In the High Court of Judicature at Madras
Dated:26.02.2007
Coram
The Honourable Mr.Justice A.C.ARUMUGAPERUMAL ADITYAN
Second Appeal No.254 OF 1997
Subramaniyan ..Appellant
vs.
Dhayalan ..Respondent
This second appeal is filed against the judgment and
decree dated 27.10.1994 made in A.S.No.105 of 1990 on the
file of the Court of Subordinate Judge, Tindivanam
confirming the decree and Judgment in O.S.No.88 of 1989
dated 31.10.1990 on the file of the Court of District
Munsif, Gingee.
For Appellant : Mr.S.Bharathkumar
for Mr.V.S.Jagadeesan
For Respondent : Mr.T.Dhanasekaran
for Mr.N.Maninarayanan
---
JUDGMENT
This appeal has been preferred against the Judgment and
decree in A.S.No.105 of 1990 on the file of the Court of
Subordinate Judge, Tindivanam. The defendant, who has lost
his defence before the Courts below, is the appellant
herein. The suit is for money under Ex A1 promissory note.
2. The averments in the plaint for the purpose of
deciding this appeal sans irrelevant particulars are as
follows:
The defendant has executed a suit promissory note for
Rs.10,000/- for a valuable consideration on 14.11.1988 at
Mettuvailamur Village. In spite of repeated demands for
the return of the above said debt amount, the defendant has
not repaid the same. Hence the plaintiff has issued a suit
notice on 2.2.1989. The defendant had sent an earlier
notice dated 27.1.1989 only to defraud the amount advanced
by the plaintiff under the promissory note . The defendant
has not sent any reply to the suit notice. The averment in
the notice issued by the defendant dated 27.1.1989 are all
false. The allegation that the suit promissory note was
executed by the defendant on behalf of his brother-in-law
Chellaperumal in connection with the land purchased by
Chellapperumal(D.W.2) and thereafter a release deed was
executed by Anandayeeammal, after receiving the amount
towards her share are all not admitted by the plaintiff.
The allegation that the suit promissory note has been
discharged in lieu of the execution of the release deed is
not true. There is no connection between the said release
deed and the suit promissory note because the defendant
himself has admitted that one week prior to 14.11.1988 ie.,
the issuance of notice, the suit promissory note was
executed in favour of the plaintiff. The fact that the suit
promissory note was executed on 14.11.1988 itself will go to
show that there is no connection between the suit debt and
the sale of above said lands in favour of Chellaperumal, the
brother-in-law of the defendant. If the suit debt is
discharged after the executiion of the release deed, then
the defendant would have got back the suit promissory note
from the plaintiff. There is no endorsement made by the
defendant on the promissory note in lieu of the discharge of
the suit debt. The above said Rajamanickam also died under
suspicious circumstances. Hence the plaintiff has preferred
a complaint againat the defendant and his brother-in-law
Chellaperumal on account of that there was an enmity
prevailing between the plaintiff and the defendant and only
to defraud the plaintiff, the defendant had sent a notice
dated 27.1.1989. The defendant after receiving the valuable
consideration under Ex A1 had executed a suit promissory
note. The defendant is liable to pay 9% interest for the
suit debt, since he is an agriculturist. Hence the suit.
3. The defenant in his written statement would contend
that the defendant has not received any amount under the
suit promissory note dated 14.11.1988. The suit promissory
note is not supported by consideration. The averment in the
plaint that the defendant had borrowed Rs 10,000/- from the
plaintiff in order to purchase bullock cart is not true.
On 14.11.1988, no consideration passed under the suit
promissory note only under the following circumstances, the
suit promissory note came into existence. The plaintiff’s
mother-in-law Anandayeeammal had a brother by name
Rajamanickam. The defendant’s brother-in-law viz.,
Chellaperumal entered into an agreement of sale in favour of
the said Rajamanickam in respect of the land in Konamangalam
Village for a sale consideration of Rs.29,500/-. In
pursuance of the said sale agreement , a registered sale
deed was executed on 28.10.1988. After the executiion of the
sale deed, the plaintiff’s mother-in-law Anandayeeammal
claiming that she is entitled to a share in the land
purchased by Rajamanickam, threatened Chellaperumal, the
vendee in order to extract money from him and only to
create document, she took her brother Rajamanicka Gounder
also to Mettuvailamur Village and approached the defendant
in the presence of mediators. There was a mediation took
place on 14.11.1988 in the presence of panchayatars and
also in the presence of Anandayeeammal. In the panchayat,
the panchayatars have decided and directed Chellaperumal to
pay Rs.11,000/- to Anandayeeammal and that Anandayeeammal
after receiving the said amount,executed a release deed in
favour of Chellaperumal. On the date of compromise, ie.,
14.11.1988, Chellaperumal had only Rs.4,000/- which he
handed over to Anandayeeammal and in respect of the balance
amount, the maternal uncle of Chellaperumal viz., the
defendant came forward to execute the promissory note for
Rs.10,000/- as a guarantor. The plaintiff has also agreed
to the said course. Only under such circumstances, the
defendant had executed the suit promissory note in favour of
the plaintiff. Later, the brother-in-law of the defendant,
viz., Chellaperumal proceeded to Konamangalam with the
balance amount of Rs.7,000/- and handed over the same to
Anandayeeammal and also obtained a release deed from her as
agreed to between the parties before the Panchayatars. When
the defendant asked Anandayeeammal to return the suit
promissory note,she gave some lame excuse for the return of
the same . The defendant waited for nearly two months and
thereafter issued a notice on 27.1.1989 to Anandayeeammal to
direct the plaintiff to return the suit promissory note.
