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P. Paramasivan Vs. Ramalakshmi and Anothner - Court Judgment

LegalCrystal Citation
CourtChennai Madurai High Court
Decided On
Case NumberS.A. Nos. 1462 to 1464 of 2000 & C.M.P. (MD) Nos. 13749 & 13750 of 2000
Judge
AppellantP. Paramasivan
RespondentRamalakshmi and Anothner
Excerpt:
.....and only through the first respondent, the appellant came to know the said ena konar. the learned judge failed to see that the first respondent had developed enmity against the appellant and the appellant also gave a complaint on 27.08.1992 [ex.a.4] against the first respondent. the learned judge failed to consider exs.a.4, a.5, a.6 and a.7 in proper perspective and prayed for allowing the second appeals. 8. per contra, the learned counsel for the respondents submitted that the appellant had admitted his signature in the promissory notes and hence, the learned i additional district judge, tirunelveli, had rightly applied the provisions of sections 20 and 118 of the negotiable instruments act. the appellant had failed to prove that he did not borrow rs.30,000/- and rs.17,000/-.....
Judgment:

(Prayer: Second Appeals are filed under Section 100 of Civil Procedure Code, against the common judgment and decree dated 06.11.1998, made in A.S.Nos.135, 134 and 131 of 1997 on the file of the I Additional District Court, Tirunelveli, reversing the common judgment and decree, dated 28.02.1997, made in O.S.Nos.61 of 1993, 131 of 1994 and 59 of 1993, on the file of the Principal Subordinate Court, Tirunelveli.)

1. These Second Appeals have been filed against the common judgment and decree dated 06.11.1998, made in A.S.Nos.135, 134 and 131 of 1997 on the file of the I Additional District Court, Tirunelveli, reversing the common judgment and decree, dated 28.02.1997, made in O.S.Nos.61 of 1993, 131 of 1994 and 59 of 1993, on the file of the Principal Subordinate Court, Tirunelveli.

2. The appellant succeeded in the Trial Court, but lost in the first appellate Court.

3. For convenience, the parties are referred to as appellant [P.Paramasivan], first respondent [S.Kandasamy] and second respondent [Ramalakshmi].

4. Facts of the case:

(i) The first respondent filed a suit in O.S.No.59 of 1993 before the Principal Subordinate Court, Tirunelveli, against the appellant claiming a sum of Rs.36,720/- together with interest at 12% p.a. According to the first respondent, the appellant borrowed a sum of Rs.30,000/- on 04.05.1991 from him and executed Ex.B.1 Promissory Note for the said amount on the same day. The appellant failed to repay the principal and interest in spite of the repeated demands and reminders. Therefore, the first respondent issued a notice [Ex.B.5] dated 05.11.1992 through his Advocate to the appellant. The appellant did not receive the said notice. Therefore, the first respondent has filed a suit in O.S.No.59 of 1993 for the relief stated above.

(ii) The second respondent filed a suit in O.S.No.61 of 1993 before the Principal Subordinate Court, Tirunelveli, against the appellant claiming a sum of Rs.17,000/- together with interest at 24% p.a. According to the second respondent, the appellant borrowed a sum of Rs.17,000/- on 27.06.1991 from her and executed Ex.B.4 Promissory Note for the said amount on the same day. The appellant failed to repay the said amount and interest in spite of the repeated demands and reminders. Therefore, the first respondent issued a notice [Ex.B.7] dated 05.11.1992 through her Advocate to the appellant. The appellant did not receive the said notice. Therefore, the second respondent has filed a suit in O.S.No.61 of 1993 for the relief stated supra.

