S. Annapoorna and Others vs A.M.S. Ravichandran

G. Rajasuria, J.—This appeal is filed by the defendants as against the judgment and decree dated 20.12.2007 passed by the VII Additional

City Civil Court, Chennai, in O.S. No. 5670 of 2005, which was one for recovery of money. The parties, for the sake of convenience, are

referred to hereunder according to their litigative status and ranking before the trial Court.

The epitome and the long and short of the relevant facts absolutely necessary and germane for the disposal of this appeal would run thus:

(i) The respondent herein, as plaintiff, filed the suit based on the suit promissory note-Exhibit A-1 dated 26.8.2002, on the main ground that one

Subbiah lent a sum of Rs. 6,00,000/- to the deceased Ramaraju - the propositus of the defendants, who are his wife, son and daughter

respectively and who inherited his properties.

(ii) The said Subbiah made over the promissory note in favour of the original plaintiff for valuable consideration found set out in the endorsement on

the back of the pro-note itself;

(iii) Whereupon both the assignor and assignee informed the defendants, who happened to be the legal heirs of the deceased promisor, to pay the

dues under the said promissory note, for which, there was no positive response, because they did not even choose to receive those

communications, which were all returned as door locked, refused etc. Hence, the suit.

D1 filed the written statement, which was adopted by D3. D2 remained ex-parte. The gist and kernel of the written statement would run thus:

The suit pro-note is a forged and fabricated one. The deceased Ramaraju was financially well and he had no necessity at all to borrow such a huge

sum hardly a month anterior to his demise. Accordingly, the defendants prayed for the dismissal of the suit.

Whereupon, the trial Court framed the issues.

During trial, on the plaintiff''s side, the plaintiff examined himself as P.W.1 along with P.W.2-Subbiah and Exhibits A-1 to A-8 were marked. On

the defendants'' side, the 3rd defendant examined herself as D.W.1 and no document was marked.

Ultimately, the trial Court decreed the suit.

Being aggrieved by and dissatisfied with the judgment and decree of the trial Court, the present appeal has been filed by the defendants on

various grounds.

The learned senior counsel for the appellants/defendants, placing reliance on the grounds of appeal would advance his arguments, the pith and

marrow of them would run thus:

(i) Absolutely there is no pint or jot of evidence to prove that the alleged promisee, namely, Subbiah had the financial wherewithal to pay a sum of

Rs. 6,00,000/- to the deceased Ramaraju, who was financially well and was not in need of any money.

(ii) The very fact that at the fag end of the life of Ramaraju such pro-note alleged to have emerged, would speak volumes that all is not well with

the case of the plaintiff. Ramaraju raised construction at Bangalore during his life time well before the alleged date of borrowal. There is an

unexplained delay in filing the suit by the plaintiff.

(iii) Hardly a month after the alleged emergence of the pro-note, Ramaraju died. However, thereafter no notice was sent to the legal heirs of

Ramaraju within a reasonable time. But on the other hand, the alleged promisee Subbiah, issued notice only during the year 2003, as per his own

version. Absolutely, there could have been no rhyme or reason on the part of Subbiah in issuing such a delayed notice, if at all the transaction, as

alleged by him was true.

(iv) A genuine lendor of the money, on seeing that the borrower died, would swing into action and take steps to collect the amount; after meeting

with his failure in getting even his notice served on the legal heirs, he kept quiet till the verge of the expiry of the limitation period for filing suit i.e.

three years.

(v) Scarcely 10 days before the expiry of the limitation period, the alleged assignment by Subbiah in favour of the plaintiff emerged and thereafter,

hurriedly a notice was alleged to have been sent by both assignor and assignee to the plaintiff. These are murky situations which remain unexplained

by the plaintiff.

(vi) Even though the plaintiff claimed that he obtained huge amount in the process of selling his immovable property, and with that he paid Subbiah

and got the pro-note endorsed in his favour, yet no objective evidence was adduced by him. Apart from the alleged assignor and assignee, none

was examined. Not even the witness to the pro-note was examined.