The plaintiff had sent a reply raising false contentions and
only to get wrongful gain, the suit has been filed by the
plaintiff. The defendant is not liable to pay any amount
under the suit promissory note. The plaintiff has not
stated in the suit notice that the suit promissory note was
executed one week prior to the date of mediation ie., on
14.11.1988. Only at the instance of Anandayeeammal, the suit
promissory note was executed by the defendant in favour of
the plaintiff. This fact was also stated in the notice
issued by the defendant to the plaintiff. Anandayeeammal is
also a necessary party to the suit. Hence the suit is liable
to be dismissed.
4. On the above pleadings, the learned trial Judge
has framed three issues for trial. The plaintiff has
examined himself as P.W.1 and exhibited Exs A1 and A2. The
first defendant has examined himself as D.W.1 besides
examining another witness as D.W.2.(it is wrongly mentioned
in the printed copy of the judgment of the trial Court and
also in the fair copy of the Judgment that no witness was
examined on the side of the defendant). Ex B1 notice dated
27.1.1989 was marked on the side of the defendant.
5. After considering both the oral and documentary
evidence let in before the trial Court, the learned trial
Judge has come to a conclusion that the plaintiff is
entitled to the relief asked for in the plaint and
consequently, decreed the suit with costs as prayed for,
giving six months time to the defendant to discharge the
suit amount. Aggrieved by the Judgement of the learned
trial Judge, the defendant has preferred an appeal in
A.S.No.105 of 1990 before the Subordinate Judge,
Tindivanam. The learned first appellate Judge has also
dismissed the appeal thereby confirming the decree and
Judgment of the learned trial Judge. The learned first
appellate Judge also dismissed I.A.No.98 of 1992 filed by
the defendant to receive the additional documents. Against
the findings of the learned first appellate Judge, the
defendant has preferred this second appeal.
6. The substantial questions of law involved in this
appeal are
” 1. Whether the Courts below are right
in dismissing I.A.No.98 of 1992 in
A.S.No.105 of 1990.I.A.No.98/1992 was
filed by the appellant to receive the
release deed and sale deed as additional
documents?
2. Whether the Courts below have given
importance to the admission made on
behalf of the respondent regarding the
release deed etc.,?
3. Whether the Courts below have
considered the aspecpt of burden of
proof correctly?
7. Heard Mr.S.Bharathkumar, learned counsel appearing
for the appellant and Mr.T.Dhanasekaran, learned counsel
appearing for the respondent and considered their respective
submissions.
8.The Points:
The entire case of the appeal revolves on Ex B1 notice
dated 27.1.1989 sent to the plaintiff Dhayalan and his
mother-in-law Anandayeeammal. Accoding to the defendant, Ex
A1 promissory Note was not supported by consideration, but
the same was executed by him, as a guarantor for his brother-
in-law Chellaperumal, who had purchased the land from one
Rajamanickam,the brother of Anandayeeammal in Survey
Nos.158/2,167/2,166,200/7C,167/4, and Natham Survey No.196
in Konamangalam Village and that a registered sale deed was
executed by Chellaperumal in favour of
Rajamanickam for a sale consideration of Rs.25,500/-.
Subsequent to the execution of the sale deed,
Anandayeeammal, the sister of Rajamanickam went to
Konamangalam Village and threatened Chellaperumal claiming
that she is also having a share in the properties sold to
him under the sale deed dated 28.10.1988. In connection with
this, a panchayat was held at Mettuvailamur Village in the
presence of panchayatars wherein it has been decided by the
panchayatars that Chellaperumal has to pay a sum of
Rs.11,000/- to Anandayeeammal and after receiving the said
amount, the said Anandayeeammal had to execute a release
deed and that since Chellaperunmal had only Rs.4,000/-, he
paid the same to Anandayeeammal and for the balance of
Rs.7,000/- , he had agreed to pay the same within one or
two weeks and only as a guarantor, the suit promissory note
for Rs.10,000/- was executed by the defendant for
Chellaperumal in favour of the plaintiff Dhayalan.
