Challenge in this second appeal is made to the Judgment and Decree dated 09.10.2009, passed in A.S.No.88 of 2009, on the file of the Principal Subordinate Court, Madurai, confirming the Judgement and Decree, dated 15.04.2009, passed in O.S.No.1299 of 2006, on the file of the Principal District Munsif Court, Madurai Town.
2. The second appeal has been admitted on the following substantial questions of law:
“1. Whether the finding of the Courts below in granting decree, in the absence of the evidence of collection agent who collected the cash payment on 10.08.2004 when the appellant seriously put forth that he had made several cash payments?
2. Whether the Courts below are right in fixing the responsibility on the appellant to prove that cash payments were made through collection agent when the respondent has admitted cash payment on 10.08.2004?
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3. Whether the Courts below are right in believing Ex.A-4, the statement of accounts of the appellant for passing the decree in the absence of entry for the receipt of cash payment on 07.07.2004 as alleged in the plaint?
4. Whether in law the Courts below are erred in holding that the suit has been filed within the period of Limitation?”
3. Considering the scope of the issues involved between the parties as regards the subject matter lying in a narrow compass, it is unnecessary to dwell into the facts of the case in detail.
4. The parties are referred to as per the rankings in the Trial Court for the sake of convenience.
5. It is noted that the plaintiff had laid the suit against the defendant for recovery of money and it is not in dispute that the defendant had obtained the loan of Rs.46,000/- from the plaintiff for the purchase of computer agreeing to repay the said sum in installments and in this connection, it is seen that a loan agreement had been executed by the defendant in favour of the plaintiff and consequently, a promissory note had also been executed by the defendant in favour of the plaintiff concerning the above said loan transaction. The above said documents have been exhibited as Exs.A1 and A2. It is noted that http://www.judis.nic.in 4 the defendant had not paid the loan amount in installments as agreed to. It is further noted that towards the discharge of the loan, the defendant is found to have executed certain cheques, which have been subsequently dishonoured. That apart, inasmuch as the defendant had failed to repay the loan amount borrowed as above stated, the plaintiff had also issued a pre-suit notice calling upon the defendant to pay the sum. As no response had been received from the defendant with reference to the above said claim, it is seen that the suit had come to be laid by the plaintiff for the recovery of the loan amount.
6. On an analysis of the written statement putforth by the defendant, it is seen that he has taken two main pleas for resisting the plaintiff's suit. The first plea is that the suit laid by the plaintiff is barred by limitation. The second plea is that according to the defendant, he has discharged the loan amount by paying the same in installments to the agent of the plaintiff, by name Saravanan and accordingly, it is the case of the defendant that the entire loan had been discharged by him.
7. Considering the materials placed on record, it is noted that inasmuch as the defendant had failed to pay the amount borrowed from the plaintiff as promised, it is seen that the plaintiff has issued a legal notice marked as Ex.A3. The plaintiff has also marked the account copy of the defendant as http://www.judis.nic.in 5 Ex.A4, in which, the amount due from the defendant has been detailed. That apart, it is also noted that several cheques issued by the defendant, with reference to the loan transaction, had been dishonoured and as determined by the Courts below, the last cheque, which got dishonoured, is dated 07.07.2004 and the suit laid by the plaintiff is within the three years period of time from the issuance of the last cheque, as rightly determined by the Courts below, the suit laid by the plaintiff is well within the time allowed by the law. In the aforesaid circumstances, the contention putforth by the defendant that the suit laid by the plaintiff is barred by limitation has been rightly answered by the Courts below in favour of the plaintiff and I do not find any reason to interfere with the same.
8. As regards the other plea of discharge putforth by the defendant, it is stated by the defendant that he has paid the amount in installments to the agent of the plaintiff, by name Saravanan. However, the said fact has been challenged by the plaintiff. Despite the same, the defendant has not chosen to examine the so-called agent of the plaintiff, by name Saravanan, to prove his defence. As rightly determined by the Courts below, if really the sum had been paid by the defendant to the agent of the plaintiff, by name Saravanan, as a prudent person, the defendant would have obtained necessary receipts from the said Saravanan with reference to the same. On the other hand, it is http://www.judis.nic.in 6 seen that no proof has been placed by the defendant with reference to the discharge of the loan amount by paying the same to the Saravanan, the plaintiff's agent. In such view of the matter, the Courts below have rightly disbelieved the defence projected by the defendant as regards the discharge of the loan amount and the same does not warrant any interference.
9. As rightly determined by the Courts below, the dismissal of the criminal case instituted by the plaintiff against the defendant by itself would not enure to the benefit of the defendant as it is noted that the above said case had come to be dismissed for non-prosecution on account of the failure of the plaintiff to pay the necessary batta for issuance of the process. Therefore, as rightly determined by the Courts below, the order passed in the above said criminal case by the Magistrate Court would not in any manner absolve the defendant's liability from paying the loan amount to the plaintiff as prayed for.
10. In the light of the above discussions, in my considered opinion, no substantial question of law is involved in this second appeal. Be that as it may, the substantial questions of law formulated in this second appeal, for the reasons afore-stated, are accordingly answered against the defendant and in favour of the plaintiff.
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11. In conclusion, the second appeal fails and it is dismissed with costs. Consequently, connected miscellaneous petition is closed.