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Madras High CourtSA/375/2019dismissed

Suriyamoorthy v. Prakash

2019-03-06Honourable Mr Justice V. Bharathidasan3 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 06.03.2019

CORAM

THE HONOURABLE MR. JUSTICE V.BHARATHIDASAN S.A. 375 of 2019 Suriyamoorthy ...Appellant/Appellant/Plaintiff Vs

1. Prakash

2. Kamalaveni

...Respondents/Respondents/defendants

Prayer: The Second Appeal is filed under Section 100 of CPC, against the Judgment and decree dated 17.07.2018 made in A.S. No.22 of 2017 on the file of the Additional District Judge (Fast Track Court), Villupuram confirming the Judgment and Decree dated 14.12.2016 made in O.S. No.215 of 2014 on the file of the I Additional Subordinate Judge, Villupuram.

For Appellants : Mr.C.Munusamy JUDGEMENT The plaintiff, who has lost the suit before both the courts below has filed the present Second Appeal.

2. The plaintiff has filed a suit for recovery of a sum of Rs.2,51,933/- on promissory note. The case of the Plaintiff is that the defendants have borrowed a sum of Rs.2,00,000/- on 05.06.2011 and executed a promissory note in favour of the Plaintiff. When the plaintiff demanded money, they refused to pay the same. In the above circumstances, the Plaintiff has filed the suit for recovery of money.

3. The defendants have contested the suit denying the borrowal of Rs.2,00,000/- and also the execution of promissory note in favour of Plaintiff. However, they have admitted that the plaintiff is being a money lender in the year 2011, the defendants have borrowed a sum of Rs.60,000/- from the plaintiff and executed a promissory note in favour of plaintiff's wife and also executed a sale agreement in his favour, and he has been continued to pay the interest. However, the plaintiff has issued a legal notice on 05.11.2012, seeking for recovery of money, and

the defendants have also settled the amount in the year 2014. Thereafter, the Plaintiff has created a present suit promissory note, and forged his signature and filed the present Suit.

4. The Trial Court after perusing the materials and the evidences on record has dismissed the suit, holding that when the defendants have disputed the suit promissory note, it is for the Plaintiff to prove the signature in the promissory note. But, he has not taken any steps to prove the signature of the defendants, the attestors are being brother and employee and they are only interested witness in this case. Apart from that, the defendants have examined the advocate, who has issued the legal notice in the year 2012, in the name of wife of plaintiff. The advocate also categorically stated that he has issued the legal notice only on the instructions of plaintiff and issued notice in the name of his wife, and he has not issued any notice on behalf of plaintiff.

5. Feeling aggrieved with the same, the plaintiff has filed an appeal in A.S.No. 22 of 2017, on the file of Addl. District Judge (Fast Track Court), Villupuram, and the lower Appellate Court after considering the entire materials available on record has held that the plaintiff has failed to prove the promissory note and dismissed the Appeal. Aggrieved over the judgment and decree passed by the lower appellate court, the present Second Appeal has been filed.

6. I have considered the submissions made by the learned counsel appearing for the appellant and perused the materials available on record carefully.

7. This is a Suit on promissory note. The defendants have contested the suit denying the execution of the promissory note, and contended that, it has been forged by the plaintiff. In the above circumstances, the burden is on the plaintiff to prove that the signature found in the promissory note is that of the defendants, but the plaintiff has not taken any steps. That apart, it is the case of the defendants that, admittedly, they have borrowed a sum of Rs.60,000/- from the wife of plaintiff and that amount was subsequently settled. They have also examined advocate, who has issued a legal notice to D.W.2, wherein he has categorically stated that on the instructions of plaintiff, he has issued the legal notice only in the name of plaintiff's wife and he has not issued any notice on behalf of plaintiff.

That apart, admittedly, earlier, there was a dispute between them and it has been settled between the parties in the police station. In the above circumstances, it cannot be believed that, after such a dispute, once again, the plaintiff has given another sum of Rs.2,00,000/- to the defendants.

8. Considering all the materials on facts, both the courts below have concurrently held that the plaintiff has failed to prove the promissory note and dismissed the Suit, and I do not find any perversity and illegality in the judgment and decree passed by the courts below. I do not find any substantial question of law arises for considering the present Second Appeal. In the result, the present Second Appeal stands dismissed. No costs.

Sd/- Asst.Registrar (CS II ) /true copy/ Sub Asst. Registrar rpp To 1.The Addl. District Judge (Fast Track Court), Villupuram.

2.The I Additional Subordinate Judge, Villupuram +1 cc to Mr.C.Munusamy Advocate sr 21063 S.A. 375 of 2019 rsk(co) aa06/03/2019