K. N. Nagappan vs Meenakshi Achi and Others

M. M. Sundresh, J.—The unsuccessful Defendant is the Appellant herein. The suit was filed by late Lakhsmanan, seeking to recover a sum of Rs. 50,000/-with consequential interest based upon a promissory note executed by the Appellant under Ex.A.1. The trial Court after considering the evidence adduced by both the parties was pleased to dismiss the suit, which has been reversed by the lower appellate Court. Challenging the decree and judgment of the lower appellate Court, the Appellant has come forward to file this Second Appeal.

At the time of admitting the Second Appeal, the following substantial questions of law have been framed:

A. Whether the lower appellate Court had not erred in rejecting the evidence of DW4 before coming to a conclusion that the pronote was not vitiated?

B. Whether the lower appellate had not erred in rejecting the evidence of DW2 and DW1 on the ground that they had not stated about Manimurasu especially when they had specifically stated as regards the abduction and coercion?

C. Whether the lower appellate Court had not erred in holding that appeal was maintainable at the instance of a legal representative of an Endorsee?

D. Whether the lower appellate Court had not erred in coming to a conclusion that the Defendant had not complained as regards the coercion when satisfactory evidence had been let in to prove and establish the same.

The suit has been filed by Lakshmanan, in O.S. No. 213 of 1994 on the file of Sub Court, Sivaganga, seeking to recover a sum of Rs. 50,000/-with interest based upon Ex.A.1 -Promissory Note dated 20.10.1993, executed in favour of one Anand. The said Lakshmanan is only a holder in due course and the Respondents herein are the legal heirs of the said Lakhsmanan. The execution of the promissory Note has not been denied or disputed by the Appellant. The Appellant has taken a defence stating that the 1st Respondent Meenakshi Achi and the Appellant were running a firm dealing in bicycles. During the course of the business, the Appellant had received certain money. Thereafter, the business got into trouble resulting in huge loss. Few days before the marriage of the daughter of the Appellant, the husband of the first Respondent and his men forcibly took the Appellant and obtained signatures. Thereafter, a settlement has been mooted by the elders in the community by which it was agreed that the 1st Respondent herein will have to pay a sum of Rs. 75,000/-to the Appellant for handing over the entire business and the promissory note forcibly taken by the husband of the 1st Respondent will have to be returned. It is the specific case of the Defendant/Appellant that the Appellant has duly handed over the key to the 1st Respondent''s husband Singaram Chettiar, but instead of complying with the conditions, he filed the present suit through his son Lakshmanan, who has claimed to have got made over of the promissory note from one Anand, the another son of Singaram Chettiar.

The learned Counsel appearing for the Appellant submitted that the promissory note has been obtained by force and coercion. The Appellant has discharged the initial burden by producing the correspondence between the negotiators. Merely because the Appellant has not replied to the legal notice sent by the Respondent under Ex.A.3, it cannot be presumed that the allegations made in the complaint are true. Therefore, the learned Counsel submitted that the findings rendered by the trial Court based upon evidence will have to be sustained by setting aside the judgment and decree of the lower appellate Court.

Per contra, the learned Counsel appearing for the Respondent submitted that the Appellant has not rebutted the presumption, considering the admitted fact that he has signed the document under Ex.A.1. If it is a case of coercion, the Appellant has not explained as to why he has not taken steps to prosecute Singaram Chettiar. Further, the Appellant has also not taken any steps to recover the suit promissory note after the alleged decision taken in the panchayat. Therefore, the learned Counsel for the Respondent submitted that there is no question of law much less substantial question of law warranting interference at the hands of this Court.

The lower appellate Court has correctly held that it is strange, the Appellant has not taken any steps to recover the promissory note executed by him in the light of his specific averments that it has been obtained by force and coercion. There is absolutely no evidence except the oral testimony of D. Ws.1 and 2, who are the Appellant and his wife to substantiate their case. Even the evidences of D.W.1 are self-contrary in so far as the presence of the third parties are concerned. It is further seen that the alleged executors of Exs.B.5 to B.8 have not been examined. Mere marking of documents which are correspondence between the third parties without examining them will not prove its genuineness or probative value.

It is also to be seen, as discussed above, there is no proper explanation on behalf of the Appellant as to why he has not taken any steps to give any complaint after executing Ex.A.1, which is said to have been obtained by force. There is no explanation as to why the Appellant has not taken any steps to get the promissory note after the so called panachayat between the parties. In this context the lower appellate Court has held that there is an unexplained silence on the part of the Appellant in rebutting the averments made in the legal notice demanding the sum under EX.A.1. It is no doubt true that the non-issuance of reply will not lead to inference against the Defendant concerned, but in the presence case on hand, when it is the specific case of the Appellant that Ex.A.1 has been obtained by force or coercion and when he has in fact issued a legal notice against the Respondent, the non-mentioning of the said fact will certainly leads to an inference that can be drawn against the Defendant coupled with the other facts. Further, it is seen that the Plaintiff Lakshmanan is only a holder in due course and therefore, the onus is more on the Appellant to substantiate his case as he cannot be expected to lead evidence about the circumstances involving the Appellant and one Mr. Anand in whose favour Ex.A.1 has been executed.

The lower appellate Court has not allowed the appeal merely on the ground that in the subsequent legal notice sent by the Appellant, the factum of alleged

M.M.Sundresh, J.

sj coercion in executing Ex.A.1 has not been mentioned, but has also considered the other material evidence available on record. Considering the above facts, the lower appellate Court has correctly held that the Appellant has not rebutted the presumption, more so in the execution of Ex.A.1. Further the judgment and decree rendered by the lower appellate Court being the one on facts, this Court does not find any substantial question of law warranting interference.

In the result, the Second Appeal is dismissed. No Costs.