9. The other part of the defence by the defendant is
that on 14.11.1988 itself in the presence of witnesses, the
said Chellaperumal had paid the balance of Rs.7,000/- to
Anandayeeammal and got the release deed from her in respect
of her claim over the properties sold in favour of
Rajamanickam by Chellaperumal. But the said release deed
was not produced before the trial Court. Only before the
first appellate Court, the said document was filed along
with I.A.No.98 of 1992. But the learned first appellate
Judge has dismissed I.A.No.98 of 1992 on the ground that EX
A1 was executed for Rs.10,000/- and there was no sufficient
reason given by the petitioner for non productiion of the
said document before the trial Court to mark the same by
examining the relevant witness. Further the said document
was not a registered one. The defendant has also not
examined Anandayeeammal before the trial Court to prove the
said release deed. Further if the release deed is true and
genuine, then immediately the defendant would have issued
notice to the plaintiff demanding the return of Ex A1
promissory Note. Ex B1 notice is dated 27.1.1989 . There is
no acceptable reasoning given in Ex B1 notice for the delay
in sending Ex B1 even after the execution of the alleged
release deed dated 14.11.1988. If the payment of Rs.7,000/-
to Anandayeeammal by Chellaperumal was true then the
defendant ought to have issued notice to Chellaperumal and
also for return of the promissory note by the plaintiff.
Under such circumstances, the findings of the learned first
appellate Court regarding the dismissal of I.A.No.98/1992
does not require any interference from this Court.
10. If we come to Ex A1 promissory note, the defendant
has admitted in Ex B1 notice itself that only for a sum of
Rs.7,000/-,
Ex A1 was executed by him in favour of Dhayalan as a
guarantor for the amount to be paid by his brother-in-law
Chellaperumal in favour of the plaintiff. The plaintiff as
P.W1 would also admit Ex B1 notice. Nodoubt under Section
118 of the Negotiable Instruments Act,the presumption under
Ex A1 is that it was executed for a valuable consideration
but under Section 118(g) of the Negotiable Instruments Act ,
it is only a rebuttal presumption, if the defendant is able
to prove that a fraud has been played upon in executing the
promissory note then the earlier presumption under Section
118 Negotiable Instruments Act cannot be sustainable.
Section 118(g) of the said Act runs as follows:
” That holder is a holder in due course-
that the holder of a negotiable
instruments is a holder in due course,
provided that where the instrument has
been contained from its lawful owner, or
from any person in lawful custody there
of, by means of an offence or fraud or
has been obtained from the maker or
acceptor thereof by reasons of an
offence or fraud, or for unlawful
consideration, the burden of proving
that the holder is a holder in due
course lies upon him.”
11. A mere reading of recitals in ExA1 promissory note
will go to show that no consideration was passed on the date
of execution of EX A1 promissory note. The exact recitals in
Ex A1 runs as follows:
“VERNACULAR (TAMIL) PORTION DELETED”
From the evidence of D.W.2, it is clear that under Ex A1,
only a sum of Rs.7,000/- was passed towards consideration.
D.W.2 is Chellaperumal. Only for him, the defendant had
executed EX A1 in favour of the plaintiff for the said
amount. D.W.2 is liable to pay the amount to Anandayeeammal
in respect of the land purchased by him from Rajamanickam,
the brother of Anandayeeammal. But D.W.2 would depose that
he repaid the said amount of Rs.7,000/- to Anandayeeammal
and obtained a release deed. But on the date of
examination before the trial Court, D.W.2 has not produced
the said release deed. So under such circumstances, the
inference will be that EX A1 is valid for a sale
consideration of Rs.7,000/- and there was no release deed
executed by Anandayeeammal in favour of D.W.2 Chellaperumal
in discharge of the debt under Ex A1. Under such
circumstances, I am of the view that the Courts below have
erred in decreeing the suit for Rs.10,000/- with future
interest under Ex A1 because in my opinion Ex A1 is valid
only for Rs.7,000/-. Under such circumstances, this Court is
necessarily to inferfere with the findings of the learned
trial Judge in respect of the amount as indiciated above.
The points are answered accordingly.
12. In fine, the appeal is allowed in part and decree
and Judgment of the first appellate Court in A.S.No.105 of
1990 on the file of the Court of Subordinate Judge,
Tindivanam,is set aside and the suit is decreed for Rs
.7,000/- with 9% interest per annum from the date of the
suit till the date of decree and with future interest at
the rate of 6% per annum from the date of decree till the
date of realisation on the principle amount with
proportionate costs. Time for payment two months.
sg
To
1. The Subordinate Judge, Tindivanam.
2. The District Munsif,
Gingee