K.S. Vijayalakshmi vs A. Velusamy

G. Rajasuria, J.—This second appeal is filed by the Defendant inveighing the judgment anddecree dated 22.08.2008 passed by the learned

Additional District Judge, FastTrack Court No. IV, Bhavani, Erode District confirming the judgment and decree dated30.10.2010 passed by the

learned Principal District Munsif, Bhavani in O.S. No. 298of 2006.

The parties, for the sake of convenience, are referred to here under according to their litigative status and ranking before the trial Court.

A recapitulation and resume of the relevant facts, 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 directing the Defendant to pay Plaintiff the sum of Rs. 94,687.50 with subsequent interest at the rate of 9% per annum and for

costs.

(extracted as such)

b. The Defendant filed the written statement resisting the suit.

c. Whereupon issues were framed and on the side of the Plaintiff, he examined himself as PW1 along with PW2 and marked Ex.A1. On the

Defendant''s side, she examined herself as DW1 along with DW2 and marked Ex.B1.

d. Ultimately, the trial court decreed the suit. As against which, appeal was filed by the Defendant for nothing but to be dismissed confirming the

judgment and decree of the trial court.

e. Challenging and impugning the judgments and decrees of both the courts below, the Defendant has preferred this second appeal on various

grounds and also suggesting the following substantial questions of law:

1 Whether the execution of the promissory note has been proved in accordance with law?

2 Whether any consideration has been passed through Ex.P1 Promissory note in view of the pleadings and evidences of the respective witnesses?

Whether the suit claim is sustainable without any notice of demand in writing?

(extracted as such)

At the outset itself, I would like to fumigate my mind with the following principles as found enunciated and enshrined in the decision of the

Hon''ble Apex Court reported in Hero Vinoth (minor) Vs. Seshammal, .

. . .

(iii) The general rule is that High Court will not interfere with the concurrent findings of the Courts below. But it is not an absolute rule. Some of the

well-recognised exceptions are where (i) the Courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn

wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to

decision based on no evidence"", it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the

evidence, taken as a whole, is not reasonably capable of supporting the finding.

The other decisions emerged in this regard are as under:

(i) Vijay Kumar Talwar Vs. Commissioner of Income Tax, Delhi, , certain excerpts from it would run thus:

It is manifest from a bare reading of the section that an appeal to the High Court from a decision of the Tribunal lies only when a substantial

question of law is involved, and where the High Court comes to the conclusion that a substantial question of law arises from the said order, it is

mandatory that such question(s) must be formulated. The expression ""substantial question of law"" is not defined in the act. Nevertheless, it has

acquired a definite connotation through various judicial pronouncements.

A finding of fact may give rise to a substantial question of law, inter alia, in the event the findings are based on no evidence and/or while arriving

at the said finding, relevant admissible evidence has not been taken into consideration or inadmissible evidence has been taken into consideration or

legal principles have not been applied in appreciating the evidence, or when the evidence has been misread.

(ii) Kashmir Singh Vs. Harnam Singh and Another, .

(iii) 2009 1 L.W. 1 - State Bank of India and Ors. v. S.N. Goyal

A mere poring over and perusal of those judgments would convey and spotlight that the High Court while exercising its power u/s 100 of Code of

CPC should see as to whether there is any substantial question of law is involved in the matter.

Hence, it is just and necessary to see as to whether there is any substantial question of law is involved in the matter at all.

Heard both sides.

The learned Counsel for the Plaintiff placing reliance on the judgments of the courts below as well as the typed set of papers, which contain the

relevant evidence would develop his argument that absolutely, there is nothing to indicate and exemplify, demonstrate and expatiate that any

question of law is involved in this case and that it is purely based on factual analysis, the courts have decided the matter, warranting no interference

in the second appeal.

