Kuppa vs Selvaraj

G. Rajasuria, J.—This second appeal is focused by the original Defendant, animadverting upon the judgment and decree dated 11.01.2010

passed in A.S. No. 79 of 2007 by the Subordinate Judge, Kallakurichi, reversing the judgment and decree of the learned Principal District Munsif,

Kallakurichi in O.S. No. 1203 of 2004. The parties are referred to hereunder according to their litigative status and ranking before the trial Court.

Compendiously and concisely, the relevant facts absolutely necessary and germane for the disposal of this Second Appeal would run thus:

(a) The Plaintiff filed the suit for recovery of a sum of Rs. 75,750/-with interest on the basis of the promissory note executed by the Defendant.

(b) The written statement was filed by the Defendant resisting the suit.

(c) Whereupon the trial Court framed the issues.

(d) The Plaintiff-Selvaraj examined himself as P.W.1 along with P.W.2-Velu and Exs.A1 to A3 were marked. The Defendant-Kuppan examined

himself as D.W.1 along with D. Ws.2 and 3.

(e) Ultimately the trial Court dismissed the suit, as against which appeal was filed. Whereupon, the appellate Court reversed the findings of the trial

Court and decreed the suit ordering payment of the suit amount by the Defendant in favour of the Plaintiff with 9% interest per annum from the date

of plaint till the date of decree and 6% interest per annum from the date of decree till realization.

Challenging and impugning the judgment and decree of the first appellate Court, the Defendant filed this Second Appeal on various grounds and

also suggesting the following substantial questions of law:

(a) Whether the findings of the lower appellate court in reversing the well found judgment of the trial Court without supporting the reason to do so

is permissible under the law?

(b) Whether the conclusion of the lower appellate court to reverse the trial court judgment merely on the basis of admission of signature without

examining the validity of the (sic) is correct on its part?

(c) Whether the lower appellate court is justifiable in granting the decree against the stranger to the alleged transaction without legal enforceability?

(d) Whether the lower appellate court is correct in holding the document is valid without appreciating the fact that (sic) whether the same is

supported by any consideration or not is legally enforceable one? (sic)

(extracted as such)

My learned Predecessor adopted the aforesaid (b), (c) and (d) as substantial questions of law.

Heard both sides.

The gist and kernel of the arguments of the learned Counsel for the Appellant/Defendant, placing reliance on the grounds of Second Appeal

would run thus:

(a) Simply because the signature in the pro note was admitted by the Defendant, that it does not mean that the Plaintiff was absolved from his

liability to prove that the said pro note was supported by consideration.

(b) The Defendant simply admitted his signature only in the promote and not the contents of it.

(c) The versions in the written statement would be to the effect that in spite of the fact that there was some transaction between the Plaintiff and the

Defendant''s relatives and that only for the purpose of pacifying the Plaintiff from abusing the Defendant''s relative, the Defendant signed on a blank

paper.

(d) The trial Court considering the pros and cons of the matter correctly dismissed the suit, but the appellate Court without properly ushering in the

correct proposition of law reversed the finding of the trial Court and decreed the suit, warranting interference in the Second Appeal. Accordingly

the learned Counsel for the Appellant prays for allowing the Second Appeal.

In a bid to torpedo and pulverise the arguments as put forth and set forth on the side of the Defendant, the learned Counsel for the Plaintiff

would advance his arguments, which could pithily and precisely be set out thus:

(a) Consequent upon the admission of the signature by the Defendant, the Court is justified in invoking the presumption as contained in Section 118

of the Negotiable Instruments Act.

(b) The Defendant did not discharge his burden of proof in view of the legal presumptions available in favour of the Plaintiff. As such the first

appellate Court correctly decided the lis warranting no interference in the Second Appeal. Accordingly, the learned Counsel for the Plaintiff would

pray for dismissing the Second Appeal.

