T. Balasubramanian vs M. Kanthasamy

G. Rajasuria, J.—This second appeal is focussed by the defendant, inveighing the judgment and decree dated 21.03.2011 passed by the

learned Additional District Judge, Fast Track Court No. 1, Poonamallee in A.S. No. 33 of 2009 in partly modifying the judgment and decree

dated 29.10.2008 passed by the learned Subordinate Judge, Poonamallee in O.S.No. 62 of 2006. The parties, for the sake of convenience, are

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

A summation and summarisation of the germane facts, absolutely necessary for the disposal of this second appeal would run thus:

a. The plaintiff filed the suit seeking the following reliefs:

- to pass a judgment and decree against the defendant

- directing the defendant to pay to the plaintiff a sum of Rs. 1,88,000/- [Rupees one lakh and eighty eight thousand only] with interest at 18% per

annum on the principal of Rs. 1,33,000/- from the date of plaint till the date of realisation

- and for cost of the suit

(extracted as such)

based on the promissory note and also on the ground that hand loan was given by the plaintiff to the defendant.

b. The defendant resisted the suit by filing the written statement.

c. Whereupon issues were framed by the trial court.

d. Up went the trial, during which, the plaintiff examined himself as PW1 along with PW2 and marked Exs. A1 to A7. The defendant examined

himself as DW1 and marked Ex. B1.

e. Ultimately, the trial court decreed the suit.

f. Being aggrieved by and dissatisfied with the judgment and decree of the trial court, first appeal was filed by the defendant and the first appellate

court modified the decree passed by the trial court by passing decree based on Ex. Al the promissory note and dismissed the suit based on hand

loan.

g. Challenging and impugning the judgments and decrees of both the courts below, this second appeal has been focussed by the defendant on

various grounds suggesting the following substantial questions of law.

Whether the courts below are wrongly considered the Ex. B1 admitted signature of the plaintiff?

Whether the courts below are wrongly considered the Ex. A2 and A6, no reply from the defendant?

Whether the courts below have wrongly admitted xerox copies of the documents which is marked as Exs. A4 and Ex. A5 are correct?

(extracted as such)

Heard both sides.

The learned counsel for the appellant/defendant placing reliance on the grounds of second appeal would advance his argument, which could

pithily and precisely be set out thus:

(i) Ex. B1 the signature in the discharge receipt was admitted by the plaintiff even then, both the courts below did not give due importance to Ex.

B1, but simply decreed the suit based on Ex. A1, the pro-note.

(ii) The defendant''s son was suffering from brain tumour and hence the defendant had been attending his son ever since 2005 till 2012 and

because of his pre-occupation with his son''s health he could not give reply to the pre-suit notice and in the written statement he could not set out

those details as only his Advocate was managing the case.

(iii) The plaintiff has not chosen to explain as under what circumstances he put Ex. B1, in that receipt. After signing so, he cannot disown the

contents of the discharge receipt. But both the courts below failed to take note of all these salient features but simply accepted the case of the

plaintiff for gospel truth and decreed the suit warranting interference in second appeal.

Per contra, in a bid to torpedo and slam down the pleas as put forth on the side of the appellant, the learned counsel for the respondent/plaintiff

would pyramid her argument, which could succinctly and precisely be set out thus:

(i) The contentions as put forth on the side of the defendant are totally unbelievable and no one would be able to digest such pleas.

(ii) Had really Ex. B1 emerged as narrated by the defendant, then there is no knowing of the fact as to what made him not to give reply to the pre-

suit notice.

(iii) Over and above that the written statement is silent as silence could be relating to Ex. B1 and the discharge receipt and that was why, the trial

court appropriately and appositely, legally and correctly held that such receipt is nothing but an artifact of fraud committed by the defendant and no

credence was attached to it. The appellate court also correctly upheld the findings of the trial court and this court in second appeal cannot re-

appreciate the findings of fact given by both the courts below and as such, no question of law much less substantial question of law is involved in

this second appeal for consideration.

Accordingly, she would pray for the dismissal of the second appeal.

Considering the pro et contra, I am of the considered view that Ex. B1 is the crucial document, which the defendant relies upon for getting the

second appeal admitted.

It is therefore just and necessary to see under what circumstances, as per the defendant, Ex. B1 emerged. As has been correctly pointed out by

the learned counsel for the plaintiff, there was no reply to the pre-suit notice at all. In the written statement, the defendant went to the extent of

denying the very execution of the Ex. A1 the pro-note itself and having taken such a stand, quite antithetical to it, he would mark holus bolus Ex.

B1 the signature of the plaintiff in a document during cross-examination of PW1. According to the learned counsel for the plaintiff, the signature in

Ex. B1 was marked in a dubious manner and that too quite antithetical to the law, by showing only the signature portion in the document and hiding

to the plaintiff the rest of it.

I could see considerable force in the submission made by the learned counsel for the plaintiff.

I would like to re-collect and call up the judgment of the Hon''ble Apex Court reported in Kapil Corepacks Pvt. Ltd. and Others Vs. Shri

Harbans Lal (since deceased) through Lrs., . Certain excerpts from it would run thus:

In this case the appellant-defendants denied having signed/executed any agreement/receipt in favour of the respondents. In the examination

under Order 10 Rule 2, the Court did not ask the second appellant whether he had signed the document or not, by showing the document. What

was done was confrontation of a signature alone without disclosing the document. When so confronted, the second appellant admitted the

signature shown as his signature. But that is not an admission of execution of agreement/receipt....

