Sri K. Mathiarasan vs Sir B.R. Mohan Singh

A.S. Bopanna, J.—The Appellant herein is the Defendant in O.S. No. 8709/2003. The suit in question was filed by the Plaintiff seeking for a judgment and decree for recovery of the amount claimed in the plaint. The Defendant appeared and opposed the suit. The trial Court after considering the rival contentions has decreed the suit by its judgment dated 7.4.2007. The Defendant is therefore before this Court in this appeal.

Heard the learned Counsel appearing for the parties and perused the appeal papers including the records received from the trial Court.

Learned Counsel for the Appellant while assailing the judgment and decree of the trial Court would contend that the trial Court, in fact has committed an error in decreeing the suit. It is contended that the defendant had not borrowed any money from the plaintiff. The contention is that one Sri Govindappa had requested to retain the amount which had been collected as a fund and for the security of the same, the promissory note had been signed, but no consideration has passed from the Plaintiff to the Defendant. It is contended that though the Plaintiff and the Defendant were working in the same organisation viz., ITI Limited, there was no occasion whatsoever for the Defendant to borrow any money from the Plaintiff and as such the trial Court was not justified in decreeing the suit it is further contended that the Plaintiff apart from examining himself has not examined any other witness, even though the promissory note indicates the signature of a witness. Therefore the trial Court should have dismissed the suit for lack of satisfactory evidence.

Learned Counsel for the Respondent would however seek to justify the judgment and decree passed by the trial Court. It is contended that the signature on the promissory note has been admitted by the Defendant. Further, the reason for having advanced the amount has also been stated by the Plaintiff and in any case, it is not in dispute that the Plaintiff and the Defendant were known to each other and it is in that circumstance, the Defendant had borrowed money from the plaintiff. It is pointed out by the learned Counsel for the Plaintiff that even though it is contended on behalf of the Defendant that there was a transaction involving Sri Govindappa, no attempt was not made by the Defendant to examine the said Sri Govindappa to speak of the alleged transaction and as such the Defendant cannot take such contention in the present appeal. It is therefore contended that the trial Court after considering the documentary as well as the oral evidence available before it, has come to its conclusion and as such the judgment and decree does not call for interference.

In the light of what has been contended, a perusal of the papers would indicate that the Plaintiff had contended that he is an employee of ITI Ltd and the Defendant is an Officer working in the same organisation. The Plaintiff states that the Defendant had approached him on 1.4.2001 for lending a sum of Rs. 50,000/- as hand loan to incur the expenses towards BE Education and future education of his children The Defendant had also promised the Plaintiff that the amount would be paid immediately after his VRS Application is accepted and the benefits are paid to him. It is, in that context, the Plaintiff contends that since the Defendant has failed to repay the said amount, the Plaintiff is entitled to recover the said amount.

The Defendant on being served with suit summons had appeared and filed the written statement. The Defendant had denied the contentions put forth by the Plaintiff that he had received a sum of Rs. 50,000/- for his daughter''s education. It was contended by the Defendant that in any event, the Defendant would not have borrowed any money from his subordinates and therefore, the Plaintiff having advanced the money would not arise. It is also contended by the Defendant that when the signature was axed on the reverse side of the promissory note, the matter had not been typed therein. It is further contended by the Defendant that the amount which had been given to the Defendant is Govindappa''s money and had told the Defendant that he has to keep the money for safe custody. It is in that context the Defendant contends that he is not liable to pay the amount.

The trial Court based on the rival pleadings framed the issues for consideration as follows:

ISSUES

Whether the Plaintiff proves that on 1-4-2001 the Defendant by executing two demand promissory notes availed suit loan of Rs. 50,000/- agreeing to pay interest at the rate of 18% per annum?

What decree or order?

In order to discharge the burden cast on the plaintiff, the Plaintiff examined himself as PW, I and marked the documents at Exhs.P1 to P4. The Defendant examined himself as DW.1 and marked documents at Ex.D1 to D5.

The trial Court after analysing the evidence available on record has come to the conclusion that the Plaintiff has established the case and in that view, has decreed the suit. Though the interest was claimed at 18% p.a., the trial Court has awarded interest at 9% p.a. from the date of filing the suit, till the date of decree and at 6% p.a. thereafter.

In the light of the contentions urged by the learned Counsel for the parties, a perusal of the judgment at the outset would indicate that the trial Court in fact has made reference to the oral as well as the documentary evidence available on record. In order to consider as to whether the trial Court has in fact appreciated the same in its correct perspective, I have also re-appreciated the evidence available on record.

In this regard, the promissory note and the consideration receipt which have been produced and marked as Ex.P1 to P4 would indicate that the Defendant has affixed his signature both on the promissory note as well as the consideration receipt. In that context, a perusal of the contentions urged by the Defendant in the written statement and also the evidence tendered by the Defendant is to the effect that even though signature is admitted, the same was given as security for safe custody and the amount had not been received under the said document and the date was also not indicated. The aspect that when the signature on such document is admitted to have been signed by the Defendant, the same would draw certain presumption as contemplated u/s 118 of the Negotiable Instruments. Act and the same cannot be disputed.

Keeping this position of law in view, if the contention put forth by the Defendant is noticed, the Defendant has not flatly denied that no amount had been received by him. In fact, the justification put forth was that the Defendant received certain amount being the money of Sri Govindappa and the same was received for safe custody. In a matter of this nature, where there is initial presumption in law and the Plaintiff has also discharged the initial burden, the onus was on the Defendant to establish that in fact the money received by him is not the money indicated in the transaction under the promissory note and the consideration receipt, but the said amount belong to Sri Govindappa. In this regard, there is no dispute between the parties that Sri Govindappa was also an employee of the ITI Ltd and therefore, it was incumbent on the Defendant to establish the said contention, even though there was no specific issue framed by the trial Court. On this aspect when the Defendant had not tendered any evidence to dispel the initial presumption drawn in favour of the Plaintiff and the discharge of the initial burden by the plaintiff, the Defendant cannot subsequently contend that the trial Court was not justified in its conclusion. Therefore, if these aspects are kept in view, the mere production of the documents at Exhs. D-1 to D-4 by the Defendant to indicate that, the amount to the extent as stated by the Plaintiff was not borrowed by him for the purpose of educational requirement of his children would not come to the assistance of the Defendant since the averment of the Plaintiff is only the reason which had been put forth by the Plaintiff to receive the money. The Defendant cannot dispel such contention only by contending that such amount had not been borrowed by him since such amount had not been expended, more particularly where the Defendant has stated that the money received by him is that of Govindappa and not that of the plaintiff.

Therefore, considering these aspects of the matter, when the trial Court considered the evidence and has come to the conclusion and on reappreciation, when there is no other material to indicate that such a conclusion reached by the trial Court is perverse for want of evidence, I see no reason to interfere with the judgment and decree passed by the trial Court.

Hence the appeal being devoid of merit stands dismissed. No order as to costs.