(vii) The expert opinion obtained by this Court, at the appellate stage, also in no way helps the plaintiffs case.

Accordingly, the learned senior counsel for the appellants/defendants would pray for setting aside the judgment and decree of the trial Court and

for dismissing the suit.

In a bid to make mince meat of the arguments as put forth and set forth on the side of the appellants/defendants, the learned counsel for the

respondent/plaintiff would pilot his arguments, the pith and marrow of the same would run thus:

(i) In the written statement the defendants have not chosen to raise the plea to the effect that the promisor- Subbiah had no financial wherewithal to

lend such a sum of Rs. 6,00,000/-to Dr. Ramaraju.

(ii) The trial Court took into account the fact that Ramaraju was known to Subbiah for a pretty long time and because of that alone, Subbiah did

choose to lend money in favour of Ramaraju, who was practicing orthopedics by having clinic in Ashok Nagar, Chennai as well as in Arakkonam.

(iii) Neither Subbiah-P.W.2 nor the plain-tiff-P.W.1 was enjoined to produce evidence to prove their financial ability because the presumption u/s

118 of the Negotiable Instruments Act was very much available in their favour.

(iv) Even though presumption u/s 118 of the N.I. Act is a rebuttable presumption, yet the defendants have not shown any circumstances or

probabilities capable of rebutting such presumption and in such a case, the plea of the defendants was to be rejected and accordingly, the trial

Court rejected the pleas.

(v) The expert opinion is in favour of the plaintiffs only and this Court vide order dated 27.11.2009 in M.P. No. 1 of 2009, after considering the

pro-et contra, sent the disputed signatures as well as the admitted signatures found in the passport produced by the defendants, and the various

documents produced by the plaintiff.

(vi) It is too late in the day on the part of the defendants to contend that the sample signatures in the documents furnished by the plaintiff were not

admitted by the defendants.

(vii) The deposition of D.W.1 (D3) would expose her false plea and in fact, she pleaded total ignorance about the case and she also candidly

admitted that she could not say that his father either borrowed or not borrowed the suit amount.

Accordingly, the learned counsel for the respondent/plaintiff would pray for the dismissal of the appeal.

The points for consideration are as under:

(i) Whether the plaintiff was enjoined to prove by adducing clinching evidence concerning the financial wherewithal of the original promisor in

lending a sum of Rs. . 6,00,000/- in favour of Ramaraju and whether the plaintiff was duty bound legally to prove that he was having the financial

ability to pay Rs. 6,00,000/- and odd in favour of the original promisee, namely, Subbiah and obtained the pro-note in his favour?

(ii) Whether the expert opinion in this case has to be accepted or not in view of the objections raised by the defendants that wholesome admitted

signatures of the deceased Ramaraju were not sent by the Court to the expert for making comparison of the disputed signatures with the admitted

signatures?

(iii) Whether there is any perversity or illegality in the judgment and decree of the trial Court?

All these points are taken together for discussion, as they are interwoven and interconnected, interlinked and entwined with one another.

At the outset itself, I would like to refer to the precedents emerged u/s 118 of the Negotiable Instruments Act.

The learned senior counsel for the appellants/defendants would cite the following decisions:

(i) Kundan Lal Rallaram v. Custodian, Evacuee Property, Bombay AIR 1961 SC 1316(1)

(ii Anumolu Narayana Rao and Another by their mother and guardian Anumolu Ramadevamma Vs. Ghattaraju Venkatappayya and Others,

(iii Chinnasamy Vs. Perumal,

(iv) Mallavarapu Narasamma and Others Vs. Boggavarapu Bulli Veerraju,

(v) unreported judgment of the Calcutta High Court in Punjab National Bank v. Britannia Industries Ltd.

The learned counsel for the respondent/plaintiff would cite the following precedent.