(iii) The appellant filed written statement in both the suits denying the allegations made by the respondents 1 and 2 and submitted that he borrowed only a sum of Rs.5,000/- in the month of February 1991 from the first respondent and another sum of Rs.5,000/- in the month of March 1991 from the first respondent and executed two blank promissory notes signed by him on stamp papers. The appellant and the first respondent are residing in the same Street and known to each other. Therefore, believing the first respondent, he gave two blank promissory notes duly signed by him. The first respondent insisted on repayment of entire amounts borrowed by him. Therefore, the appellant borrowed a sum of Rs.10,000/- from one Ena Konar on 14.06.1991 and repaid the entire amount together with interest to the first respondent on 14.06.1991. The first respondent promised to return the blank promissory notes, but failed to do so. The first respondent was the President of Temple Committee in Shanthi Nagar Vinayagar Temple and the appellant was a Committee Member. Due to mismanagement of the first respondent, the appellant resigned his post and misunderstanding arose between them. The appellant gave complaint on 27.08.1992 to the police and issued a notice dated 28.08.1992 to the first respondent, who did not receive the said notice. Due to misunderstanding, the first respondent has filled up the blank promissory notes and the respondents 1 and 2 have filed the suits. Therefore, the appellant prayed for dismissal of the suits, as he did not borrow Rs.30,000/- and Rs.17,000/- and repaid the entire amount of Rs.10,000/- borrowed from the first respondent.

(iv) The appellant filed O.S.No.296 of 2013 before the District Munsif Court, Tirunelveli, against the first respondent, for return of two stamped blank promissory notes executed by him and stated as that of the averments made in the written statement filed in the suit filed by the respondents. The said suit was subsequently transferred to the Principal Subordinate Court, Tirunelveli, and renumbered as O.S.No.131 of 1994. The first respondent filed written statements and denied all the allegations. He filed written statement making the same averments made by him in the plaint in O.S.No.59 of 1993.

(v) Based on the pleadings, the learned Principal Subordinate Judge, Tirunelveli, framed necessary separate issues in all the three suits.

(vi) A joint trial was conducted and common evidence was let in.

(vii) Before the learned Principal Subordinate Judge, the appellant examined himself as P.W.1 and one S.Shanmugavel was examined as P.W.2 and marked 11 documents as Exs.A.1 to A.11. The respondents 1 and 2 examined themselves as D.Ws.1 and 2 and one A.S.Raja, attesting witness of the promissory note, was examined as D.W.3 and 8 documents were marked as Exs.B.1 to B.8.

(viii) The learned Principal Subordinate Judge, Tirunelveli, considering the pleadings, both oral and documentary evidence, arguments of the learned counsel for the parties, dismissed the suits in O.S.Nos.59 and 61 of 1993 filed by the respondents 1 and 2 and decreed the suit in O.S.No.131 of 1994 filed by the appellant holding that the appellant proved that he borrowed only a sum of Rs.10,000/- from the first respondent and repaid the same and he did not borrow Rs.30,000/- and Rs.17,000/- from the respondents 1 and 2 and that there were discrepancies in the evidence of D.Ws.1 and 3 and the respondents 1 and 2 do not have any capacity to lend the amounts as alleged by them.

(ix) Against the said judgment and decree, dated 28.02.1997 the first respondent filed A.S.Nos.131 and 134 of 1997 and the second respondent filed A.S.No.135 of 1997 before the I Additional District Court, Tirunelveli.

(x) The respondents 1 and 2 submitted that the appellant borrowed a sum of Rs.30,000/- and Rs.17,000/- from them and they proved the same by their evidence as D.Ws.1 and 2 and the evidence of D.W.3. The appellant having admitted his signature in the promissory notes, failed to prove that he did not borrow the said amounts and that he borrowed only Rs.10,000/- from the first respondent and repaid the same. The learned Principal Subordinate Judge, erred in not accepting the evidence of D.Ws.1 to 3.

(xi) Per contra, the appellant submitted that the respondents failed to prove that they have source of income to lend the amounts and failed to prove that the appellant borrowed the said amounts. On the contrary, the appellant proved that he borrowed only Rs.10,000/- and repaid the same together with interest. The learned Principal Subordinate Judge has given cogent and valid reasons for dismissing O.S.Nos.59 and 61 of 1993 and decreeing the suit in O.S.No.131 of 1994 after appreciating the materials on record in proper perspective.

(xii) The learned I Additional District Judge, Tirunelveli, formulated necessary points for consideration.

(xiii) The learned I Additional District Judge, considering Sections 20 and 118 of the Negotiable Instruments Act, concluded that the respondents are entitled to fill up the blank promissory notes and it is presumed that consideration mentioned in the promissory notes were paid to the appellant and the appellant failed to rebut the said presumption. Rejecting the contention of the appellant that he borrowed only Rs.10,000/- and repaid the same, the learned I Additional District Judge, Tirunelveli, allowed all the three appeals.

