IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21.04.2011 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.1380 of 2007 and C.R.P.NPD No.131 of 2006 1. T.Jayalakshmi 2. Sree Amman Arts and Science College rep.by its Correspondent T.Jayalakshmi ... Appellants in S.A.No.1380/2007 and Petitioners in CRP NPD No.131 of 2006 vs. Mukundchand Bothra ... Respondent in S.A.No.1380 of 2007 and CRP NPD No. 131 of 2006 S.A.No.1380 of 2007: This second appeal is filed u/s 100 of CPC against the judgement and decree dated 21.10.2005 passed by the learned Additional Disrict and Sessions judge, Fast Track Court No.III, Chennai in A.S.No.476 of 2004 confirming the judgement and decree dated 29.03.2004 passed by the learned XII Assistant Judge, City Civil Court, Chennai in O.S.No.4325 of 2001. CRP NPD No.131 of 2006: Civil Revision Petition filed under Section 115 of the Code of Civil procedure against the order and decreetal order dated 11.11.2005 passed by the leasnred X Assistant Judge, City Civil Court, Chennai in O.S.No.4325 of 2001. For Appellants : Mr.P.V.Sanjeev in S.A and petitioners in CRP For Respondent : Mr.S.V.Jayaraman in Second Appeal Senior counsel for and in CRP Mr.T.Dhanasekaran https://hcservices.ecourts.gov.in/hcservices/ COMMON JUDGMENT/ORDER The second appeal No.1380 of 2007 is focussed by the defendants inveighing the judgement and decree dated 21.10.2005 passed by the learned Additional Disrict and Sessions judge, Fast Track Court No.III, Chennai in A.S.No.476 of 2004 confirming the judgement and decree dated 29.03.2004 passed by the learned XII Assistant Judge, City Civil Court, Chennai in O.S.No.4325 of 2001. 2. The parties, for the sake of convenience, are referred to here under according to their litigative status and ranking before the trial Court. 3. A recapitulation and resume of relevant facts, which are absolutely necessary and germane for the disposal of this second appeal would run thus: a] The plaintiff filed the suit seeking the following reliefs: - to pass a decree and judgment against the defendants, jointly and severally, for a sum of Rs.3,08,000/- with further interest on the principal sum of Rs.2,00,000/- from the date of the plaint till realization at the rate of 18% per annum and for costs of the suit including counsel's fees. (extracted as such) b] Written statement was filed by the defendants resisting the suit. c] Whereupon, issues were framed by the trial court. During trial, on the plaintiff's side, the plaintiff examined himself as PW1 and marked Exs.A1 to A7. On the defendant's side, D1 examined herself as DW1 along with DW2 and no document was marked. d] Ultimately, the trial court decreed the suit, mandating the defendants to pay jointly and severally a sum of Rs.3,08,000/- with 8% interest per annum on Rs.2,00,000/- from the date of decree and at 6% per annum from the date of decree till realisation. Aggrieved by the said judgment and decree, the defendants preferred the appeal for nothing but to be dismissed by the appellate court confirming the judgment and decree of the trial court. e] Challenging and impugning the judgments and decrees of both the courts below, this second appeal has been filed on various grounds and also suggesting as many as eleven substantial questions of law: 4. Whereas my learned predecessor while admitting the second appeal, framed the following substantial questions of law: https://hcservices.ecourts.gov.in/hcservices/ 1. Whether the appellate court below was not perverse by holding that the suggesions made by the defendant counsel clearly shows that there was a transaction in between the plaintiff and defendants and the contents that the defendants have not borrowed any amount and not executed any promissory note or issued cheques in question in the suit is not sustainable? 2. Whether the courts below were right and justified in concluding the borrowal of money and execution of promissory notes in favour of plaintiff by misreading the evidences of DW1 and DW2 inasmuch as there is specific denial and clear defence about the borrowal and execution of alleged promissory notes? (extracted as such) 5. Heard both sides. 