Negotiable Instrument – One of the primary conditions of law is that the person signing should deliver the instrument to another – Further the person so signed is having intention that the Bill should be filled up by anybody. A. Negotiable Instruments Act, 1881 Sections 4 and 20 Validity of Pro-Note – Plaintiff filled Pro-Note after receiving Defendant’s signature on paper – Intent that Bill can be filled by anybody is required – Intention to convert incomplete instrument as Pro-Note, authorization by Defendant cannot be presumed – Manner of writing and lack of evidence as to handing over signed paper creates doubt about genuineness of transaction – Appeal allowed. [Paras 20 and 21]
Law Finder Live !!
This judgement ranked 1 in the hitlist.
photo_camera
picture_as_pdf
description
stop
note_add
M. Ponnuthaiammal v. V. Alagarsamy Naicker, (Madras)(Madurai Bench) : Law Finder Doc Id # 1495217
2019(3) CTC 590 : 2019(200) AIC 902
MADRAS HIGH COURT
(Madurai Bench)
Before:- R. Pongiappan, J.
S.A.(MD) No.508 of 2009. D/d. 14.02.2019.
M. Ponnuthaiammal – Appellant
Versus
V. Alagarsamy Naicker – Respondent
For the Appellant :- N. Dilip Kumar, Advocate.
For the Respondent :- S. Parthasarathy, Advocate.
NUTSHELL
Negotiable Instrument – One of the primary conditions of law is that the person signing should deliver the instrument to another – Further the person so signed is having intention that the Bill should be filled up by anybody.
A. Negotiable Instruments Act, 1881 Sections 4 and 20 Validity of Pro-Note – Plaintiff filled Pro-Note after receiving Defendant’s signature on paper – Intent that Bill can be filled by anybody is required – Intention to convert incomplete instrument as Pro-Note, authorization by Defendant cannot be presumed – Manner of writing and lack of evidence as to handing over signed paper creates doubt about genuineness of transaction – Appeal allowed.
[Paras 20 and 21]
B. Indian Evidence Act, 1872 Section 145 Deposition of some Witnesses in some other Suit – Such deposition could be marked through such Witnesses only – It can be used only for corroborating or for contradicting the evidence given by the same person before the Trial Court – Marking of copy of deposition of Third party itself is not in accordance with law of evidence.
[Para 22]
JUDGMENT
R. Pongiappan, J. – This Second Appeal has been filed by the Appellant/Defendant against the Judgment and Decree, dated 16.8.2005 made in A.S. No.88 of 2004 on the file of the learned Principal District Judge, Virudhunagar District at Srivilliputhur.
2. The Respondent herein filed a Suit in O.S. No.289 of 2001 on the file of the learned Subordinate Judge, Aruppukottai, seeking a direction to the Defendant to pay a sum of Rs. 1,35,800 to the Plaintiff and to pay Interest for a sum of Rs. 1,00,000 out of Rs. 1,35,800 at the rate of 12% p.a. from the date of filing of the Suit till the date of realization. The learned Subordinate Judge, Aruppukottai, by Judgment and Decree, dated 23.10.2003, dismissed the Suit with costs.
3. Aggrieved over the same, the Respondent herein filed an Appeal in A.S. No.88 of 2004 before the learned Principal District Judge, Virudhunagar District at Srivilliputhur. By the Judgment and Decree dated 16.8.2005, the learned Principal District Judge, Srivilliputhur, by observing that the Pro-Note which was marked as Ex.A1 proved the fact that the Defendant/Appellant received the Suit amount from the Plaintiff/Respondent, allowed the Appeal with costs.
4. Aggrieved by the same, the Defendant herein has filed the present Second Appeal.
5. For the sake of convenience, the parties are referred to as per the ranking before the Trial Court.
6. The averments made in the Plaint in brief as follows:
The Defendant, on 4.7.1998, borrowed a sum of Rs. 1,00,000 from the Plaintiff, for her Family expenses and for her Business purposes and executed a Promissory Note in favour of the Plaintiff on the same day. The Defendant also agreed to pay the said amount with Interest at the rate of 12% p.a. In spite of repeated demands, the Defendant did not turn up to repay the Suit amount. On 11.6.2001, the Plaintiff sent a Notice through his Advocate calling upon the Defendant to repay the Suit amount with Interest. The Defendant acknowledged the said Notice on 12.6.2001. But, she did not pay the amount sofar. Hence, the Suit.