5. Aggrieved by the said common judgment and decree, dated 06.11.1998, the appellant has preferred these second appeals.

6. At the time of admitting the second appeals, this Court framed the following substantial question of law:

Whether the lower appellate Court erred in law in reversing the judgment of the trial court on the facts of the case by misconstruing Section 20 and 118 of the Negotiable Instruments Act and casting the onus wrongly?

7. The learned counsel for the appellant contended that the I Additional District Judge, Tirunelveli, failed to see that the first respondent filled up the promissory notes and erred in applying the provisions of Section 20 of Negotiable Instruments Act. The learned I Additional District Judge failed to see that the respondents did not have financial capacity to lend the sums of Rs.30,000/- and Rs.17,000/-. The learned I Additional District Judge failed to see that the appellant borrowed only Rs.10,000/- from the first respondent and repaid the same and proved the repayment by letting in evidence. The appellant could not examine Ena Konar from whom he borrowed Rs.10,000/- and paid the same to the first respondent as the said Ena Konar was very close to the first respondent and only through the first respondent, the appellant came to know the said Ena Konar. The learned Judge failed to see that the first respondent had developed enmity against the appellant and the appellant also gave a complaint on 27.08.1992 [Ex.A.4] against the first respondent. The learned Judge failed to consider Exs.A.4, A.5, A.6 and A.7 in proper perspective and prayed for allowing the second appeals.

8. Per contra, the learned counsel for the respondents submitted that the appellant had admitted his signature in the promissory notes and hence, the learned I Additional District Judge, Tirunelveli, had rightly applied the provisions of Sections 20 and 118 of the Negotiable Instruments Act. The appellant had failed to prove that he did not borrow Rs.30,000/- and Rs.17,000/- and that he borrowed only Rs.10,000/- and repaid the same. The appellant also failed to prove that he paid Rs.10,000/- to the first respondent after borrowing the said amount from Ena Konar. The learned I Additional District Judge has considered all the materials on record and allowed the first appeals based on the finding of fact and there is no error in law or facts.

9. In support of his submissions, the learned counsel for the respondent relied on the following Judgements and prayed for dismissal of the second appeals.

(i) Retnabai Vs. Belarmine Joseph [2013 (2) MWN (Cr.) DCC 17 (Mad).], wherein at paragraphs 28 and 29, it has been held as follows:

28. Section 20 of the Negotiable Instruments Act, 1881 speaks of inchoate instruments. If a person who has signed the Cheque in question and delivers the said Cheque to another by not filling up the writings of the Cheque viz., the writing of the amount and subsequently, if the holder of the Cheque either himself makes the writings of the amount in the Cheque or even allows a stranger/third party to write the writings in regard to the amount and that too in a different ink, yet, it cannot be found fault with, since the Negotiable Instruments Act permits such an act to be performed, which is not either invalid or illegal, in the eye of law.

29. It is to be borne in mind that the ingredients of Section 20 of the Negotiable Instruments Act would not be affected either as a matter of routine or automatically. However, these are all matters of evidence to be adduced by the parties before the Trial Court. Before coming to the conclusion as to the Application of Section 20 r/w Section 118 of the Negotiable Instruments Act, no wonder, the burden of proof should be applied in a proper manner.

(ii) S.Ponnusamy Vs. K.Mani [2015 (3) CTC 418], wherein at paragraph 10, it has been held as follows:

10. It is admitted that the signature found in the Cheque is that of the Respondent. The Respondent also admitted the execution of Promissory Note but only disputed the date and receipt of consideration stated therein. Once the signature is admitted, the presumption can be drawn under Section 118 of the Negotiable Instruments Act and it is for the respondent/accused to rebut the presumption, though it is well settled that the burden is not so heavy on the Respondent/Accused to prove the rebuttal presumption and it is sufficient if he is able to make out a probable case.

10. I have carefully perused all the materials available on record, the judgment and decree of the Courts below and considered the arguments advanced by the learned counsel appearing for the parties.

