S.Kanakarathinam v. T.Santhi

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated: 22.12.2016 Coram:

The Honourable Mr.Justice M.M.SUNDRESH S.A.No.243 of 2015 S.Kanakarathinam ... Appellant/Appellant/Plaintiff Vs.

T.Shanthi ... Respondent/Respondent/Defendant Second Appeal is filed under Section 100 C.P.C., to set aside the judgment and decree dated 27.08.2014 made in A.S.No.91 of 2012 on the file of Sub Court, Namakkal, confirming the judgment and decree dated 25.01.2012 made in O.S.No.2 of 2007 on the file of Additional District Munsif Court, Namakkal.

For Appellant :

Mr.C.Jagadish For respondent : Mr.V.Raghavachari

JUDGMENT

The plaintiff in the suit for recovery of money in a promissory note is the appellant herein. Being aggrieved over the concurrent findings rendered by the Courts below, he has filed the above second appeal.

2. It is a specific case of the plaintiff that the suit promissory note has been executed by the defendant for a valuable consideration.

Thus, there exists a legally enforceable debt. The defendant in a written statement denied the execution. Incidentally, she has stated that the suit promissory note has been created. By way of defence, she has stated that there was a transaction between her and some other third party and the plaintiff being an employee of those persons would have probably misused. The trial Court primarily relying upon the evidence of P.Ws.1 to 3 dismissed the suit. It is further held that the presumption under Section 118 of the Negotiable Instruments Act would not arise since the signature has not been proved. The lower appellate Court has concurred

with the findings of the trial Court once again relying upon the evidence of P.Ws.1 to 3. Challenging the same, the present second appeal has been filed.

3. This Court, while admitting the second appeal, framed the following substantial questions of law.

1. Whether the Courts below are right in law in dismissing the suit particularly when the defendant has admitted the execution of the promissory note ExA1 in the written statement and failed to discharge the burden of proof as contemplated under Section 118 of the Negotiable Instruments Act and Sections 101 to 103 of the Indian Evidence Act?

2. Whether the Courts below have properly appreciated Section 118 of the Negotiable Instruments Act read with Sections 101 to 103 of the Indian Evidence Act while dismissing the suit particularly when the defendant has admitted execution of the promissory note?

4. The learned counsel appearing for the appellant submits that the execution having been admitted, the consequence would follow. Therefore, the judgment rendered by the Court below would require interference.

5.

The learned counsel appearing for the respondent/defendant submits that the Courts below have dismissed the suit placing reliance upon the evidence of P.Ws.1 to 3. In a suit filed based upon promissory note, it is for the plaintiff to prove the case. Hence, no interference is required.

6. A perusal of the written statement filed would show that the defendant has denied the execution of the suit promissory note. On the contrary, her specific case is that the signature made in favour of the third parties has been misused by the plaintiff being their employee. P.W.1 in his evidence states that he do not know the address of the defendant. The plaintiff is residing at Namakkal, whereas the defendant is residing at Thiruvannamalai. P.W.2, who is the attestor of the suit promissory note has deposed that he does not know the facts of the proof affidavit. P.W.3, who stood as the scribe to Ex.A1, states that the details stated in the proof affidavit have not been stated by him. Thus, the Courts below, placing reliance upon the abovesaid evidence, have rightly dismissed the suit. It is not as if the presumption would arise in the case on hand as the defendant did not admit the execution of the promissory note. There is a signature in Ex.A1-suit promissory note but its execution has not been admitted by the defendant. As the

concurrent findings do not suffer from any impropriety or perversity, no interference is required since no questions of law arise for consideration in this appeal. Accordingly, the second appeal stands dismissed. No costs.

Sd/- Assistant Registrar(CS V) //True Copy// Sub Assistant Registrar raa To 1.The Subordinate Judge, Namakkal.

2.The Additional District Munsif, Namakkal.

+1cc to Mr.C.Jagadish, Advocate Sr.75937 +1cc to Mr.V.Raghavachari, Advocate Sr.75974 S.A.No.243 of 2015 nrjk[co] srg 13/2/2017