IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 02.06.2010
Coram
THE HONOURABLE MR. JUSTICE M. VENUGOPAL
C.R.P.(NPD)No.2299 of 2009
and M.P.No.1 of 2009
D.Rajendran ...Petitioner/Defendant
Vs.
M/s.Sumangali Finance Corporation,
Rep. by its Managing Partner,
L.M.Dakshinamoorthy,
S/o. Sivasankara Mudaliyar,
Pillaiyar Koil Street,
Kamatchi Amman Pettaiah,
Gudiyatham. ...Respondent/Plaintiff
Civil Revision Petition is filed under Section 115 of Civil Procedure Code to set aside the judgment and decree dated 22.10.2002 passed in A.S. No.3 of 2002 on the file of the Learned Subordinate Judge, Gudiyatham by setting aside the Judgment and decree dated 08.02.2002 passed in O.S.No.360 of 1999 on the file of the District Munsif, Gudiyatham.
For Petitioner : Ms.T.Jayalakshmi
for Mr.D.Rajagopal
For Respondent : Mr.T.Karunakaran
O R D E R
The Revision petitioner/respondent/defendant has filed this civil revision petition as against the judgment dated 22.10.2002 in A.S.No.3 of 2002 (O.S.No.360 of 1999) passed by the Learned Subordinate Judge, Gudiyatham.
2. The Learned Appellate Authority viz., the Learned Subordinate Judge, Gudiyatham in his judgment dated 22.10.2002 has among other things observed that as per Ex.A.2, Pro-note dated 28.2.1998 for Rs.15,000/-, the Revision Petitioner/Defendant has received the consideration and executed the Pro-note and therefore, the Revision Petitioner has to return the principal amount along with interest to the respondent/plaintiff and resultantly, allowed the Appeal filed by the Respondent/Plaintiff with costs and thereby decreed the suit filed by the Respondent/Plaintiff.
3. Dissatisfied by the judgment dated 22.10.2002 in A.S.No.3 of 2002 passed by the Learned Subordinate Judge, Gudiyatham, the Revision Petitioner/Defendant has projected this Civil Revision petition before this Court.
4. The point that arises for determination in this Civil Revision Petition is:
Whether the Revision petitioner/defendant has received a sum of Rs.15,000/- and executed Ex.A.2, Suit Pro-note in favour of the Respondent/Plaintiff on 28.2.1998?
5. Contentions, Discussions and Findings on Point No.1:
According to the learned counsel for the Revision petitioner/Defendant, the Learned Appellate Authority has committed an error in coming to the conclusion that there is no connection between Ex.B.1 and Ex.A.2 and further, that when the Revision Petitioner/Defendant has clearly deposed in his evidence that he paid the money and obtained the receipt, the Appellate Authority is not correct in disbelieving the receipt.
6. It is a further contention on the side of the Revision petitioner/Defendant that the Respondent/Plaintiff has not produced the register of the Plaintiff’s Company and this aspect of the matter has not been adverted to by the Appellate Authority in his Judgment in real perspective and therefore the Judgment of the Appellate Court passed in A.S.No.3 of 2002 is based on surmises and conjectures, which is liable to be set aside by this Court in the interest of justice.
7. In the plaint, the Respondent/partnership firm has averred that from it the Revision Petitioner/Defendant for his business borrowed a sum of Rs.15,000/- on 28.2.1998 promising to repay the same with interest thereon at 10 paise per Rs.100/- per day i.e. at 36% per annum and executed the Suit Pro-note. The Respondent/Plaintiff made repeated demands to the Revision Petitioner/Defendant requiring him to re-pay the amount borrowed and also, a Registered notice dated 28.2.1998 has been issued to the Revision Petitioner/Defendant by the Respondent/Plaintiff, which has been returned as unserved. Therefore, the Respondent/Plaintiff has filed a suit for recovery of a sum of Rs.21,150/- together with future interest and costs.
8. The stand of the Revision Petitioner/Defendant is that he was having dealing with the Respondent/Plaintiff for more than 15 years and he used to borrow amount from the Respondent/Plaintiff and the Respondent/Plaintiff used to take blank Pro-note and they used to give receipt at the time of paying the amount and that the Respondent/Plaintiff will not return the blank Pro-note and they used to say that they will destroy the Pro-note and believing the words of the Respondent/Plaintiff, the Revision Petitioner has not insisted for the return of the Pro-note.
