This appeal suit has been preferred against the judgment and decree dated 7.3.2003 in O.S.No.230 of 2000 passed by the learned Additional Sub Judge (In-charge) Mayiladuthurai.
2.The appellant is the defendant in O.S.No.230 of 2000. The respondent/plaintiff has filed the above suit for recovery of amount based on a pronote, said to have been executed by the appellant for Rs.9,00,000/- on 21.12.1997 agreeing to repay the same at 18% p.a. in favour of the plaintiff through a common friend, namely, Sivaji. The case of the respondent/plaintiff is that after borrowing the amount, the appellant has failed to repay the same and even the respondent was unable to find the appellant for insisting the loan amount since he was absconding. In such circumstances, the respondent has filed the above said suit.
3.The said suit was contested by the appellant, by filing written statement, inter alia, denying the execution of the pronote and receiving of any amount thereof. The case of the appellant is that no transaction, much less borrowing loan from the respondent has taken place between the appellant and the respondent. But the appellant had availed a sum of Rs.1,00,000/- from the plaintiff's brother Pugalendhi, who is a Civil Engineer in terms of contract works and also issued a blank pro-note, which was misused by him joining with the respondent/plaintiff. The respondent/defendant also claimed that there is no source of income for the plaintiff to advance such a huge amount of Rs.9,00,000/- to the respondent.
4.On consideration of rival contentions as well as oral and documentary evidence adduced by the parties, the trial Court has decreed the suit. Aggrieved by the same, the appellant/defendant has preferred this appeal.
5.The following are the points for consideration:
1) Whether the suit promissory note is supported by consideration?
2) Whether the suit promissory note was brought about under the circumstances mentioned in the written statement?
3) Whether the Court below is right in decreeing the suit?
4) To what relief is the appellant entitled?
Points No.1 to 4:
6.It is the case of the respondent/plaintiff that the appellant/defendant had executed a promissory note on 12.01.1997 in favour of the respondent on receipt of Rs.9 lakhs agreeing to repay the same with interest at the rate of 18% p.a. and since the appellant did not pay the amount, he filed the suit.
7.On the other hand, the appellant defended the suit by filing the written statement, that the appellant has not executed any pro-note in favour of the respondent and there was no source of income for the respondent to advance such a huge amount of Rs.9 lakhs to the appellant. Further, the plaintiff is possessing small extent of ancestral property through which, he cannot generate such a huge money and therefore, he was not at all in a position to lend the money as alleged in the pro-note, i.e. Rs.9 lakhs to the appellant. It is the specific case of the appellant that he received a sum of Rs.1 lakh from one Pughazhendi, who is an Assistant Engineer in the Highways Department and in lieu of the same, the said Pughazhendi had taken a blank promissory note signed by the appellant and also a blank cheque for Rs.1 lakh and later, the said amount was also repaid to him with interest, but he did not return the pronote, which was misused by him joining with the respondent/plaintiff and filed the suit.
8.In order to establish his case, the respondent/plaintiff examined Pws.2 to 4 apart from examining himself as PW.1. P.W.2 and P.W.3 are the attesters to the promissory note. P.W.2 is one Sivaji who is cousin brother of the respondent. He deposed that the appellant signed in the promissory note in his presence and he attested the same.
9.It is the case of the plaintiff that on earlier occasions the appellant/defendant used to receive the loans from him through P.W.2 and repay with interest. Since the defendant was pressurized for execution of the promissory note after the payment of entire interest, for the balance principal, on 21.12.1997, Ex.A.1 came to be executed for Rs.9 lakhs.
10.P.W.2 in his cross examination has deposed that the defendant did not pay interest for 4 or 5 months and at the time of execution of promissory note he paid the interest. He further deposed that towards the earlier promissory notes the out-standing balance was Rs.9 lakhs and on execution of fresh promissory note the plaintiff returned the earlier promissory notes.
11.P.W.3, one Ravi, the scribe as well as attesting witness to the suit promissory note has deposed in his evidence that the defendant constructed a house in Aranmanai Nagar and he supervised the construction, that Ex.A1 was written in his office and defendant put his signature in his presence, that there was an outstanding of Rs.1,30,000/- as interest and after negotiation it was reduced to Rs.90,000/- and that fresh promissory note was executed for balance principal amount. In his cross examination, he would say that no money was paid except interest. No further question was asked to clarify. From his evidence, it transpires that he supervised the construction of the house of the defendant, which is not denied. Since P.W.3 is very well known to the defendant, there is no room to disbelieve his evidence.
12.P.W.4 is sibling of plaintiff. He is working as Assistant Engineer in Highways Department. He deposed that in 1996, the defendant received a sum of Rs.1 lakh as loan for which he gave a blank promissory note and a cheque as well and that it is also not correct to say that he is a partner in the finance company run by the plaintiff.
13.Worthwhile it is to mention that no motive was attributed to P.Ws.2 to 4 for deposing against the defendant and their evidence are cogent and satisfactory. As far as P.W.3 is concerned, he appears to be very close to the defendant since he has supervised the construction of the house of the defendant. He has supported the claim of the plaintiff. From their evidence it is established that the defendant has executed the suit promissory note for Rs.9 lakhs towards the outstanding balance in respect of earlier promissory notes after payment of Rs.90,000/- as interest by him to the plaintiff.
14. As far as the contention raised by the defendant with regard to the means possessed by the plaintiff is concerned, adequate evidence is available on record. P.W.1 plaintiff would depose in his cross examination that apart from house he has got 35 Ma lands, in which half of the property is ancestral property and another half was purchased by him, that he got the ancestral property from his father that he has got 2 brothers and there was no partition among them, that from 1987 onwards he has been running business from Chennai, which is proprietorship business, that he is running STD booth and Video Library in Chennai.
