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Sa142 of 2012 Full Order 417667
Sa142 of 2012 Full Order 417667
142 of 2012
CORAM
S.A.Nos.142 of 2012
and
M.P.No.1 of 2012
Vs.
R.Nallathambi .. Respondent/Appellant/Defendant
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Page No.1 of 14
S.A.No.142 of 2012
PRAYER : This Second Appeal is filed under Section 100 of C.P.C., against
the file of the Principal District Court, Namakkal, in reversing the judgment
and decree, dated 20.04.2009 made in O.S.No.295 of 2008 on the file of the
JUDGMENT
2. For the sake of convenience, the parties are referred to as per the
3. The plaintiff has filed the suit in O.S.No.345 of 2006 on the file
295 of 2008 on the file of the Sub Court, Rasipuram against the respondent
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Page No.2 of 14
S.A.No.142 of 2012
issuing pre-suit notice, dated 15.11.2006, the plaintiff filed the suit for
alia admitting the execution of the suit promissory notes. However, the
defendant raised plea that the above mentioned promissory notes had been
executed towards security for the loan borrowed, and that the loan due was
the plaintiff's wife. It is further alleged that the suit promissory notes were
not supported by consideration and the blank promissory notes were filled
up for the purpose of filing the suit in the year 2004. On the above
DW3 were examined besides marking Ex.B1 and Ex.B2. More so, Ex.C1 to
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Page No.3 of 14
S.A.No.142 of 2012
taking note of the admission as to the execution, the trial Court considered
Act and the authority of the holder in due course to fill up the promissory
notes under Section 20 of the Act, decreed the suit by the judgment and
of 2009 before the Principal District Court, Namakkal. First Appellate Court
has neither considered the admissions made in the pleadings and evidences
nor taken note of the statutory presumptions in favour of the plaintiff, but,
erroneously allowed the appeal holding that the thump impression of the
defendant was not obtained in Ex.A1 to Ex.A3 and that the signature in each
naked eye. Accordingly, lower Appellate Court reversed the judgment of the
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Page No.4 of 14
S.A.No.142 of 2012
trial Court and dismissed the suit by the judgment and decree, dated
Court, the plaintiff filed this second appeal before this Court and the
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Page No.5 of 14
S.A.No.142 of 2012
Court?”
the defendant/respondent.
10. The suit is based upon Exs.A1, A2 and A3 each one lakh.
signature in the pro-note and issuance of the pro-note are not in dispute. The
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Page No.6 of 14
S.A.No.142 of 2012
trial court has rightly invoked the presumption under the Negotiable
Instruments Act and called upon the defendant to repay the presumption
and is filing decreed the suit. However, I find that the lower Appellate
the presumption under the Negotiable Instruments Act and not followed
even burden of proof or onus of proof as stated in the Indian Evidence Act.
12(a). On perusal of the evidence of PW1 and PW2 and the written
statement filed by the defendant and the oral evidence of PW1, I find that
the execution and issuance of the pro-notes, viz., Ex.A1 to Ex.A3 are not in
dispute. In fact, the defendant has categorically admitted the same in the
the signature found in the suit documents have been admitted, there is no
need or necessity for the plaintiff to give explanation for not obtaining the
thump impression in the suit promissory note. There is no such law to get
the thump impression in the suit promissory note. There is no such law to
get the thump impression also in the promissory note, particularly, when the
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Page No.7 of 14
S.A.No.142 of 2012
Ex.A3, the first Appellate Court ought not to have compared the suit
documents by naked eye, as if, the defendant has denied execution and
therefore, based upon the above evidence both in oral and documentary
pleaded and evidence of the plaintiff side, I find that in terms of Section 4 of
the Indian Evidence Act, whenever it is provided by the Act that the Court
shall presume a fact, it shall record such fact as proved unless and until it is
Section 5 of the Indian Evidence Act to the principle behind Section 118 (a)
of the Negotiable Instruments Act, the Court shall presume that Ex.A1 to
13. It remains to be stated that once the execution of the suit pro-
notes are admitted by the plaintiff and the defendant's signature is admitted
Instruments Act, the authority implied by the signature in the blank pro-note
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Page No.8 of 14
S.A.No.142 of 2012
that the defendant so signing was bound to be the faulter in due course but
presumption, the burden of proof on the defendant in such a case would not
Evidence Act and cannot be held to be discharged merely on the fact that
Instruments Act is one of law, and thereunder, the Court below shall
presume inter alia that the promissory notes were made for consideration.
consideration is on the executant and hence, I find that the lower Appellate
Court has miserably failed to consider the pleading and evidence in the
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Page No.9 of 14
S.A.No.142 of 2012
proper prospective and has wrongly thrown the burden of proof on the
particularly, at the end of the part of the judgment clearly shows that the
learned Appellate Judge has nor even understood the facts of the case and
presumption under the Negotiable Instruments Act and it is the onus of the
have been noted by the lower Appellate Court basing upon the evidence of
PW1 and DW3-wife of PW1. It appears from the lower Court records that
on Court summons, the wife of PW1 was examined as DW3, it could have
been Court witness not the defendant witness. Secondly, she had deposed
regarding certain transaction taken between herself and defendant for the
construction of the house and the selling of the lands. Those transactions
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Page No.10 of 14
S.A.No.142 of 2012
handing over the document has not disputing the signature, however, for the
reasons best known the lower Appellate Court has entertained a suspicion
for not obtaining the thump impression of the defendant in Ex.A1 to Ex.A3,
Instruments Act that both the signature and thump impression has to be
obtained for a pro-note and the lower Appellate Judge has totally misguided
allowed the suit and granted suspension of order for attachment before
judgement.
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Page No.11 of 14
S.A.No.142 of 2012
17. Thus I find that the lower Appellate Court has erred in law in
rejecting the plaintiff's right to fill up the suit promissory notes under
authorized to fill up the blanks and to negotiate the instrument for a certain
Ex.A1 to Ex.A3 in his written statement and in his evidence before the
Court, the lower Appellate Court is not right in raising suspicion with
regard to the execution merely on the ground that the thump impression of
the defendant was not obtained in Ex.A1 to Ex.A3, particularly, when the
finding rendered by the lower Appellate Court that suit pro-note is not valid
in the absence of thumb impression is sustainable in law, more so, when the
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Page No.12 of 14
S.A.No.142 of 2012
defendant has not disputed the signature and hence, all the Substantial
19. In the result, this second appeal stands allowed. The judgement
is restored and the trial Court decree of attachment before judgment order
02.03.2022
Internet : Yes/No
Index : Yes/No
PJL
To
1.The Principal District Judge, Namakkal.
2.The Sub Judge, Rasipuram.
3.The Section Officer, V.R.Section, High Court, Madras.
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Page No.13 of 14
S.A.No.142 of 2012
RMT.TEEKAA RAMAN,J.,
PJL
Pre-Delivery Judgment in
S.A.No.142 of 2012
02.03.2022
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Page No.14 of 14