7. The averments made in the Written Statement filed by the Defendant in brief are as follows:
The Defendant did not borrow any amount from the Plaintiff and she did not execute any Promissory Note in favour of the Plaintiff. The averments made in the Plaint by the Plaintiff that on 4.7.1998, the Defendant borrowed a sum of Rs. 1,00,000 as a debt is false. Only on 9.8.1995, the Defendant borrowed a sum of Rs. 75.000 from the wife of the Plaintiff. After receiving the said amount, she executed a Promissory Note in favour of the wife of the Plaintiff. In the month of January 1999, by using force, the Plaintiff and his wife obtained her signature in some papers and by using the same, the Suit Pro-Note was fabricated by the Plaintiff. In fact, only in order to extract more money from the Defendant, the Suit has been filed. The Plaintiff did not give any reply to the Notice issued by the Defendant to the wife of the Defendant. Apart from this Suit, the sons of the Plaintiff had filed the Suit against the Defendant in O.S. No.288 of 2001 and O.S. No.290 of 2001. Hence, the Suit filed by the Plaintiff is liable to be dismissed.
8. During the trial, on the side of the Plaintiff, the Plaintiff examined himself as PW1 and one Dinakaran, who is a Witness to the Suit Pro-Note, was examined as PW2 and three documents were marked as Exs.A1 to A3. On the side of the Defendant, the Defendant examined herself as DW1 and three documents were marked as Ex.B 1 to B3.9. The learned Subordinate Judge, Aruppukottai, after considering the materials placed before him, found that the Suit Pro-Note marked as Ex.A1 is not in accordance with the Negotiable Instruments Act and hence, the Plaintiff has not proved his case and dismissed the Suit.
10. In the Appeal filed by the Plaintiff, the learned Principal District Judge, Virudhunagar District at Srivilliputhur, observed that Ex.A1 is having the character and elements of Pro-Note and accordingly, the Plaintiff is entitled to claim the Suit amount from the Defendant and hence, allowed the Appeal, directing the Defendant to pay the Suit amount to the Plaintiff along with interest.
11. This Court, while admitting the Second Appeal, has formulated the following Substantial Questions of Law for consideration:
(i) Whether Ex.A1 has been treated as Promissory Note satisfying the ingredients of section 4 of the Negotiable Instruments Act ?
(ii) Whether Ex.B3 is admissible in evidence when there are specified admissions about its contents by the Plaintiff in his evidence ?
(iii) Whether not the admission of the Plaintiff that Ex.A1 is an inchoate instrument, disprove his case about the execution of the Pro-Note by the Defendant ?
Questions 1 & 3:12. The learned Counsel appearing for the Appellant/Defendant contended that the manner of execution in Ex.A1 is unnatural and the same is not having any character as described under section 4 of the Negotiable Instruments Act. But, the learned First Appellate Court, without considering the same, believed that Ex.A1 is having the character of Pro-Note and allowed the Appeal.
13. On the other hand, the learned Counsel appearing for Respondent/Plaintiff contended that as the signature found in the Pro-Note was admitted on the side of the Defendant, thereby, the Plaintiff/respondent is entitled to fill the Pro-Note as per section 20 of the Negotiable Instruments Act. Hence, the Plaintiff is entitled to claim the Suit Pro-Note amount from the Defendant.
14. The learned Counsel for the Respondent/Plaintiff further submitted that the Pro-Note is having the required ingredients as per section 4 of the Negotiable Instruments Act. Hence, the Lower Appellate Court has come to the correct conclusion that Ex.A1 is having the character and elements of Pro-Note and accordingly, the Plaintiff is entitled to claim the Suit amount from the Defendant. Therefore, no interference is required to be called for.
15. In order to appreciate the contention of the learned Counsel appearing for the Respondent/Plaintiff that the Pro-Note is having the required ingredients as per section 4 of the Negotiable Instruments Act, it is relevant to consider the essential requisites of a Promissory Note/Pro-Note:
(i) It must be in writing and signed by the maker.