The practice of getting only the signature portion marked in a document hiding the rest of the portion of the document is deprecated. If at all any

signature has to be got marked, then the entire document should be shown to the witness concerned. But, in this case, that was not done. Over and

above that, Order 8 Rule 1-A(3) of the CPC would contemplate that any document, if the defendant is to file, it should be filed along with the

written statement as otherwise only with the permission of the court, such document could be filed. No doubt, I am fully aware of the fact that

during cross examination, certain portions could be marked by the opponent u/s 145 of the Indian Evidence Act provided the witness admits it. In

this case, only the signature was admitted and that too the signature was got marked in a non-legal manner, which I would deprecate that such a

practice should not be adhered to by courts.

Not to put too fine a point on it, no steps were taken by the defendant to get marked the discharge receipt as per law but he got marked only

the signature Ex. B1 in that alleged receipt. As such, it would not amount to marking the receipt.

I would like to recollect and call up the following maxims:

(i) affirmantis est probare - He who affirms must prove.

(ii) Affirmanti non neganti incumbit probatio: The burden of proof lies upon him who asserts and not upon him who denies.

(iii) Favorabiliores rei potius quam actores habentur - Defendants are held to be in a more favourable position than pursuers.

Accordingly, the burden of proof is on the plaintiff to prove the case.

Here, at the first instance, no doubt, the plaintiff came forward with a case as though the suit was laid based on both Ex. A1 and hand loan.

The theory of hand loan as put forward by the plaintiff was negatived and that it does not mean that the entire case of the plaintiff has to be

rejected. The court is not expected to close its eyes and pass orders. In such a case, I could see no perversity in the findings given by both the

courts in upholding the validity of Ex. A1. In fact, during trial, the defendant himself had ''U'' turn and about turned by putting forth Ex. B1. The

theory of the defendant during trial was that in fact, the plaintiff lent money under Ex. A1, but, it was discharged by the defendant.

A mere running of the eye over the written statement would clearly evince and evidence that, it was not the case of the defendant at all. As

such, quite antithetical to his case in the written statement, the defendant tried to put forward a different case, which was appropriately and

appositely negatived by both the courts below, warranting no interference in this second appeal.

I would also like to fumigate my mind with the following recent decision of the Hon''ble Apex Court reported in Union of India (UOI) Vs.

Ibrahim Uddin and Another, an excerpt from it would run thus:

Section 100 CPC provides for a second appeal only on the substantial question of law. Generally, a second appeal does not lie on question of

facts or of law. In State Bank of India and Others Vs. S.N. Goyal, , this Court explained the terms ""substantial question of law"" and observed as

under: (SCC p. 103, para 13)

13....The word ""substantial"" prefixed to ''question of law'' does not refer to the stakes involved in the case, nor intended to refer only to questions

of law of general importance, but refers to impact or effect of the question of law on the decision in the lis between the parties. ''Substantial

questions of law'' means not only substantial questions of law of general importance, but also substantial question of law arising in a case as

between the parties............ any question of law which affects the final decision in a case is a substantial question of law as between the parties. A

question of law which arises incidentally or collaterally, having no bearing on the final outcome, will not be a substantial question of law......There

cannot, therefore, be a straitjacket definition as to when a substantial question of law arises in a case.

(emphasis added)

In the same precedent, the following decisions are found referred to concerning the entertaining of second appeals.

(1 Sir Chunilal V. Mehta and Sons, Ltd. Vs. The Century Spinning and Manufacturing Co., Ltd.,

(2) Vijay Kumar Talwar Vs. Commissioner of Income Tax, Delhi,

(3) AIR 1947 19 (Privy Council)

(4) (1949) 17 ITR 269

(5) Oriental Investment Co. Ltd. Vs. Commissioner of Income Tax, Bombay,

(6) AIR 192 SC 1604 [Jagadish Singh v. Natthu Singh]

(7) Prativa Devi Vs. T.V. Krishnan,

(8) Smt. Satya Gupta Alias Madhu Gupta Vs. Brijesh Kumar,

(9) Ragavendra Kumar Vs. Firm Prem Machinary and Co.,

(10) Molar Mal (Dead) Through L.Rs. Vs. M/s. Kay Iron Works(P) Ltd.,

(11) Bharatha Matha and Another Vs. R. Vijaya Renganathan and Others,

(12) Dinesh Kumar Vs. Yusuf Ali,

(13) Jai Singh Vs. Shakuntala,

(14) Kashmir Singh Vs. Harnam Singh and Another,

A mere perusal of the said judgment would display and demonstrate that the second appeal cannot be entertained as a matter of course.

No doubt, the learned counsel for the appellant/defendant was persistent in his stand for getting the matter remanded to the trial court for

deciding the issues. It has to be held that remanding the matter back, is not a matter of course and this has become a common or garden principle

of law.

In view of the reasons adhered to by me supra, absolutely there is no ground for remanding the matter back to the trial court.

However, what I would like to observe is that pendente lite interest was awarded at the rate of 18% per annum by the trial court, which in my

considered opinion appears to be on the higher side. The loan lent was not for commercial purpose. In such a case, in the facts and circumstances

of the case, the trial court could have done well by awarding only 6% interest and the first appellate court also could have rectified the mistake

committed by the trial court. But the trial court awarded 18% interest from the date of filing of the suit till its realisation, but the first appellate court

negatived the plea of hand loan, put forth by the plaintiff and awarded 18% interest per annum from the date of execution of pro-note till the date

of decree and 6% interest per annum till the realisation but failed to reduce the pendente lite interest.

Hence, I would like to reduce the pendente lite interest from 18% to 6%, in view of the fact that the defendant met with some unfortunate

incident in his life as his son himself died due to ill-health. Except to that extent, I do not find any interference with the judgments and decrees

passed by both the courts below. With the above direction, this second appeal is disposed of. No costs. Consequently, the connected

miscellaneous petition is closed.