Alex Mathew Vs. Philip Philip,

A cumulative reading of the aforesaid precedents would leave no doubt in the mind of the Court that the presumption as contemplated u/s 118

of the Act is a rebuttable presumption. However, on the defendants raising prima facie doubt about the financial ability of the promisee as well as

the endorsee of the promissory note, the latter are bound to prove the factum of the pro-note as well as the endorsement having been supported

by consideration.

Even though in the written statement there is no specific plea raised by the defendants regarding the financial ability of the original promisee as

well as the endorsee-the plaintiff in paying their respective amounts, yet during the cross-examination, the defendants specifically challenged the

financial ability of P.W.1 and P.W.2.

In fact, P.W.1 would come forward with the specific reply during cross-examination that in the process of himself selling the immovable

property, he came into possession of money, which was capable of being paid to the original promisee-P.W.2, but no evidence was produced.

Similarly, P.W.2-the original promisee would state that he was financially sound and had the ability to pay a sum of Rs. . 6,00,000/- in favour

of the original promisor, namely, deceased Ramaraju.

One important fact should be taken note of. Here the defendants are the legal heirs of the deceased Ramaraju, who died even as per the case

of the plaintiff, a month after the emergence of the suit promissory note. In the promissory note, it is found specified as though the amount was lent

so as to enable that Ramaraju to meet his family expenses and to raise a building in Bangalore. No doubt, D.W. 1 (D3) pleaded ignorance about

the period during which the construction was raised by Ramaraju. However, one fact is clear that the said Ramaraju could not have availed the

loan amount as contemplated in Exhibit A-1 for raising construction, because he died his death within a month from the emergence of the passport.

It is the consistent case of the defendants and partly admitted by the plain-tiff-P.W.1 and also P.W.2 that the original promisor was a Doctor

by profession, who had clinic at Ashok Nagar, Chennai, as well as at Arakkonam. In such a case, it became imperative on the part of the plaintiff

to adduce evidence that the deceased Ramaraju was in dire need of money and that he borrowed it from Subbiah, who had the financial ability to

pay in cash in one lumpsum on that day of emergence of Exhibit A-1.

It is not the case of P.W.2 that Exhibit A-1-the pro-note emerged because of certain past transactions. But, it is his specific case that on the

date of emergence of pro-note, in one lumpsum, by way of cash, the said sum of Rs. . 6,00,000/- was paid; however, he would state that during

the year 1993 itself he sold his laboratory and thereafter, he was doing some business, but he could not produce any documentary evidence except

Exhibit A7-the memorandum and articles of association of Shakthi Laboratories Private Limited to prove his financial ability.

Similarly, P.W.1 would claim that he paid a sum of Rs. . 9,00,000/-, as he was in possession of the advance amount, which he received in

connection with his attempt to sell his immovable property and in that connection also no evidence was adduced.

If both the amounts are meager amounts, then the parties concerned could very well, by proving their status, create a presumption that they

were financially sound and that they had the ability to pay the amounts respectively referred to in the pro-note as well as in the endorsement. But,

the amounts referred to are huge and in such a case, I am of the view that they are enjoined to produce positive evidence in that regard.

The learned senior counsel for the appellants/defendants would submit that the plaintiff cannot be allowed to fill up the lacuna and adverse

inference should be drawn as against him because he did not adduce evidence to prove his financial ability.

I am of the considered view that the question of filling up lacuna would not arise in this case, because I recollect the popular proposition that

every trial is a voyage of discovery, in which truth is the quest.

This is a case not between the original promisor and the original promisee and that fact should not be lost sight of. The alleged original

promisee made over the pro-note in favour of the plaintiff, who is an assignee/endorsee/holder and the defendants are the legal heirs of the

deceased promisor. As such, the original parties to Exhibit A1 are not the litigants before the Court and in such a case, when there is some dearth

of evidence in arriving at the truth, naturally opportunity has to be given to the parties concerned to enlighten the Court fully.