6. The epitome and the long and short of the arguments as put forth by the learned counsel for the appellants/defendants would run thus: i] Both the courts below failed to apply the principle governing the burden of proof. ii] By no stretch of imagination, the burden of proof can be cast upon the defendant, who denied her signature in the suit promissory notes. iii] The onus of proof is on the plaintiff to prove that the suit pro-notes are genuine ones bearing the signatures of the first defendant; but the plaintiff failed to prove the same and in such a case, it was not open for the courts below to expect the first defendant to prove positively that the purported signatures in the suit pro-notes are not her signatures. The negative cannot be expected to be proved by the first defendant. Both the courts below wrongly placed reliance on the suggestion made to PW1 during cross examination. iv] The plaintiff cannot pick holes in the case of the defendants and try to achieve success in the litigative battle. The courts below simply placed reliance on the suggestions made during cross examination of PW1 and decreed the suit without having clinching evidence to prove the suit pronotes. Accordingly, he would pray for setting aside the judgments and decrees of both the courts below and for ultimately dismissing the original suit. https://hcservices.ecourts.gov.in/hcservices/ 7. Per contra, in a bid to torpedo and pulverise and to take the edge off the arguments of the learned counsel for the defendants, the learned senior counsel for the plaintiff would advance his arguments, which could tersely and briefly be set out thus: a] There is no hard and fast rule that the suggestions made during cross examination to a party should not be relied on by the court for rendering its judgment. Suggestions made during cross- examination also could be taken as part of the evidence. b] The plaintiff positively established before the courts below that there were loan transactions between the plaintiff and the first defendant and in connection with that alone the suit pro-notes emerged and the courts took into account the prevaricative stands of the defendants and ultimately decreed the suit, warranting no interference in the second appeal. 8. Both the points are taken together for discussion as they are inter-linked and inter-woven with each other. 9. A re'sume' of facts, which are admitted or at least undeniable would run thus: The contention of the plaintiff is that the first defendant borrowed during a particular period a sum of Rs.5 lakhs and in connection with that five pro-notes emerged at the rate of Rs.1 lakh each. Certain cheques also were issued by the first defendant. Inasmuch as the cheques were proved to be rubber cheques, steps were taken to prosecute the defendants under Section 138 of the Negotiable Instruments Act. But those proceedings ended in a fiasco. The present suit over which the second appeal has emerged is relating to two such promissory notes each for a sum of Rs.1 lakh. 10. The defendant's contention in the written statement is that the plaintiff documents are forged and fabricated. Succintly and briefly the defendant's plea is that the courts below were not justified in placing reliance on the suggestions made during cross examination of PW1. According to D1, the courts below have not taken into account her deposition as DW1 and also the deposition of DW2. 11. At this juncture, I would like to point out that there is no embargo or prohibition that the suggestions made during cross examination should not be taken as part of the evidence. The learned counsel for the defendants while cross examining the plaintiff (PW1) made some suggestions for which, the plaintiff as PW1 gave answers. The courts below adverted to the relevant portion of it, which could be extracted here under for ready reference: https://hcservices.ecourts.gov.in/hcservices/ @gpujpthjpfs; mt;tg;nghJ fld; th';fp jpUk;gp brYj;jp tpl;lhh;fs; vd;W brhd;dhy; rhpay;y/ fld; bfhLj;jjdhy; gpujpthjp fy;Y}hp epWtdj;jpd; kPJ Mjpf;fk; brYj;jpndd; vd;why; rhpay;y/ gpujpthjp epWtdk; xU mwf;fl;lis epWtdk;/ mjdhy; gpujpthjpfs; vd;id mjpy; g';F bgw vd;id mDkjpf;f ,aytpy;iy vd;why; rhpay;y/ gpujpthjpfSk; ,Ue;J Vw;fdnt bgw;w Md; okhd;Lfis gad;gLj;jp ,e;j tHf;F. bgha;ahd Kiwapy; jhf;fy; bra;ag;gl;lJ vd;W brhd;dhy; rhpay;y/@ A mere perusal of it would exemplify and demonstrate, display and project that the learned counsel for the defendants on behalf of the defendants projected before the court that there were some loan transactions between the plaintiff and the defendants and in connection with that certain pro-notes emerged and the present suit was filed misusing those pro-notes. Whereupon, the courts below arrived at the conclusion that the burden got shifted from the plaintiff to the defendants. I am of the considered view that there is no perversity or illegality in the ratiocination adhered to by the courts below in arriving at such conclusion. 