Indubitably and indisputably, incontrovertibly and ungainsayingly, the Defendant signed the said pro note. As per the Plaintiff, the suit pro note

was found entirely scribed at the time of the Defendant signing it and to that effect P.W.2, one of the attesting witnesses to the pro note deposed

before the Court. As such, the evidence of P.W.2 bears testimony to the deposition of P.W.1 which is in conformity with the averments in the

plaint. Nothing has been elucidated out from P.W.2 that he was deposing falsely. The deposition of D.W.1 remains only as his ipse dixit. However,

D.W.3 on whose behalf allegedly D.W.1(Defendant) signed the pro note would depose that he ascertained from D.W.1 that because the Plaintiff

abused D.W.3, in his absence, D.W.1 being the relative got offended and signed the blank paper. However, D.W.3 would admit that he obtained

money from the Plaintiff with the promise that he would secure Conductor post in Government Transport Corporation, but he could not secure

such post and that he returned a sum of Rs. 26,000/-and there was only a balance of Rs. 4,000/-yet to be paid. But without waiting to receive the

said remaining balance, according to D.W.3, P.W.1, the Plaintiff started abusing the former in his absence and that alone made D.W.1 (Defendant)

to sign the blank paper which was filled up for such a huge amount of Rs. 60,000/-

No doubt, the trial Court considering the oral and documentary evidence was mainly carried away by the alleged fact that the Plaintiff did not

prove the genuineness of the pro note and that therefore; presumption u/s 118 of the Negotiable Instruments Act would not be attracted.

However, the first appellate Court after considering threadbare the pros and cons of the matter held that the presumption u/s 118 of the Negotiable

Instruments Act was attracted in the facts and circumstances of this case. The first appellate Court being the last Court of facts once again analyzed

the deposition of the witnesses with fine toothed-comb and held that the Plaintiff discharged his burden of proof.

At this juncture, I recollect the following maxims:

(1) Affirm antis est probare: The person who affirms must prove.

(2) Affirmative, non neganti, incumbit probation: The proof is incumbent on the one who affirms, not on the one who denies.

It is not a case here that the Plaintiff simply placed reliance on the admission of the Defendant concerning his signature in the suit pro note, but

the Plaintiff examined himself and deposed in consonance and in conformity with the averments in the plaint. Over and above that, one of the

attesting witnesses - P.W.2 also deposed in support of the Plaintiff''s case to the effect that it was he who signed the pro note and that the first

appellate Court after analyzing the oral evidence adduced on the side of the Defendant held that there was nothing to indicate that the pro note was

subsequently filled up after obtaining the signature of the Defendant in a blank paper. Over and above that, once the signature in a pro note is

accepted, then Section 20 of the Negotiable Instruments Act also would be attracted and correspondingly Section 118 of the Negotiable

Instruments Act would come into play. The finding of the first appellate Court is not merely based on mere presumptions and assumptions, but the

first appellate Court based its judgment on analysis of oral evidence itself coupled with the presumptions contemplated under law.

It is a trite proposition of law that as against the finding of fact by the last Court of facts, which is the first appellate Court, this Court would not

be enjoined to interfere in such finding. It has to be seen as to whether the law points were properly applied. The first appellate Court extracted

Section 118 of the Negotiable Instruments Act and also referred to the decision of this Court emerged there under. In paragraph 13 of the first

appellate Court''s judgment, one could find the discussion relating to the deposition of the witnesses also.

Over and above that, I would like to point out one lacuna also in the evidence adduced on the Defendant''s side. Even though P.W.3 the

person who admittedly received only Rs. 30,000/-and claimed that a sum of Rs. 26,000/-was returned by him because the purpose for which such

amount was obtained by him could not get fructified, yet there is no iota or shred, shard or miniscule extent of evidence to demonstrate and prove

that such sum of Rs. 26,000/-was at least returned by him to the Plaintiff so as to probablise his case and this aspect also should be taken note to

disbelieve the theory of the Defendant. Once the burden of proof is on the Defendant to establish that at least that much portion of the amount was

discharged, then there should be clinching evidence, but there are not even details about the return of the said sum of Rs. 26,000/-by P.W.3 to the

Plaintiff and that would exemplify and demonstrate that the Defendant has not come forward with a clear defence or reliable plea on his side.

As such the substantial question of law Nos. 1 and 2 are decided to the effect that the first appellate court on sound reasons alone reversed the

erroneous judgment of the trial Court.

The substantial question of law No. 3 is decided to the effect that the first appellate Court did not direct a third party to discharge the loan, but

only the Defendant who borrowed the amount was directed to discharge the amount.

The substantial question of law No. 4 is decided to the effect that the first appellate Court is correct in holding that the suit promissory note

was supported by consideration.

However, I would like to point out that the first appellate Court awarded 9% interest per annum from the date of plaint till the date of decree,

which in my opinion is on the higher side and it could be at the rate of 6% per annum on par with the post decrial interest awarded by the first

appellate Court. As such, with this slight modification, the rest of the the judgment and decree of the appellate Court are confirmed. Accordingly,

the Second Appeal is disposed of.

No costs. Consequently, connected miscellaneous petition is closed.