9. Added further, it is the plea of the Revision Petitioner/Defendant that after the year 1993, the Respondent/Plaintiff’s firm has not lent any amount to anyone and they only collected the amount due and the firm transactions were stopped and the Revision Petitioner/Defendant has been in due for a sum of Rs.15,000/- under B.L.Loan No.152 for which, he paid a sum of Rs.15,465/- on 31.1.1998 and satisfied the said loan for which the respondent/Plaintiff issued a receipt on 21.1.1998.
10. It is the further stand of the Revision Petitioner/Defendant that when he asked for the return of the blank Pro-note, the Respondent/Plaintiff informed that the said Pro-note has been misplaced and since the receipt has been issued, he need not worry for the same and in trusting the words of the respondent/plaintiff and in good faith, the Revision petitioner has not insisted for the return of the Pro-note.
11. The main contention of the Revision Petitioner/Defendant is that he has not borrowed any sum on 28.2.1998 and further, he has not executed any Pro-note on 28.2.1998 and that no transaction has taken place on 28.2.1998 and also that no amount has been paid.
12. It is the evidence of P.W.1(Managing Partner of the Respondent/Plaintiff) that the Revision Petitioner/Defendant on 28.2.1998 received a sum of Rs.15,000/- and executed Ex.A.2, Pro-note and that the Revision Petitioner/Defendant has not returned the money and therefore, Ex.A.3, Lawyer’s Notice dated 22.10.1998 has been issued to the Revision Petitioner/Defendant and that the Revision Petitioner/Defendant has not received the same and the returned cover is Ex.A.4.
13. It is the further evidence of P.W.1 that he has returned Ex.A.2 Pro-note dated 28.2.1998 and that the signature found over the stamp in Ex.A.2 and another signature are that of the Revision Petitioner/Defendant and that the Revision Petitioner/Defendant is running a lorry and doing business.
14. P.W.1 in his cross-examination has stated that Ex.B.1 is the receipt relating to the prior loan being discharged and that in another suit, the Respondent/Plaintiff Company’s Account Book, Day Book and Bill Book have been filed.
15. D.W.1(Revision Petitioner/Defendant) in his evidence has deposed that he has not received any amount from the Respondent/Plaintiff on 28.2.1998 and that in the year 1993, he has availed the loan from the Respondent/Plaintiff and therefore, the Respondent/Plaintiff’s Firm has not functioned in the year 1997 and he has not signed in the unfilled bond and that on numerous occasions, he has received loan from the Respondent/Plaintiff and has repaid the same.
16. D.W.1 in his further evidence has stated that the signature seen on the stamp of Ex.A.2 belongs to him and that he has received a sum of Rs.15,000/- during the year 1993 for which, he has paid the interest and that he has repaid the said loan amount and that the receipt has been given by the Respondent/Plaintiff. In Ex.B.1, the interest and principal have been paid together and on 22.8.1998 he has not received any loan from the Respondent/Plaintiff’s firm.
17. D.W.1 in his evidence has further stated that during the year 1997, the respondent/plaintiff has not functioned and in the place where the Respondent/Plaintiff functioned in the year 1998, another finance Company has been functioning.
18. The evidence of D.W.1 in the Cross-examination is to the effect that he is owning four lorries and in connection with the maintenance of the lorries for urgent needs, he used to receive money from the Finance and in that manner for a long time he has obtained the loan from the Respondent/Plaintiff.
19. D.W.2 in his evidence has stated that the Respondent/Plaintiff’s firm is functioning in his place for 20 years and in the year 1997 the Respondent/Plaintiff has vacated the firm and thereafter, Jaya Bharathi finance is functioning there and in the year 1998, he has sold his place. And therefore, during the year 1998, the Respondent/Plaintiff is not there.
20. Ex.A.2 is the Suit Pro-note for Rs.15,000/- dated 28.2.1998 in favour of the Respondent/Plaintiff’s Managing Partner executed by one T.D.Rajendran.
21. Ex.A.3 is the Lawyer’s notice issued on behalf of the Respondent/Plaintiff addressed to the Revision Petitioner/Defendant in and by which the demand has been made on the Revision Petitioner/Defendant to pay the principal sum of Rs.15,000/- together with interest thereon at 10 paise per day per Rs.100/- as security for due payment of the amounts due, etc.
