N. Perumal Padayachi vs A. Somasundara Padaiyachi

M. Duraiswamy, J.—The above second appeal arises against the judgment and decree passed in A.S. No. 8 of 2006 on the file of the Subordinate Judge, Panruti, confirming the judgment and decree passed in O.S. No. 421 of 2004 on the file of District Munsif, Panruti.

The appellant was the defendant and the respondent was the plaintiff in the suit.

The plaintiff filed the suit in O.S. No. 421 of 2004 for recovery of a sum of Rs. 63,500/-.

The brief case of the plaintiff is as follows:-

(i) According to the plaintiff, the defendant borrowed a sum of Rs. 50,000/- on 26.11.2000 and executed a suit promissory note in his favour. Since, the defendant failed to repay the loan amount, the plaintiff issued notice on 06.06.2003. Inspite of the same, the defendant did not repay the amount. In these circumstances, the plaintiff filed a suit.

The brief case of the defendant is as follows:

According to the defendant, he had not executed the suit promissory note on 26.11.2000 and it is a fabricated and a forged document. Further, the defendant has stated that there was enmity between the plaintiff''s family and the defendant''s family. Therefore, the plaintiff has forged the suit promissory note and filed a suit as against the defendant. The defendant also stated the plaintiff''s elder brother, namely Emperumal son of Adhimolola Padayachi, Meliruppu Village entered into sale agreement with respect to his property with the defendant. The defendant further stated that since the Emperumal did not execute the sale deed infavour of the defendant, the defendant filed a suit in O.S. No. 119 of 1998 before the Sub Court, Panruti in respect of the sale agreement. Further, that apart the defendant has stated that the defendant had not borrowed any amount from the plaintiff and therefore sought dismissal of the suit.

Before the trial Court, on the side of the plaintiff, 3 witnesses were examined and 3 documents Ex.A.1 to Ex.A.3 were marked and on the side of the defendant, he was examined as D.W.1 and 18 documents Ex.B.1 to Ex.B.18 were marked. The trial court after taking into consideration the oral and documentary evidences of both sides decreed the suit. Aggrieved over the judgment and decree of the trial court, the defendant preferred an appeal in A.S. No. 8 of 2006 and the lower appellate court also confirmed the judgment and decree of the trial court and dismissed the appeal. Aggrieved over the judgments and decrees of the courts below, the defendant has filed the above second appeal.

Heard Ms. A. Sumathy learned counsel appearing for the appellant and Mr. K. Moorthy, learned counsel appearing for the respondent.

At the time of admission of the second appeal, the following substantial questions were arose for consideration:-

Whether the Courts below have gone wrong in relying upon the evidence relating to different document affixed with Re.1 stamp and wrong in constructing the same for Ex.A.1, which is affixed with 40 ps stamp and whether such construction of evidence by the courts below is opposed to Evidence Act?

Whether the Courts below have been wrong in not applying the provisions of Section 35 of the Indian Stamps Act, 1899, while the suit is based on insufficiently stamped pro-note and as such inadmissible in evidence?

Whether the courts below have failed to apply Section 91 of the Indian Evidence Act, while even an amendment of plaint could be rejected in view of Section 91 of the Indian Evidence Act, on the ground of lending the pro-note are integral part of the same transaction?

Whether the trial Court has failed to note that there is absolutely no evidence connecting for Ex.A.1 and the witnesses are very much interest with the plaintiff and in the absence of such proof of execution whether the judgments are maintainable.

On a careful consideration of the materials available on record and the submissions made by the learned counsel on either side, it is seen that the dispute is with regard to the execution of the suit promissory note. According to the plaintiff, on 26.11.2000, the defendant borrowed a sum of Rs. 50,000/- and executed Ex.A1- pronote, agreeing to repay the loan amount with interest @ 12% per annum. Since, the plaintiff has failed to repay the loan amount, the plaintiff issued Ex.A2- Legal notice dated 06.06.2003 to the defendant and the defendant sent reply dated 16.06.2003 to the legal notice sent by the plaintiff, which is marked as Ex.A6. The plaintiff was examined as P.W.1 who categorically stated that the defendant had borrowed a sum of Rs. 50,000/- and P.W.2 is the attestor of Ex.A1 - Pronote who had also stated that he saw the defendant signing the pronote on 26.11.2000. P.W.2 is the scribe of Ex.A1, who spoke about the execution of suit promissory note. The defendant has taken a stand that he used to affix his signature only in English, therefore, the signature found in Ex.A1 cannot be true for the reason that it was signed in Tamil. However, this contention raised by the defendant in his oral evidence was not raised in the written statement. He has simply stated that his document is a fabricated and forged one. When the defendant in order to prove that he used to affix his signature in English marked Exs. B1 to B18 documents which contains the signature of the defendant in English and when he was able to depose that he used to sign only in English, the reason for not stating so in the written statement was not explained by the defendant. When he had this valid defense, available to him, he should have stated the said defense in the written statement. It is a settled position that any amount of evidence need not be looked into without the corresponding pleadings. Therefore the Courts below have rightly rejected the defense taken by the defendant and decreed the suit.

The learned counsel appearing on behalf of the appellant in support of her contentions relied upon the Judgment of this court reported in Natesan Vs. Sri Balamurugan Finance and Others, wherein it has been held that insufficiently stamped pro-note u/s 35 of the Indian Stamp Act, 1899 is inadmissible in evidence for any purpose.

In the case on hand, the plaintiff established and proved the case by examining P.W.1 to P.W.3.Since the plaintiff has proved the due execution of promissory note by oral and documentary evidences, the Courts below have rightly found that the defendant is liable to pay the amount to the plaintiff. The Courts below have rightly ignored the trivial discrepancies in evidence of P.W.1. Since the facts and circumstances of the case relied on by the learned counsel for the appellant differs from the facts and circumstances of the present case, the decision relied on by the learned counsel for the appellant is not applicable to the present case.

In these circumstances, I find no ground much less any substantial question of law to interfere with the concurrent findings of the courts below. The Second Appeal is liable to be dismissed. Accordingly, the Second Appeal is dismissed. However, there shall be no order as to costs. Consequently, connected miscellaneous petitions are closed.