15. P.W.3 in his cross examination would say that the plaintiff has purchased the land and that apart he has finance company in Chennai. It is also in his evidence that the plaintiff is doing money lending business. Even though it is pleaded in the written statement that the plaintiff has no means to advance the loan to the defendant, the same has not been elicited during the cross-examination of the plaintiff nor stated by defendant in his chief examination and further, in cross examinations of P.W.2 and P.W.4 also, there is no question on behalf of the defendant to the effect that the plaintiff is not having any business in Chennai.
16. The above said circumstances would show that the plaintiff is having sufficient source of income and having means to lend the amount. As regards the questions asked on behalf of the defendant, as to whether IT returns were filed, response from P.W.1 is to the effect that he has been submitting returns for the past three years to the Income Tax Department, but no tax has been charged and that in above said returns, he has not shown the suit loan. The execution of promissory note was on 21.12.1997 by the defendant. P.W.1 was examined on 12.11.2002 and hence, it is discernible that at the time of advancing loan, the plaintiff did not submit any income tax returns to the department. The suit loan was upto the year 1997.
17. While presenting the pleadings in the written statement and in his chief examination, the defendant would say that he took a contract to the value of Rs.15 lakhs while P.W.4 Pughazhendi was in service in Highways Department as engineer and in 1996 he was constrained to complete certain relief works and he was in dire need of Rs.one lakh, he borrowed a sum of Rs.one lakh from P.W.4 in November for which he gave a blank promissory note and a cheque drawn on South Indian Bank as security and he repaid the loan in 1997 March along with interest at the rate of 36% and at that time P.W.4 returned only the cheque and told him that he misplaced the pro-note and he would return it some time later and the signature found in Ex.P.1 Pro-note belongs to him which was obtained from him by P.W.4. In view of the evidence adduced by P.Ws.2 to 4 it comes to light that the pro-note was not brought to existence as pleaded by the defendant in the above said manner.
18. The learned counsel for the Appellant Mr.V. Raghavachari would contend that a careful scrutiny of the oral evidence on record would show that the defendant has rebutted the presumption and that he is not liable to pay any amount to the plaintiff. In support of his contention he relied upon various decisions of this Court. In 2000 (1) CTC 148 [Chinnasamy v. Perumal] it is observed by this Court that it is not open to the plaintiff to pick holes in defendant case and to ask court to accept his case. In 2005 (1) CTC 409 [Ayyakannu Gounder v. Virudhambal Ammal] the above said proposition has been reiterated. In 2010(4) CTC 339 [Mangayarkarasi Ammal and 3 others v. Suresh Bafna] the learned Judge has dealt with a circumstance, where
Section 20 of the Negotiable Instruments Act could not be attracted. It is observed in the decision that a mere reading of the provisions of law in
Section 20 of the N.I. Act would clearly convey and connote that if the contention of the defendant is that he was coerced or under misconception, etc.,forced to sign the blank stamp paper and he was made to part with it, then
Section 20 of the N.I. Act would not be attracted automatically.
19. As far as the facts of the present case are concerned it transpires from oral accounts of P.Ws.1 to 4 that the defendant put his signature in a filled up pro-note and not in a blank pro-note. There is no pleading on the part of the defendant to the effect that he was forced to sign the blank pro-note.
20. In 2010 (2) MWN (Cr.) DCC 65 (Ker.) [M.J.Joseph v. Gladis Sasi] it is observed that to draw the presumption under Section 118 and
139 of the N.I. Act, the plaintiff has to establish that the defendant had drawn the cheque and issued to him, that the evidence of P.W.1 is insufficient to prove the execution, that he only deposed that the cheque was given to him and that he has no case that the cheque was written or signed in his presence. But the facts of the case on hand are otherwise. In the presence of plaintiff the defendant put his signature in the pro-note and the evidence is indicative to show that the suit pro-note was duly executed for consideration.
21. The learned counsel for the appellant also cited a decision of mine reported in 2011(3) CTC 616 [Elumalai v. Subbramani] wherein I have followed the principles laid down by the Honourable Supreme Court in 2008(5) SCC 633 [T. Nagappa v. Y.R. Mudaliar].
22. The learned counsel for the respondent Mr.A. Muthukumar would place reliance upon two decisions of this Court, viz.,
22.(a) 2002 (1) MLJ 830 (Samikannu Naicker versus Sigamani), wherein, it has been held by this Court, that when the promissory note given by the defendant is admitted, the burden is shifted upon the defendant, that the writings in the promissory note were subsequently filled up and he has not borrowed the amount under the promissory note which the defendants have not proved.
22.(b) In 1996 (1) CTC 613 (Meenakshisundaram versus Rangasami N.), this Court has observed that when it is admitted that the defendant executed the promissory note, it follows the story by him that he was looking after the cultivation of the plaintiff's property and that he owed money to the plaintiff and for the said purpose, some signatures were obtained in blank pages in 1972 cannot be accepted. It is settled proposition of law that once the execution of promissory note is admitted, it is for the defendant to prove that no consideration has been passed thereof.
23. In view of the circumstances discussed above, in the light of the decisions aforestated, on a careful scrutiny of the oral evidence on record, it is established that the suit pro-note was executed by defendant for due consideration and presumption under sections 118 and
139 of the Negotiable Instruments Act stand unrebutted. In such a view of this matter, this Court is of the considered view that the suit pro-note is supported by consideration and that it was not brought about under the circumstances mentioned in the written statement. There is no infirmity factually or legally in the judgment rendered by the trial Court which deserves to be confirmed and it is accordingly confirmed. The appeal is devoid of merits and the same has to suffer dismissal. The points are answered accordingly.
24. In the result, the appeal suit is dismissed with costs.
DP/ggs To The Additional Sub Judge (In-charge), Mayiladuthurai