22. Ex.A.4 is the returned cover of Ex.A.3, Lawyer’s notice addressed to the Revision Petitioner/Defendant. A perusal of Ex.A.4 returned cover shows that the same has not been claimed by the Revision petitioner /Defendant.
23. Ex.B.1 is the Cash Receipt of the Respondent/Plaintiff’s Company dated 31.1.1998 issued to the Revision Petitioner/Defendant. In this, the Loan No. is mentioned as 152 and the instalment is mentioned as E.L. and the amount is mentioned as Rs.15,000/-. The interest for the period from 31.12.1997 to 31.1.1998 has been mentioned as Rs.465/-. In short, Ex.B.1, the receipt is for Rs.15,465/-.
24. However, a perusal of Ex.B.1, Cash Receipt of the Respondent/Plaintiff’s Company indicates that in the date column, the date is originally mentioned as 31.3.1998. Later, over the figure 3, 1 has been over-written. Likewise, even in the interest column, originally, it is mentioned as 31.12.1998 and later over the year 1998, 1997 has been written in thick form. Even though there are over-writings as referred to supra in Ex.B.1, Cash Receipt, a perusal of the same with that of Ex.A.2 Pro-note dated 28.2.1998 shows that Ex.B.1 has nothing to do with Ex.A.2 Pro-note. In this connection, this Court pertinently points out that if Ex.B.1, Cash Receipt received for a sum of Rs.15,465/- is for the loan taken by the Revision Petitioner/Defendant in the year 1993, then the Respondent/Plaintiff ought to have calculated more money than a sum of Rs.15,465/- and in this manner, the said amount has not been paid and therefore, the contention of the Revision Petitioner/Defendant that the sum of Rs.15,465/- as mentioned in Ex.B.1, Cash Receipt represents the principal and interest for the loan taken by him in the year 1993 is not accepted by this Court.
25. Also as per Section 20 of the Negotiable Instruments Act, an individual, who signed a blank stamp paper relating to Negotiable Instruments Act is made liable upon such instrument in the capacity in which he signed it to any holder in due course as per the decision in PUNJAB AND SINDH BANK V. RAM PARKASH JAGDISH CHANDER {(1991) 70 Comp. Cases 20 (Delhi)}.
26. Indeed, on a scrutiny of Section 20 of the Negotiable Instrument Act shows that an implied Authority is given to the holder of the cheque at the time of entrusting blank cheque containing the signature of the drawer of the cheque alone, to fill up the columns therein. To prevent an aberration of justice, this Court points out that if the columns are filled up specifying date and amount by words and figures, it will not amount to any offence much less the offence punishable under Sections 468 and 471 of the Indian Penal Code as per decision in CHINTHALA CHERUVU V. STATE 2007 (1) BANKMANN 546.
27. As far as the present case is concerned, upon consideration of oral and documentary evidence available on record and on taking note of the facts and circumstances of the case in an integral fashion, this Court comes to an inevitable conclusion that Ex.B.1, Cash Receipt has no connection whatsoever with Ex.A.2, Pro-note dated 28.2.1998 and further Ex.A.2, Pro-note dated 28.2.1998 has been executed by the Revision Petitioner/Plaintiff after receiving a sum of Rs.15,000/- and as per Section 20 of the Negotiable Instruments Act, the Respondent/Plaintiff is entitled to fill up the date and amount by words and figures and the point is answered against the Revision Petitioner/Defendant.
28. In the result, the Civil Revision Petition is dismissed leaving the parties to bear their own costs. Resultantly, the Judgment and Decree of the Learned Subordinate Judge, Gudiyatham passed in A.S.No.3 of 2002 dated 22.10.2002 are affirmed by this Court for the reasons assigned in this Revision. Consequently, connected M.P.No.1 of 2009 is closed.
2.06.2010
Index:Yes/No
Internet:Yes/No
cla
To
1. The District Munsif,
Gudiyatham.
2. The Subordinate Judge,
Gudiyatham.
M.VENUGOPAL.J,
cla
Pre-delivery order in
C.R.P.(NPD)No.2299 of 2009
and M.P.No.1 of 2009
2.06.2010