Padmanabhan vs Chinnakannu and Pitchaipillai

V. Bakthavatsalu, J.—The plaintiff is the revision petitioner. The plaintiff filed the suit for recovery of the amount on the basis of a promissory

note.

The case of the plaintiff is as follows:-

The defendants borrowed Rs.10,000/- from C.P.Madhavan and executed a promissory note on 19.6.93 at Chinna Salem Village agreeing to

repay the same on demand with interest at 12%. The said Madhavan assigned the promissory note in favour of the plaintiff on 1.9.95 for valid

consideration. Thereafter, the plaintiff demanded the defendants to pay the amount and also issued notice to them. But the defendants failed to pay

the amount. Therefore, the suit is filed for recovery of the amount.

The case of the defendants is as follows:-

The defendants never executed any promissory note in favour of Madhavan. The defendants do not know who is C.P.Madhavan. The suit

promissory note is a forged document. The assignment in favour of the plaintiff is not true. It is not supported by any consideration. The plaintiff is a

teacher. The defendants are also teachers. The plaintiff used to advance loan to poor teachers on monthly interest. In the course of such

transaction, the defendants borrowed Rs.2000/-. At that time, the plaintiff obtained their signatures in a blank paper affixed with stamps.

Thereafter, the defendants paid the amount and discharged the loan. When the defendants demanded the plaintiff to return the above blank paper,

the plaintiff told them that the above document was torn. The first defendant, who is also a teacher, believing the said representation had kept quiet.

After some time, he received notice regarding the suit promissory note. The first defendant approached the plaintiff and enquired him about the

notice. The plaintiff told him that he entrusted certain promissory notes with his advocate and that by mistake, the notice was issued to him. He also

assured that he would not initiate any proceedings against the defendants. Therefore, the defendants did not issue any reply. In order to cause loss

and hardship to the defendants and wreak vengeance due to previous enmity, the plaintiff fabricated the suit promissory note and filed the suit. The

defendants never borrowed any amount from Madhavan.

Before the trial Court, the plaintiff has examined four witnesses including himself. On the side of the defendants, the first defendant has been

examined as D.W.1. The plaintiff has marked documents Exs.A-1 to A-5. On a consideration of oral and documentary evidence, the trial Court

dismissed the suit holding that Exs.A-1 and A-2 are fabricated documents. Aggrieved by the said judgment an decree, the plaintiff has filed this

revision.

It is contended by the revision petitioner that the trial Court failed to appreciate the evidence of P.Ws 2 and 3 and the documentary evidence

adduced on behalf of the plaintiff and that the reasons given by the trial Court for dismissing the suit are not sustainable in law. Learned counsel for

the revision petitioner also contended that the trial Court failed to note that the first defendant has admitted his signature found in the promissory

note Ex.A-1. On the other hand, learned counsel for the respondents/defendants contended that the trial Court has given reasons for disbelieving

the case of the plaintiff and that the findings of the trial Court that the suit promissory note is vitiated by material alterations cannot be assailed by

the revision petitioner now.

The revision is filed u/s 115 CPC. Though the Revisional Court cannot sit as an Appellate Court and reappraise the evidence, the Revisional

Court is empowered to reverse the judgment of the trial Court, if the findings of the trial Court are vitiated by perversity. On reading the judgment

of the trial Court, it has to be held that the trial Court has given a finding on surmises and conjectures. It is also clear that the trial Court has given a

decision against the plaintiff by misreading the entire evidence.

The plaintiff has examined his assignor, P.W.2 and the scribe, P.W.3, and attestor, P.W.4, of the suit promissory note. P.W.2 has stated that

the defendants borrowed amount from him and executed the suit promissory note, Ex.A-1, and that he assigned the suit promissory note in favour

of the plaintiff. P.W.3 is the scribe of the promissory note, Ex.A-1. He has stated that the defendants borrowed Rs.10,000/- from P.W.2. P.W.3

has no motive to fabricate the suit promissory note against the defendants. It is no doubt true that P.W.3 has also written two promissory notes for

the plaintiff. The mere fact that P.W.3 is a known person of the plaintiff cannot be a ground to reject his testimony. P.W.4 is the attestor to both

promissory note and assignment Ex.A-2. He has stated that the first defendant took him to the place of execution of the promissory note. He has

also stated that the defendants borrowed Rs.10,000/- from P.W.2. He has admitted that he has attested the assignment Ex.A-2. Nothing worth

mentioning is elicited from his cross examination to discredit his testimony.

It is significant to note that D.W.1, the first defendant, has admitted his signature found in Ex.A-1. The admission of D.W.1 coupled with the

evidence of P.Ws 1 to 4 will establish the case of the plaintiff that the defendants executed Ex.A-1 in favour of P.W.2.