Whereas the learned Counsel for the Defendant would submit thus:

a] The courts below were carried away by the fact that the Defendant admitted her signature in the suit promissory note and mere admission of the

signature would not connote and denote that the matter was decided on factual analysis by the courts below.

b] The evidence of DW2, the scribe of Ex.A1 would torpedo and pulverise the case as put forth by the Plaintiff.

c] Even though PW2, the attesting witness to Ex.A1, in a parrot fashion would aver supporting the deposition of DW1, DW2 the scribe would

point out in his deposition that the Defendant was not present at the time of the Plaintiff requesting DW2 to scribe the pro-note.

d] Whereas PW1 would depose before the court as though at the time of getting the pro-note scribed by DW2, PW1 the Plaintiff, DW1 the

Defendant and PW2 the witness were present.

e] The evidence of DW2 would falsify the deposition of PW1. But both the courts below failed to take note of the same and simply by invoking

the presumption as contemplated u/s 118 of the Negotiable Instruments Act, decreed the suit, warranting interference in the second appeal.

The indubitable and indisputable or at least the undeniable facts would run thus:

The Plaintiff''s father no doubt, was a partner in one Finance Company, viz., Sri Lakshmi Finance; whereas the Defendant would contend that she

borrowed loan from the said finance company and discharged it also as per Ex.B1 and that taking undue advantage of her signature in the blank

papers, the said Finance company through the Plaintiff, did choose to file this false suit.

I would like to highlight the point that in matters of this nature, the Defendants mainly rely on oral evidence. The believability of the oral

evidence is mainly based on the demeanour of the witness and also on the appreciation of various factual and circumstantial evidence.

Here the trial court would be the best court to appreciate the demeanourof the witness and also the factual circumstances. Accordingly, the

trial court without any perversity or illegality arrived at the conclusion that the evidence ofPW1 amply had driven home the fact that the Defendant

borrowed money from the Plaintiff and in consideration of the same executed the pro-note. Such finding of facts was buttressed and fortified by the

presumption contemplated u/s 118 of the Negotiable Instruments Act. Over and above that, Section 20 of the Negotiable Instruments Act also

would come to the rescue of the Plaintiff. Without admitting even assuming that the Defendant signed only in the blank stamped paper and the

Plaintiff was entitled to get it filled up and treat it as a pro-note. However, based on such presumption alone, both the courts have not decided the

lis. The evidence of the witness to Ex.A1 is on a better footing than the evidence of the scribe of Ex.A1. Here the scribe had not stated that he

personally knew the alleged transaction as put forth by the Defendant. He would only depose that PW1alone asked him to scribe the pro-note by

approaching him singly, for which he responded positively. In such a case, he would not be able to speak about the real nature of the transaction.

However, PW2''s evidence bears out the testimony of PW1. Ex.B1 is a mere discharge receipt of the year 2000; whereas the suit transaction is

pertaining to the year 2003.

However, in order to see, as to whether there is any perversity or illegality in the orders passed by both the courts below, I ventured to peruse

and pore over the written statement itself, which is as cryptic as it could be. There is no detailing and delineation of any wholesome defence. If at

all, the suit transaction is nothing but a transaction relating to the alleged borrowal by the Defendant from the said partnership, then the Defendant

should have set out all the details. There is nothing to indicate and exemplify, demonstrate and display thata particular sum of rupees was borrowed

by the Defendant on a specified date from the said partnership firm. In connection with such a plea there was no admission on the part of the

Plaintiff and in such a case the Defendant ought to have taken steps to summon the firm''s records. No doubt, it was admitted by PW1 that his

father was one of the partners in the said Finance Company, but according to the Plaintiff, he retired even prior to the arisal of the suit transaction.

Considering the overall circumstances, I am of the view that there is absolutely no question of law much less any substantial question of law is

involved in this matter for interference. However, in the interest of justice, considering that the loan was borrowed concerning some agricultural

purpose, I would like to reduce the rate of interest from 9% per annum from the date of plaint till the date of decree to 6% per annum. As such,

subject to the slight modification I confirm the judgment and decree of the trial court and I could see no merit in the second appeal and accordingly,

the same is disposed of.

The learned Counsel for the Defendant would make an extempore submission to the effect that if sufficient time is given, the Defendant would

pay the amount before the Executing Court itself and save her property from being sold in court auction.

I could see considerable force in his submission. Accordingly, three months'' time is granted from this date for deposit of the decreetal amount

by calculating as per this judgment before the Executing Court itself. Whereupon, the Defendant shall stand discharged as otherwise, after three

months'' time without any fresh proclamation the Executing court is hereby empowered to sell the property in court auction sale.

Accordingly, the second appeal is disposed of. However, there shall be no order as to costs. Consequently, the connected miscellaneous

petition is closed.