(ii) It must contain an unconditional promise to pay a sum certain in money only, and nothing more.
(iii) It must be payable on demand or at a fixed or determinable future time.
(iv) It must be payable to, or to the order of a specified person or to the bearer.
16. Now, a bare perusal of Ex.A1-Pro-Note, would go to show that the Suit Pro-Note is having the required ingredients as mentioned in section 4 of the Negotiable Instruments Act. However, the manner in writing has created a doubt over the Suit Pro-Note.17. In the Written Statement filed by the Defendant, she had not raised any specific plea that the signature found in the Pro-Note does not belong to her; further, at the time of cross-examination, the Defendant had specifically denied that the signature found in the Pro-Note does not belong to her. However, in the Written Statement as well as in the chief-examination of DW1, the Defendant specifically admitted that after obtaining her signature in the blank paper, the same was converted by the Plaintiff as Pro-Note. Accordingly, so far as the signature in the Pro-Note is concerned, the Defendant/Appellant had taken an inconsistent plea.
18. In this case, Ex.A1-Promissory Note/Pro-Note is a crucial document. From the reading of the above said Ex.A1-Pro-Note, it appears that the witnesses, namely, S. Dinakaran and K. Setthur signed their signatures in the Pro-Note by using different ink. Furthermore, in the last portion of Pro-Note, it was mentioned as VERNACULAR MATTER. But, the said Gajendiran had not signed in the Pro-Note. Moreover, the Witnesses signed in the Pro-Note are putting their signatures before obtaining the signature from the Defendant in the Suit Pro-Note. This also created a doubt about the genuinity of Pro-Note.
19. In this aspect, the learned Counsel appearing for the Respondent/Plaintiff contended that according to section 20 of the Negotiable Instruments Act, the Plaintiff is entitled to fill the Pro-Note after receiving the signature in the paper.
20. Now, according to Section 20 of Negotiable Instrument Act, one of the primary conditions of law is that the person signing should deliver the instrument to another. Further, the person so signed is having intention that the Bill should be filled up by anybody. Usually, an incomplete instrument is delivered for some other purpose, for example, safe custody to utilise the Section to his/her advantage, thereby, delivery by a person to another is a primary condition under section 20 of the Negotiable Instruments Act.
21. In this case, there is no evidence on the side of the Plaintiff that the Defendant handed over Ex.A1 with an intention to convert the same as Pro-Note. Under such circumstances, it cannot be held that the Defendant has given authorization to the Plaintiff to fill Ex.A1. Hence, I am of the considered opinion that the manner of writing and lack of evidence with regard to handing over the signed paper to the Plaintiff, has created a doubt whether the transaction alleged by the Plaintiff is in accordance with the evidence given by PW2. But, the learned Principal District Judge, without observing those facts, came to the conclusion in favour of the Plaintiff, which requires interference.
Question No. 2:
22. Ex.B3 is nothing, but a copy of the deposition given by one Ponnuthai, who is the wife of the Respondent in this Appeal. The said evidence was recorded by the Subordinate Judge, Aruppukottai, in O.S. No.302 of 2001. In the said evidence, she stated about the transaction happened with one Ponnuthaiammal, who is the Appellant in this Appeal. But, the said document was not marked through the author of the document. Since the Appellant and Respondent herein are not the author of the document and further, the said document is a previous statement of one Ponnuthai, who is the wife of the Respondent, it can be used only for corroborating or for contradicting the evidence given by the same person before the Trial Court. So, marking of copy of deposition of Third party itself is not in accordance with law of evidence.
23. With the above observation, the Second Appeal is allowed, setting aside the Judgment and Decree dated 16.8.2005, made in A.S. No.88 of 2004 on the file of the learned Principal District Judge, Virudhunagar District at Srivilliputhur. No Costs. Consequently, M.P.(MD) No.2 of 2009 is closed.
.
| Home | Quick Search | Online Brochure (Download PDF) | 7 things you must try with Law Finder | Products | Help | Feedback | About Us | License Agreement | Disclaimer | Privacy Policy |For help and suggestions call +91 9878777111