The conduct of the defendants in not issuing reply notice to the plaintiff''s notice, will also strengthen the case of the plaintiff. The plaintiff issued

notice under Ex.A-3 dated 7.9.95. It is clearly stated in the above notice that the defendants borrowed amount from P.W.2 and executed the suit

promissory note. The defendants received the above notice. But the defendants did not issue any reply to the above notice. D.W.1 has stated in his

evidence that when he approached the plaintiff after receipt of the notice, the plaintiff told him that notice was issued without his knowledge that he

would not initiate any proceedings on the basis of the above notice. The explanation trotted out by D.W.1 for non-issue of notice cannot be

accepted. It is the specific case of the defendants that they do not know who is P.W.2. D.W.1 has also admitted that the plaintiff already filed

another suit O.S.No.522 of 81 on the basis of the promissory note in the name of Meenakshi, the wife of the plaintiff and that the above suit was

decreed in favour of the plaintiff. But he would say that he is not liable to pay any amount under the said promissory note. That apart, D.W.1 has

stated that the plaintiff has filed a case in Ulundurpet Court regarding the sale of an engine and that the above case was dismissed. P.W.1 has

admitted that the first defendant took engine from him on credit basis and that subsequently, he sold the same. But he would say that he does not

know whether the case filed by him regarding the above engine was dismissed or not. However, it is clear that there were certain proceedings

between P.W.1 and the first defendant before the date of filing this suit. Therefore, it is hard to believe the explanation trotted out by D.W.1 for

non-issue of reply notice. If really, there is any truth in the case of the defendants that the plaintiff obtained his signature in a blank promissory note,

he would have definitely issued reply to Ex.A-3, especially when there were earlier proceedings between him and the plaintiff.

The fact that the defendants did not issue any reply to the plaintiff''s notice coupled with the admission of the signature found in Ex.A-1, if

considered alongwith the oral evidence of the scribe and the attestor, would establish the case of the plaintiff that the defendants executed

promissory note in favour of P.W.2 for a valid consideration. It is well settled that when once the execution of the promissory note is proved, the

burden shifts to the defendant to show that the suit promissory note is not supported by consideration. It is also well settled that there is

presumption that the holder of the promissory note is a bonafide holder in due course. It is also proved from the evidence that the plaintiff obtained

assignment from P.W.2 for a valid consideration. The case of the plaintiff, which is proved by legal evidence has not been properly considered by

the trial Court. The trial Court has held that since the case filed by the plaintiff in Ulundurpet Criminal Court was dismissed, the plaintiff in order to

cause hardship to the defendants created the suit promissory note. The above finding of the trial Court is not supported by any evidence on record.

The trial Court has also given a finding that the suit promissory note is vitiated by material alterations. In Ex.A-1, below the signature of the first

defendant, the numeral ""9"" is written in thick ink and that the numeral is altered. The trial Court has also held that another numeral ""3"" is also

altered. In the promissory note, below the column witnesses, the name of P.W.2 is written and the same is scored off and the signature of the

attestors are found below the column ""witnesses"". The trial Court has held that the above alterations would affect the case of the plaintiff and that

the suit promissory note is vitiated by material alterations. The trial court failed to see that there is no specific plea in the written statement that the

suit promissory note is vitiated by material alterations. Except the allegation that the suit promissory note is a fabricated document, it is not

specifically pleaded that the suit promissory note is vitiated by material alterations. P.W.3, the scribe, has stated that he wrote the name of P.W.2

by mistake in the promissory note and thereafter, the same was scored off. The explanation given by P.W.3 for writing the name of P.W.2 below

the column witness has not been properly considered by the trial Court. The fact that the numerical ""9 & 3"" are written in thick ink need not

necessarily show that the suit promissory note was materially altered. As the defendants have not taken a plea that the suit promissory note is

vitiated by material alterations, it is not open to the trial Court to dismiss the suit on that ground. Further, the evidence of P.Ws 1 to 4 would

establish the case of the plaintiff that the suit promissory note was executed by the defendants. The trial Court without any materials has given a

finding that the defendants have put their signature in a blank paper and that due to enmity, the plaintiff has fabricated the suit promissory note. As

the findings of the trial Court are not based on evidence on record and as the findings are based on surmises, I hold that this Court has to

necessarily interfere with the said findings u/s 115 CPC. I hold that the suit promissory note and assignment are true and valid and supported by

consideration. Therefore, I hold that the plaintiff is entitled to a decree as prayed for.

In the result, the Civil Revision Petition is allowed with costs. The judgment and decree passed by the trial Court are set aside. The suit is

decreed as prayed for with costs.