Technicalities and punctilious of Court procedures are only handmaids of justice and for the purpose of rendering full justice, cutting across

technicalities, the Court has to render justice. I am of the considered view that in the facts and circumstances of this case, opportunity has to be

given to the plaintiff to adduce additional evidence and the defendants also should be given opportunity to rebut, if any fresh evidence, is adduced

on the side of the plaintiff.

A mere poring over and perusal of the judgment of the lower Court would display and demonstrate that the trial Court was carried away by

the fact that this is a simple suit for pro-note without really understanding that the fight is not between the original contracting parties at all, but it is

between their respective representatives, who stepped into the shoes of the original promisee and the original promisor.

The Court also assumed as though absolutely there was nothing to doubt about the presumption contemplated u/s 118 of the Act in favour of

the plaintiff.

The learned senior counsel for the appellants/defendants brought to the knowledge of this Court that the finding of the trial Court was one not

based on objective evidence. In fact, the lower Court simply, without referring to any evidence held that the original promisee had the financial

ability and that there was nothing to doubt about it.

At this juncture, I hark back to the following maxim:

''in re dubia mais infitiatio quam affirmatio intelligenda'' - In a doubtful matter, the negation is to be understood rather than the affirmation.

The crux of the above maxim is that if evidence is lacking, it is the negative that should be presumed and not the affirmative. It appears, even

though there is no direct evidence on the point, the lower Court held as though the plaintiff proved the financial ability of the original promisee to

lend such amount. Hence, in the facts and circumstances of this case, I am of the view that opportunity has to be given to the plaintiff to adduce

evidence on the aforesaid line.

The learned senior counsel for the appellants/defendants also would submit that in the event of this Court remanding the matter back to the

lower Court, all the issues may be kept open, so that parties would have the opportunity of arguing on all points by having one more opportunity

before the trial Court.

At the appeal stage, my learned predecessor thought fit to refer the disputed signatures of the original promisor in the promissory note for

expert''s opinion. In that connection, he passed the order dated 27.11.2009, in respect of which, there were some arguments for and against.

The learned senior counsel for the defendants would submit that the sample documents, except the pass-port, ought not to have been relied on

by the expert for comparison purpose. Whereas, the learned counsel for the plaintiff would submit that whatever earlier order passed by my

learned predecessor was final and this Court''s observation that the sample signatures were all admitted signatures cannot be disputed now by the

appellants/defendants.

Be that as it may. At present, I do not give my final verdict on the expert''s opinion and I leave it to the lower Court itself to apply its mind on

the evidence available and decide, after hearing both sides on that, so that, parties would have due opportunity of putting their case fully before the

trial Court.

Accordingly, the aforesaid points are decided to the effect that the plaintiff shall have the liberty to adduce evidence on the aforesaid line and

the defendants also should be given opportunity to rebut the same. With that, the judgment and decree of the trial Court is set aside and the matter

is remitted back to the trial Court for the aforesaid purpose. The trial Court shall do well to see that the matter is disposed of within a period of

three months from the date of receipt of a copy of this Court. The parties shall appear before the trial Court on 20.4.2012.

On hearing this judgment, the learned counsel for the plaintiff would submit that this Court might clarify that regarding expert''s opinion is

concerned the parties are at liberty to argue on that and not to once again go for any other expert''s opinion or for any other additional opinion.

I would like to clarify that before this Court itself the expert was examined with regard to the opinion rendered by her and no further expert

opinion in that regard is required, and it is for the parties to argue relating to the legal acceptability or otherwise of the expert''s opinion.

During the pendency of the appeal, while granting stay this Court passed a conditional order, as per which, the appellants/defendants deposited

a sum of Rs. . 3,00,000/- and be it continue to remain as such in the deposit till the disposal of the case by the lower Court.

The entire records, including the evidence recorded by this Court should be sent to the trial Court, immediately. The appeal is disposed of

accordingly. However, there is no order as to costs. Consequently, connected miscellaneous petition is closed.