja Kailash Benefit Fund Ltd.,

Mayiladuthurai, a Company incorporated under

The Indian Companies Act, represented by

its Chairman and Managing Director

P.C.Kallashchand Jain, S/o.Chitharmal Jain

No.18/5. Gandhiji Road,

Mayiladuthurai Town & Munsifi.

... Respondent/Plaintiff

This appeal is filed under Section 96 of C.P.C. against the

judgement and decree of the District Court, Nagapattinam in

O.S.No.68 of 2004 dated 08.02.2008.

For Appellant

: Mr.Sivakumar

for M/s.La Law

For Respondent : Mr.M.Aravindkumar

& Mrs.J.Jothi Rani

J U D G E M E N T

The defendant who has suffered a money decree in O.S.No.124

of 2003 on the file of the District Court Nagapattinam is the

appellant. The respondent which is a Benefit Fund incorporated

under the Indian Companies Act, 1956, instituted the above suit

for recovery of a sum of Rs.5,45,333/- allegedly due on a

promissory note said to have been executed by the defendant on

21.05.2000 for a sum of Rs.4,00,000/-.

2.

According to the plaintiff, the defendant had borrowed

a sum of Rs.4,00,000/- on 21.05.2000 promising to repay the same

with interest at 24% per annum. The defendant did not come

forward to pay the amount, inspite of legal notice dated

20.12.2002, on the other hand she has chosen to issue a reply on

02.01.2003 denying the very borrowing. Hence, the plaintiff

filed the above suit. In the plaint, the plaintiff had stated

the facts relating to certain other borrowings made by the

defendant from the plaintiff and the initiation proceedings

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

under Section 138 of Negotiable Instruments Act, which came to

be settled by the defendant by making payments.

3.

The defendant resisted the suit contending that she

never borrowed a sum of Rs.4,00,000/- from the plaintiff and did

not execute the promissory note on 21.05.2000. She would claim

that she borrowed a sum of Rs.20,000/- from the plaintiff. As a

security for the said borrowings, the plaintiff had obtained

four blank cheques bearing numbers 543027 to 543030 payable at

Indian Bank Mayiladuthurai Branch and the two blank promissory

notes for the said sum of Rs.20,000/-. The plaintiff had

presented one of the cheques bearing No.503028 and upon it being

dishonoured, it had launched proceedings under Section 138 of

Negotiable Instruments Act.

4.

It is admitted case of the parties that proceedings

under Section 138 of Negotiable Instruments Act ended in a

compromise. The defendant would contend that the claim made by

her in the reply notice are the true and correct facts. Apart

from the above in the additional written statement filed by her

on 01.3.2007, the defendant took a plea of material alteration

of suit promissory note. According to the defendant, the suit

promissory note has been tampered with and corrections have been

made in the date as well as in the consideration of the

promissory note, which makes it a void document under Section 87

of the Negotiable Instruments Act. On the above contentions, the

defendant claimed that the plaintiff is not entitled to the suit

claim.

5.

The Mr.P.C.Kailash Chand Jain, the Managing Director of

the plaintiff was examined as PW.1 and Exs.A1 to A7 were

marked. Defendant examined herself as DW1 and Exs.B1 to B3 were

marked. The Trial Court framed following issues:-

(1) Whether the plaintiff is entitled to recover the suit

amount with subsequent interest as claimed in the plaint?

(2) To what relief the plaintiff is entitled to?

An additional issue was also framed:

(1) Whether the suit is barred by limitation?

(3)

6.

On a consideration of the evidence on record, the

learned District Judg