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Madras High CourtSA(MD)/366/2017dismissed

Bagavathi, v. Alagu,

2017-08-22Honourable Mrs Justice Pushpa Sathyanarayana3 pages

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 22.08.2017

CORAM

THE HONOURABLE MRS.JUSTICE PUSHPA SATHYANARAYANA SECOND APPEAL (MD) No.366 of 2017 Bagavathi ... Appellant / Appellant / Plaintiff Vs.

Alagu ... Respondent/ Respondent / Defendant PRAYER: Appeal filed under Section 100 of C.P.C., against the judgment and decree, dated 20.07.2011, made in A.S.No.52 of 2010 by the learned the Principal District Judge, Dindigul, confirming the judgment and decree, dated 24.06.2010, made in O.S.No.335 of 2004 by the learned Principal Subordinate Judge, Dindigul. For appellant ... Mr.N.Sathish Babu For respondent .... Mr.A.Hariharan

JUDGMENT

The unsuccessful plaintiff in a suit for recovery of money based on a promissory note is the appellant. The plaintiff has made her claim based on the promissory note, dated 07.09.2002, alleging that the defendant has borrowed a sum of Rs.1,20,000/- from the plaintiff and executed a promissory note agreeing to repay the amount with interest at the rate of 12% per annum. Despite the repeated demands, the defendant failed to pay money. Hence, after causing pre-suit notice, dated 04.11.2004, the suit has been filed for recovery of money.

2.Denying the execution of the promissory note, dated 07.09.2002, the defendant had stated that he had been having transactions with the husband of the plaintiff and during one such transaction, the defendant had borrowed a sum of Rs.1,00,000/- from the plaintiff's husband agreeing to repay the same with interest at 12% per annum. At that point of time, the defendant had given four green stamped signed blank papers to the husband of the plaintiff and the husband of the plaintiff had filled up the same to the tune of Rs.1,20,000/- in favour of the plaintiff and the other papers were filled up in favour of the plaintiff's sonin-law and the plaintiff's husband. Though the said act was objected to by the defendant, the plaintiff's husband had promised

to repay the documents on repayment of the amount. A complaint was also lodged to the Superintendent of Police, Dindigul, alleging that the plaintiff's husband has been advancing loan for exorbitant interest. Thus, he prayed for dismissal of the suit. 3.On the above said pleadings, after considering the oral and documentary evidence, the trial Court as well as the first appellate Court, dismissed the suit holding that the plaintiff has not proved the execution of Ex.A1. Aggrieved by the same, the above second appeal has been filed by the plaintiff. 4.Heard the learned counsel for the appellant and the learned counsel for the respondent.

5.The defendant had categorically pleaded in the written statement that Ex.A1 was not executed by him and that he had never borrowed any amount from the plaintiff based on Ex.A1. The defendant had borrowed money only from the husband of the plaintiff to the tune of Rs.1,00,000/- and had given four green stamped signed blank papers. One of the said blank papers had been used by the plaintiff's husband to fill up the name of his wife to the tune of Rs.1,20,000/- and the present suit was filed based on the same.

6. It is specific case of the defendant that he never borrowed any amount from the plaintiff and the suit promissory note was not executed by him in her favour. In this regard, the plaintiff, who was examined as PW1, had deposed that it is only her husband, who has instructed her to issue a lawyer notice and paid the Court fee for filing the suit. She has further admitted that she has got no independent income. Further, PW1 also was unable to identify the signature of the defendant. When Ex.A1 was showed to her, she has categorically stated that the signature found in Ex.A1 was not that of the defendant. As the plaintiff herself denied the signature of the defendant on the suit promissory note, the Courts below had drawn inference that the plaintiff was not at all present at the time of the alleged execution of the promissory note and dismissed the suit.

7. The defendant, who was examined as DW1, has admitted his signature on Ex.A1. Even presuming that the initial burden of proof of execution of the promissory note is deemed to be discharged, the onus shifts on the defendant to prove that the said Ex.A1 is not supported by valid consideration. As stated above, the plaintiff herself has admitted that she has got no separate income and that she did not even recognize the signature of the defendant on Ex.A1, which would go to show that she was not available at the time of execution of Ex.A1 by the defendant. When the plaintiff herself was not available at the time of execution of the promissory note, it cannot be presumed that she would have paid money to the

defendant on the promissory note. Thus, the defendant has discharged the onus that was shifted on him by establishing that he had not borrowed any money on the suit promissory note from the plaintiff. Thus, having failed in her attempt in proving the promissory note, the plaintiff had lost the suit. The Courts below below have rightly non-suited the plaintiff. On the above facts, there is no question of law arising for consideration.

8. In the result, this second appeal fails and the same is, accordingly, dismissed, confirming the judgment and decree passed by the Courts below. No costs.

Sd/- Assistant Registrar(CS-III) /True Copy/ Sub Assistant Registrar To

1. The Principal District Judge, Dindigul.

2. The Principal Subordinate Judge, Dindigul.

+1cc to Mr.N.Sathish Babu, Advocate Sr.No.73639 +1cc to Mr.A.Hariharan, Advocate Sr.No.73597 GCG VB/JC/SAR2/13/09/2017/3P/5C S.A.(MD) No.366 of 2017 22.08.2017