IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: .09.2008 CORAM THE HON'BLE MR.JUSTICE V.PERIYA KARUPPIAH Second Appeal No. 601 and 602 of 2007 Nadanasapabathi ... Appellant in A.S.No.601 of 2007/ Appellant/Defendant Vs. Kaliaperumal .... Respondent in A.S.No.601 of 2007/ Respondent/Plaintiff Nadanasapabathi ... Appellant in A.S.No.602 of 2007/ Appellant/Defendant Vs. Kaliaperumal .... Respondent in A.S.No.602 of 2007/ Respondent/Plaintiff Second Appeals are filed against the common judgment and decree(s) dated 29.11.2005 made in A.S.Nos.53 and 54 of 2005 on the file of the learned Principal District Judge, Cuddalore confirming the common judgment and decree (s) dated 12.11.2001 made in O.S.Nos.77 of 1997 and 255 of 1996 respectively on the file of the learned Subordiante Judge, Panrutti. For Appellant : Mr.R.Subramanian in both appeals For Respondents : M/s.V.Raghavachari in both appeals for Mr.Brian JUDGMENT
The unsuccessful defendant in both the Original Suits is the Appellant in these second appeals.
2. Heard Mr.R.Subramanian, learned counsel for the Appellant and Mr.V.Raghavachari, learned counsel for the Respondent in both the appeals. The parties and the dispute between them in both the appeals are one and the same.
3. The Original Suit in O.S. No. 255 of 1995 was filed by the respondent against the appellant for recovery of a sum of Rs.34,000/- with interest due on a pronote dated 15.06.1994. The other Original Suit in O.S.No. 77 of 1997 was also filed by the very same respondent against the appellant for recovery of a sum of Rs.34,000/- with interest due on a pronote dated 29.06.1994. The respondent pleaded that the appellant failed to repay the dues despite repeated requests and as such he issued legal notice to the appellant demanding repayment on 29.03.1996 for which he issued a reply with false allegations. Hence, the suits.
4. The appellant denied his liability. No consideration was paid under the alleged pro-notes. The respondent had managed to create the pro-notes in question with the help of the signatures of the appellant obtained on a stamped blank papers, when he had requested the respondent to advance Rs.10,000/- in the last week of October, 1990. In fact , the respondent had lent only Rs.10,000/- that too in two different spell i.e., a sum of Rs.5,000/- on 02.11.1990 and another sum of Rs.5,000/- on 04.11.1990, whereas he had obtained the signatures of the appellant on 02.11.1990 itself on the stamped blank printed forms and subsequently fabricated the pro-notes. The appellant had paid off the entire dues and when he insisted to return those signed stamp papers, there was no response and the respondent had started demanding exorbitant rate of interest. The suits are liable to be dismissed.
5. Both the suits were tried jointly and after full fledged trial a common judgment was passed against the appellant directing to pay the amount due under the promissory notes as claimed in the suits. Aggrieved by that, the defendants preferred A.S.No. 53 and 54 of 2005 before the Principal District Judge, Cuddalore. The said appeals were also dismissed confirming the trial Court’s judgment. Hence, the present appeals are preferred by the defendants.
6. The learned counsel for the appellant would submit that both the Courts below had lost sight of the point that the plaintiff had miserably failed to prove the very execution of the promissory notes when the appellant/defendant had pleaded that the promissory notes were fabricated by the respondent/plaintiff and therefore there is a clear question of law to be decided as to whether the Courts below are right in decreeing the suit when the suit promissory notes were not established in accordance with law, while the defendants specifically pleaded that the promissory notes were fabricated by the respondent/plaintiff and whether the Courts below had gone wrong in relying upon the evidence of P.W.3, when his evidence was shown to be false through Ex.B.7?
7. The learned counsel for the respondent would submit in his argument that the Courts below have found categorically that respondent/plaintiff had proved the execution of promissory notes and it is for the appellant/defendant to disprove the same by showing that the promissory notes were fabricated. He would further submit that the appellant has no case since he had pleaded that he had put his signatures on the stamped printed blank forms and handed over the same to the plaintiff and now it is contended on his behalf that the signatures of the defendant were not proved before the trial Court by the respondent/plaintiff. He would also submit that the questions of law as suggested by the learned counsel for the appellant/defendant are not warranted since both the Courts below have decided concurrently with regard to the factual aspects and there is no question of law involved in the second appeal for consideration. Therefore, he would urge this Court for dismissal of the second appeal.
8. This Court has given anxious consideration on the arguments advanced on either side and also perused the judgments of the Courts below. This Court could understand that the suits were filed by the respondent for recovery of a sum of each Rs.34,000/- based on pro-notes dated 15.06.1994 and 29.06.1994 respectively. The defendant had taken a defence that the blank promissory notes signed and given to the respondent/plaintiff as security for the lesser sum borrowed by the appellant/defendant in an earlier occasion, were subsequently fabricated to be the suit promissory notes. Therefore, this Court could see that the signatures in the promissory notes were not virtually disputed by the appellant/defendant before the trial Court and such being the fact, now he cannot be allowed to advance any sort of argument on the point that the respondent/plaintiff had fabricated the signature of the defendant as found in the suit promissory notes. It is settled law that once the signature in the promissory note has been proved then, the presumption under Section 118 (g) of the Negotiable Instruments Act, would come into aid and it is for the defendant to prove the contrary. Therefore, this Court sees that both the Courts below are right in approaching the issue on the factual aspects and this Court cannot come to a different conclusion after admitting the second appeal since it is purely a question of fact. The question of law as suggested by the learned counsel for the appellant are not arising for consideration by this Court .
9. In the light of the discussions made above, the second appeal deserves no admission for want of question of law. Accordingly, the second appeals are dismissed confirming the decree and common judgment of both the Courts below. Consequently, connected Miscellaneous Petitions are also dismissed. However, there will be no costs.
.09.2008
Index :Yes
Internet :Yes
kmk
To
1. The Principal District Judge, Cuddalore.
2.The Subordinate Judge, Panrutti.
V.PERIYA KARUPPIAH, J.
Pre delivery judgment
in
S.A.Nos.601 & 602 of 2007
.09.2008