12. I would like to refer to the written statement, more specifically, para No.8, which is extracted here under: "8. The defendant fabricating and forging the documents filed the suit to tarnish the image of the second defendant college." The learned counsel for the defendants would vehemently argue that the said para No.8 coupled with the other versions in the written statement would be much more than sufficient to infer and understand by the court that the first defendant disputed her signatures in both the suit pro-notes. 13. The defendant in the writen statement did not specifically contend that the purported signatures in the suit promissory note are not of that of her own and that the seal found beneath her signatures are also not that of the institution/college concerned. At least during cross examination of PW1, the first defendant should have got herself confined only to the averments as found set out in the written statement; but giving a go-by to the gamut of the written statement, the cross-examination as against PW1 was focussed as though PW1 was a stranger to the defendants and that he for the purpose of tarnishing the image of the defendants, resorted to such filing of the suit. 14. No doubt, as contended by the learned counsel for the defendant, in the deposition of her as DW1, she would wax eloquence to the effect that the purported signatures in the suit promissory notes are not that of her own, but one Krishnan had some money https://hcservices.ecourts.gov.in/hcservices/ transactions with the defendants and he in the course of such money transaction obtained certain promissory notes and with the help of those promissory notes, the present plaintiff has filed this suit. 15. I recollect and call up the maxim - judicis est judicare secundum allegata et probata - It is the duty of the judge to decide according to facts alleged and proved. 16. It is a common or garden principle governing the law of pleadings that any amount of evidence without the backing of the pleadings should be eschewed. In the written statement no such case is found spelt out. As such, both the courts below presumably based on the maxim – allegans contraria non est audiendus [ On alleging contrary or contradictory things (whose statements contradict each other) is not to be heard] disbelieved the version of the defendant. Of course, the first appellate court in the process of dismissing the appeal, went to the extent of observing as though the first defendant should have got the pro-notes verified as to whether the purported signatures found there in are that of the signature of the first defendant or not. 17. No doubt, the burden of proof is not on the defendants to prove at the first instance, positively anything in matters of this nature. But, this is a peculiar case, in which the plaintiff by his own oral and documentary evidence and also by finding support from the suggestion put to PW1 during cross examination by the defendant, got the burden shifted or fobbed off on the defendants. Whereupon, incidentally, the lower appellate court passed such remark that the defendants at least could have got the genuineness of the pro-notes verified with the help of a handwriting expert; wherefore the defendants cannot try to make a mountain out of a mole hill. 18. Here, it has to be seen as to whether both the courts below were justified in inferring and understanding the entire gamut of the case properly based on the plaintiff's evidence and also the suggestions put during cross examination of PW1. 19. I am of the firm opinion that the approach of the courts below cannot be found fault with and it is not hovering anywhere near illegality or perversity, warranting interference in second appeal. 20. The learned counsel for the defendant would submit that the pre suit notice was not given. But both the courts below misunderstood the pre litigation notice issued by the plaintiff in respect of the proceedings initiated under Section 138 of the Negotiable Instruments Act. No doubt, Ex.A5 even though in the earlier portion refers to a borrowal of Rs.5 lakhs by the defendant from the plaintiff, yet at the latter portion, the main focus is under Section 138 of the Negotiable Instruments Act. Simply because, https://hcservices.ecourts.gov.in/hcservices/ a specific pre-litigation notice was not issued by the plaintiff to the defendants demanding the monies due payable by the defendants under the suit promissory notes, that it does not mean that the suit itself has to be held as one bad for want of a pre-suit notice. However, the learned counsel for the defendants would submit that in this case, the defendants cannot be mulcted with liability to pay cost because there was no proper pre-suit demand notice, for which the learned senior counsel for the plaintiff would appropriately and appositely, legally and convincingly submit that had the defendants' on receipt of suit summons expressed her readiness to pay the dues, then her contention might be acceptable. 