C.R.P(MD).No.601 of 2021

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

Reserved on : 15.07.2021

Pronounced on : 07.10.2021

CORAM:

THE HONOURABLE MR.JUSTICE K.MURALI SHANKAR

C.R.P.(MD).No.601 of 2021

and

C.M.P(MD)No.3344 of 2021

Kanagaraj

: Petitioner/Respondent/Plaintiff

Vs.

Ramamoorthy

: Respondent/Petitioner/Defendant

Prayer: Civil Revision Petition filed under Article 227 of the

Constitution of India, against the fair and executable order dated

05.01.2021, passed in the application in I.A.No.100 of 2020 in

O.S.No.5 of 2019, on the file of the Additional District Court (Fast

Track Court), Palani.

For Petitioner : Mr.J.Barathan

For Respondent

: Mr.D.Venkatesh

ORDER

The Civil Revision Petition is directed against the order

passed in I.A.No.100/2020, in O.S.No. 5 of 2019, dated 05.01.2021,

on the file of the Additional District Judge (Fast Track Court)

Palani, in allowing the petition filed under Section 73 of Indian

Evidence Act and under Order 26 Rules 9 and 10 of the Code of Civil

Procedure.

2.The revision petitioner is the plaintiff and he filed the

suit in O.S.No.5 of 2019, for recovery of money due on a promissory

note. The respondent/defendant has filed the written statement and

is contesting the suit.

3.The case of the plaintiff is that the defendant borrowed a

sum of Rs.30,00,000/- on 04.10.2016, for his family expenses and for

constructing building from the plaintiff and executed a promissory

note agreeing to repay the principal amount with interest at 12% per

annum either to the plaintiff or to his order on demand, that

despite the repeated requests, the defendant has failed to pay any

amount towards principal or interest and that therefore, the

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C.R.P(MD).No.601 of 2021

plaintiff was constrained to file the above suit for recovery of

Rs.38,10,000/- with interest at 12% per annum from the date of suit

till payment and for costs.

4.The defence of the defendant is that the defendant has

neither borrowed any amount nor executed any promissory note in

favour of the plaintiff, that the plaintiff with the help of his

close friends had created the promissory note and filed the suit,

that the defendant's signature has been forged and the thumb

impression found in the promissory note is not that of the

defendant, that the plaintiff has no capacity to advance the loan

amount of Rs.30,00,000/-, that the plaintiff's brother's wife Kanna,

who is running a Textile Shop in the building owned by the defendant

has filed a suit against the defendant for permanent injunction and

that the said Kanna had setup the plaintiff to file the above suit

with evil intention and to cause hardship to the defendant.

5.Pending suit, the plaintiff has filed a petition in

I.A.No.125 of 2019 under Order 26 Rule 9 C.P.C read with Section 45

of the Evidence Act for appointment of Advocate Commissioner to take

the promissory note, dated 04.10.2016 to the hand writing expert,

for comparing the disputed signature of the defendant on the

promissory note with admitted signatures of the defendant and for

getting expert opinion. The defendant has filed a counter

statement, stating that he did not execute any promissory note, that

the plaintiff has filled up the printed form of promissory note

given by the defendant long ago to his land-lord and that the

promissory note should be sent to expert, to findout the age of the

ink.

6.At the enquiry, the learned Counsel for the plaintiff has

made an endorsement that since the defendant has admitted the

signature found in the suit promissory note, the said petition may

be dismissed as withdrawn. The learned Additional District Judge,

by recording the endorsement made by the learned Counsel for the

plaintiff, has dismissed the said petition as withdrawn, vide or