1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 21.06.2011 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM SECOND APPEAL (MD) No.252 of 2011 and MISCELLANEOUS PETITION No.1 of 2011 P.Pandiyan .. Appellant/Defendant Vs. Lakshmi Ammal .. Respondent/Plaintiff Second Appeal filed under Section 100 of CPC against the Judgment and decree dated 30.11.2009 passed in Appeal Suit No.9 of 2009 by the Principal District Court, Madurai confirming the Judgment and decree dated 24.09.2008 passed in Original Suit No.175 of 2005 by the Second Additional Sub Court, Madurai. For Appellant : Mr.V.Mari Selvaraj For Respondent : Mr.L.Gunasekaran JUDGMENT The concurrent Judgments and decrees passed in Original Suit No.175 of 2005 by the Second Additional Sub Court, Madurai and in Appeal Suit No.9 of 2009 by the Principal District Court, Madurai are being challenged in the present second appeal. 2. The respondent herein as plaintiff has instituted Original Suit No.175 of 2005 on the file of the trial Court praying to pass a preliminary decree on the basis of mortgage deed and also to pass a money decree on the basis of pronote, wherein the present appellant has been shown as sole defendant. 3. In the plaint it is averred that on 06.05.2002, the defendant has borrowed a sum of Rs.50,000/- from the plaintiff and to that extent he has executed a mortgage deed in favour of the plaintiff and subsequently on 08.05.2002, the defendant has received a sum of Rs.50,000/- from the plaintiff and to that extent he executed a pronote. The defendant has agreed to pay 18% interest and he has also given an undertaking dated 08.05.2002. But the defendant has failed to keep up his promise either in paying interest or in discharging entire loan. Under the said circumstances, the present suit has been instituted for the reliefs sought for in the plaint. 4. In the written statement filed on the side of the defendant, it is averred that on 06.05.2002, the defendant has received a sum of Rs.50,000/- from the plaintiff and to that extent he has executed a mortgage deed. It is false to say that on 08.05.2002, the defendant has received a sum of Rs.50,000/- and executed the suit pronote in favour of the plaintiff. At the time of executing the mortgage deed dated 06.05.2002, the plaintiff has obtained signatures of the defendant on blank pronote as well as on blank papers and the suit pronote is not https://hcservices.ecourts.gov.in/hcservices/ 2 supported by consideration and there is no merit in the suit and the same deserves to be dismissed. 5. On the basis of the rival pleadings raised on either side, the trial Court has framed necessary issues and after analysing both the oral and documentary evidence has decreed the suit as prayed for. Against the Judgment and decree passed by the trial Court, the defendant as appellant has preferred Appeal Suit No.9 of 2009 on the file of the first appellate Court. 6. The first appellate Court after hearing both sides and upon reappraising the evidence available on record has dismissed the appeal and thereby confirmed the Judgment and decree passed by the trial Court. Against the concurrent Judgments and decrees passed by the Courts below, the present second appeal has been preferred at the instance of the defendant as appellant. 7. As agreed by the learned counsel appearing for both sides, the present second appeal is disposed of on merits at the stage of admission. 8. On the side of the appellant/defendant, the following substantial questions of law have been raised for consideration: a) Whether the lower appellate Court was justified in confirming the judgment of the trial Court when the plaintiff has admitted the execution of promissory note and confirmation letter only on 06.05.2002 by way of additional security to mortgage deed as per the provisions of Section 58 of the Indian Evidence Act is legally correct? b) Is both the Courts below correct in decreeing the plaintiff's suit when the plaintiff has not discharged the onus of proof and without considering the legal aspect as adumbrated under Section 118 of the Indian Evidence Act? c) Whether the lower appellate Court is correct in confirming the judgment of the trial Court on the basis of the evidence of P.W.1 in the absence of pleadings in this case? d) Whether the lower appellate Court was justified in confirming the judgment of the trial Court on the basis of the contradictory evidences in the later part of the cross examination by way of correcting the earlier admission is correct? 9. The case of the respondent/plaintiff is that on 06.05.2002, the defendant has received a sum of Rs.50,000/- from the plaintiff and to that extent he executed the suit mortgage deed. On 08.05.2002, he received another sum of Rs.50,000/- from the plaintiff and executed the suit pronote and despite repeated demands made by the plaintiff, the defendant has failed to discharge his liability and therefore the present suit has been filed. 10. The defence taken on the side of the defendant is that he executed the suit mortgage deed as alleged in the plaint, but he has not executed the suit pronote and at the time of executing the suit mortgage deed, the plaintiff has obtained signatures of the defendant on blank https://hcservices.ecourts.gov.in/hcservices/ 3 pronote as well as on blank papers and the same has been utilised for the purpose of creating the suit pronote and therefore the same is not supported by consideration. 11. The Courts below have concurrently rejected the defence taken on the side of the defendant with regard to execution of the suit pronote and also passing of consideration. Under the said circumstances, the only point apart from the substantial questions of law raised on the side of the appellant/defendant to be decided is as to whether the suit pronote has been executed by the defendant and the same is supported by consideration? 12. The suit mortgage deed dated 06.05.2002 has been marked as Ex.A.1 and the suit pronote dated 08.05.2002 as well as the undertaking alleged to have been given by the defendant have been marked as Exs.A.2 and A.3. 