21. Here, it is glaringly and pellucidly clear that despite receipt of suit summons, which itself would constitute a demand notice as per the well settled proposition of law, the defendants had not come forward to pay the dues. Had she done so, then she could be exonerated from paying the cost of the suit. Hence, the contention as put forth on the side of the defendants is untenable. 22. However, the learned counsel for the defendants would make an extempore submission by placing reliance on the memorandum of grounds of second appeal, that the suit was presented on 06.04.1998, whereas it was numbered only after 18.07.2001; because lastly it was represented only on 18.07.2001, so to say, long after three years and 3 months, the suit was numbered and the defendants cannot be mulcted with liability to pay interest during that period, for which the plaintiff has to blame himself. 23. I could see considerable force in his submisson, for the reason that even though the plaint was presented on the last date of expiry of limitation, so to say, on 06.04.1998, it was returned and thereafter was represented with enormous delay, so to say, the last representation was on 18.07.2001 and thereafter, alone the suit was numbered. There was a delay of three years and three months and at least one month concession could be given for getting the plaint numbered and for three years and two months period, absolutely, there was no justification and because of the plaintiff's fault or in action, the defendants cannot be burdened with payment of interest for such period. 24. I recollect and call up the maxims - (i) Nul prendra advantage de son tort demesne – No one shall take advantage of his own wrong. (ii) Nullus commodum capere potest de injuria sua propria – No one can obtain an advantage by his own wrong. The sum and substance of the above maxims is that no one can be allowed to capitalize his own fraud or mistake. https://hcservices.ecourts.gov.in/hcservices/ 25. Accordingly, the defendants cannot be made liable for paying interest during the period starting from 06.04.1998 till 06.06.2001 and to that effect, the decree of the trial court shall stand modified. 26. Accordingly, the substantial questions of law are answered and the decree of both the courts shall stand modified to the following limited extent: "The defendants shall not be liable to pay interest for the period from 06.04.1998 to 06.06.2001." 27. Accordingly, the second appeal is partly allowed without costs. 28. CRP 131 of 2006 is focussed as against the order dated 11.11.2005 passed by the learned X Assistant Judge, City Civil Court, Chennai in E.P.No.1376 of 2005. This court while granting stay on 21.01.2006 mandated that the revision petitioners/defendants/ debtors should deposit in the trial court a sum of Rs.1,25,000/- and in compliance with the said order, the amount was also deposited into City Civil Court, Chennai -104 vide Receipt No.498 dated 02.02.2006 as evidenced from the photocopy of the receipt produced before this court. 29. As such, besides such amount, only for the remaining amount, EP shall proceed further as against the defendants as per the judgment of this court in the second appeal No.1380 of 2007. However, three months' time is granted from the date of receipt of a copy of this order for payment of the remaining E.P amount also. If within such time the remaining amount is not paid, then the precept shall proceed further. 30. With the above direction, this civil revision petition is disposed of. No costs. Consequently, the connected miscellaneous petition is closed. 31.In the result, S.A.No.1380 of 2007 is partly allowed and C.R.P.NPD No.131 of 2006 is disposed of with the above direction. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To 1. The Additional Disrict and Sessions Judge, Fast Track Court No.III, Chennai 2. The XII Assistant Judge, City Civil Court, Chennai 3.The X Assistant Judge, City Civil Court, Chennai 4.The Registrar, City Civil Court, Chennai. 5.The Principal District and Sessions Judge, Chennai. 6.The Section Officer, V.R.Section, High Court, Madras. 1 cc to Mr.P.V.Sanjeev, Advocate, Sr.No.27868 1 cc to Mr.T.Dhanasekaran, Advocate, Sr.No.28405 S.A.No.1380 of 2007 and C.R.P.NPD No.131 of 2006 JP {CO} TP/19.5.2011. https://hcservices.ecourts.gov.in/hcservices/