11. S.A.No.1463 of 2000 filed against the judgment and decree, dated 06.11.1998, made in A.S.No.134 of 1997, dismissing O.S.No.131 of 1994, is devoid of merits and no question of law, much less substantial question of law is raised. It is the case of the appellant that he executed two blank promissory notes on stamp papers and the first respondent filled up the same and filed two suits. In view of this admitted fact, the question of returning two blank promissory notes does not arise. The learned I Additional District Judge, Tirunelveli, appreciating the facts of the case, allowed A.S.No.134 of 1997, dismissing O.S.No.131 of 1994 filed by the appellant.

12. For the above reasons, S.A.No.1463 of 2000 is dismissed, as no substantial question of law arises. No costs.

S.A.Nos.1462 and 1464 of 2000:

13. The respondents 1 and 2 filed O.S.Nos.59 and 61 of 1993 for recovery of monies borrowed by the appellant. On 04.05.1991, the appellant borrowed a sum of Rs.30,000/- from the first respondent and executed Ex.B.1 Promissory Note. Similarly, the appellant borrowed a sum of Rs.17,000/- from the second respondent on 27.06.1991 and executed Ex.B.4 Promissory Note. The respondents examined themselves as D.Ws.1 and 2 and examined D.W.3 to prove their case. On the other hand, the appellant contended that he borrowed a sum of Rs.5,000/- in February 1991 from the first respondent and another sum of Rs.5,000/- in March 1991 and handed over two stamped blank promissory notes duly signed by him. He admitted his signature in Exs.B.1 and B.4 and they were marked as exhibits. Once the signatures in the promissory notes are admitted as per Section 20 of the Negotiable Instruments Act, the holder of instrument is authorised to fill up the blank promissory notes or fill up the incomplete portions. The consideration mentioned in the promissory notes are presumed to be paid to the appellant as per Section 118 of the Negotiable Instrument Act. The burden is cast on the appellant to rebut the said presumption. The appellant put forth a case that he borrowed a sum of Rs.10,000/- as evidenced by Ex.A.1 Promissory Note from one Ena Konar and repaid the same on 14.06.1991. The said promissory note was written by the first respondent and witnessed by him. The said contention was rejected by the learned I Additional District Judge on the ground that the said Ena Konar was not examined and that the appellant has not given any reason for not examining the said Ena Konar and that it is not the case of the appellant that the said Ena Konar directly paid the amount to the first respondent. It is the admitted case of the appellant that he received Rs.10,000/- from Ena Knonar and paid the same to the first respondent. The learned I Additional District Judge has given cogent and valid reasons for rejecting this contention of the appellant. In the second appeals, the appellant has contended that Ena Konar is close to the first respondent and the first respondent only introduced him to the appellant. This contention is an afterthought, as there is no material on record to show that the appellant took any steps to summon the said Ena Konar to depose on his behalf.

14. The next contention of the learned counsel for the appellant is that due to dispute with regard to management of Vinagayar Temple in Shanthi Nagar, where the appellant and the respondents are residing, the first respondent has filled up the blank promissory notes and filed false case. According to the appellant, the entire amount borrowed from the first respondent was repaid on 14.06.1991 and disputes arose during July 1991 between the first respondent and the appellant. But, the appellant has not taken any steps for recovery of two blank promissory notes till 27.08.1992, when he gave a complaint and on 28.08.1992, when he issued a notice to the first respondent. The learned I Additional District Judge, took note of these facts and the fact that the appellant took return of discharged promissory notes from Ena Konar, after discharging loan taken from him, rejected the contention that he gave two blank promissory notes to the first respondent and he did not return the same even after the appellant discharged the entire loan taken from the first respondent.

15. The learned I Additional District Judge has given cogent and valid reasons based on the facts and law for accepting the case of the respondents and rejecting the contentions of the appellant. The learned I Additional District Judge has properly appreciated the provisions of Sections 20 and 118 of the Negotiable Instruments Act. There is no error in law in the reasoning and conclusion of the learned I Additional District Judge. The substantial question of law is answered against the appellant.

16. In the result, these second appeals are dismissed as devoid of merits, setting aside the judgment and decree of the learned I Additional District Judge, Tirunelveli, dated 06.11.1998 and confirming the judgment and decree of the learned Principal Subordinate Judge, Tirunelveli, dated 28.02.1997. No costs. Consequently, connected miscellaneous petitions are closed.


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