13. The learned counsel appearing for the appellant/defendant has repeatedly contended that the defendant has admitted the due execution of Ex.A.1 and also passing of consideration, but he denied the execution of Ex.A.2 and also passing of consideration and the plaintiff has been examined as P.W.1 and she has given only nebulous evidence and the Courts below without considering the evidence given by P.W.1 have erroneously rejected the defence taken on the side of the appellant/defendant and therefore concurrent Judgments and decree passed by the Courts below are liable to be interfered with. 14. Per contra, the learned counsel appearing for the respondent/plaintiff has contended that on the side of the plaintiff P.Ws.1 to 3 have been examined and all of them have clearly stated in their evidence about the execution as well as the passing of consideration of Ex.A.2 and the Courts below after considering the overall evidence given by P.Ws.1 to 3 have rightly rejected the defence taken on the side of the defendant and therefore the concurrent Judgments and decrees passed by the Courts below do not warrant interference. 15. From the defence putforth on the side of the appellant/defendant, it is easily discerned that the signatures found in Exs.A.2 and A.3 have been clearly admitted by the defendant. Since the signatures found in Exs.A.2 and A.3 have been clearly admitted by the defendant, it is for the defendant to prove that Exs.A.2 and A.3 have come into existence on the basis of the circumstances mentioned in the written statement. Even the presumption available under Section 118 of the Negotiable Instruments Act, 1881 is nothing, but rebuttable presumption. 16. On the side of the respondent/ plaintiff, P.Ws.1 to 3 have been examined and all of them have deposed to the effect that the defendant has executed Exs.A.1 to A.3 and he also received Rs.50,000/- for Ex.A.1 and Rs.50,000/- for Ex.A.2. Since on the side of the plaintiff, P.Ws.1 to 3 have given evidence to the effect that Exs.A.1 to A.3 have been executed by the defendant in favour of the plaintiff, as stated earlier, the entire burden lies upon the defendant to prove that Exs.A.2 and A.3 have come into existence on the basis of the circumstances mentioned in the written statement. https://hcservices.ecourts.gov.in/hcservices/ 4 17. As stated earlier, the plaintiff has been examined as P.W.1. In the proof affidavit filed by P.W.1, it is stated to the effect that Exs.A.1 to A.3 have been executed by the defendant and thereby he received Rs.1,00,000/- from the plaintiff. During the course of cross examination, the plaintiff has deposed to the effect that she does not know the place of execution of the suit pronote. Further she has deposed that she does not know the person, by whom the same has been written. Further she has clearly deposed in her evidence that on 06.05.2002, the defendant has executed the suit pronote as well as undertaking in her house. 18. The defence taken on the side of the defendant is that at the time of executing Ex.A.1, the plaintiff has obtained signatures of the defendant on blank pronote as well as on blank papers. Considering the defence taken on the side of the defendant and also considering the evidence given by P.W.1 to the effect that on 06.05.2002, the defendant has executed the suit pronote as well as undertaking in the house of P.W.1, the Court can very well accept the defence taken on the side of the defendant with regard to execution of Ex.A.2 and A.3. 19. The consistent case of the plaintiff is that the suit mortgage deed has come into existence on 06.05.2002. At the time of executing the suit mortgage deed, the plaintiff has advanced a sum of Rs.50,000/- to the defendant. The suit pronote has come into existence on 08.05.2002. The contention of the plaintiff is that she has advanced another sum of Rs.50,000/- to the defendant. Since Ex.A.1, the suit mortgage deed has come into existence on 06.05.2002 and thereby advanced Rs.50,000/- to the defendant, it is highly impossible and also improbable that within two days i.e., on 08.05.2002, the plaintiff has advanced a sum of Rs.50,000/- to the defendant under Ex.A.2 without getting any security. Therefore it is needless to say that the defence putforth on the side of the defendant with regard to Exs.A.2 and A.3 is highly probable and in fact the defendant has discharged his burden as contemplated under Section 118 of the Negotiable Instruments Act, 1881. 20. The Courts below without considering the vital evidence given by P.W.1 with regard to execution of Ex.A.2 and A.3 has simply rejected the defence taken on the side of the defendant on the basis of the presumption available under Section 118 of the Negotiable Instruments Act, 1881. The approach made by the Courts below is totally erroneous. Since the approach made by the Courts below is totally erroneous, the substantial questions of law raised on the side of the appellant/defendant are really having substance and the same are decided in favour of the appellant/defendant and altogether the present second appeal is liable to be allowed in part. 21. In fine, this second appeal is allowed in part without costs at the stage of admission. The concurrent Judgments and decrees passed by the Courts below are modified as follows: https://hcservices.ecourts.gov.in/hcservices/ 5 The respondent/plaintiff is entitled to get a preliminary decree on the basis of Ex.A.1 and to that extent Original Suit No.175 of 2005 is decreed with costs. In respect of the relief sought for on the basis of pronote (Ex.A.2), Original Suit No.175 of 2005 is dismissed without costs. Consequently, connected Miscellaneous Petition is closed. Sd/- Assistant Registrar (AS) /True copy/ Sub Assistant Registrar To 1.The Principal District Judge, Madurai. 2.The Second Additional Sub Judge, Madurai. Copy to The Section Officer, VR Section, Madurai Bench of Madras High Court, Madurai. +1CC TO MR.V.MARISELVARAJ, ADVOCATE SR.19283 +1CC TO MR.L.GUNASEKARAN, ADVOCATE SR.19264 Smn SR ; 03.08.2011 : 5p/6c S.A(MD)No.252 of 2011 and M.P(MD)No.1 of 2011 21.06.2011 https://hcservices.ecourts.gov.in/hcservices/