2023 (11) TMI 1023 - HC - Indian Laws

Suit for recovery along with an interest at the rate of 12% per annum from the date of the suit till the date of the decree and thereafter, at the same rate till the date of its realisation - liable to pay the dues of Sheela Venugopal from the estate inherited by them - HELD THAT - In the instant case, the court did not take up the risk of doing the job of comparative analysis of the disputed signature by itself. Instead they were sent to expert analysis and hence there is no harm in recording the finding of the expert as the first step. But accepting the findings of the expert is the second part of the exercise. Usually, there can not be any reason to disregard the opinion of the expert, unless there is any patent defect or irregularity is seen to be present in the analysis or established so by the defendants. The first defendant has opted to give a selective acceptance to the part of the report which states that the signature of the first defendant in Ex.P3 did not tally with his admitted signatures - the defendants did not establish anything adverse to the acceptance of the expert's report. The promissory note does not contain any other particulars as to the rate of interest. So it has to be presumed that the loan transaction did not have any term as to interest. If the promissory note is a created one, nothing could have prevented the plaintiff from filling up the rate of interest and particulars of witnesses as per her whims - Since the executant of the promissory note is no more, the plaintiff can prove the genuineness of the promissory note only by proving the ancillary facts attached to it. As stated already, the first defendant did not deny their acquaintance with the plaintiff. As per the contention of the plaintiff, the loan amount has been given to Sheela Venugopal on several occasions and it was not an one-time payment. After the demise of Sheela Venugopal, the 1st defendant initiated some negotiations with the plaintiff and even according to the 1st defendant, it was some good intention of purchasing peace, but the plaintiff demanded huge sum and hence it did not fructify. Even though the suit promissory note has been executed for Rs. 2.50 crores, from the legal notice sent by the plaintiff and her oral evidence, she has made it clear that the remaining due was only Rs. 2,18,50,000/-. In such case, the legal enforcement of the suit promissory note can be limited to a sum of Rs. 2,18,50,000/-. though Sheela Venugopal had executed the promissory note for Rs. 2.50 crores - the promissory note did not contain any terms for interest, and hence, the plaintiff is not entitled to claim any interest. In view of the above stated reasons, the plaintiff is entitled to get a decree for recovery of a sum of Rs. 2,18,50,000/-only, from the defendants as against the assets inherited by them from the deceased Sheela Venugopal. Hence, issue No. 5 is thus answered. The suit is partly decreed with cost and the plaintiff is entitled to get a decree for recovery of a sum of Rs. 2,18,50,000/- only from the defendants to be payable from the assets of the deceased Sheela Venugopal and to that extent to which the defendants are jointly and severally liable to pay as inherited by them.

Summary

Issues Involved:
1. Joint and several liability of defendants for the suit amount.
2. Validity and consideration of the promissory note dated 26.09.2016.
3. Whether the suit is barred by limitation.
4. Acknowledgment of liability by the first defendant.
5. Entitlement of the plaintiff to the decree as prayed.
6. Reliefs to which the plaintiff is entitled.

Summary:

Issue 1: Joint and Several Liability
The court determined that the defendants, as legal heirs of Sheela Venugopal, are jointly and severally liable to pay the suit amount from the estate inherited from her. The first defendant admitted inheriting a half share of the property valued at Rs. 2.50 crore, but failed to substantiate claims of discharging other liabilities with this amount. Thus, the defendants are liable for the suit amount from the assets inherited.

Issue 2: Validity and Consideration of Promissory Note
The court found the promissory note dated 26.09.2016 to be true, valid, and supported by consideration. The plaintiff proved the signatures on the promissory note were those of Sheela Venugopal, as confirmed by a handwriting expert. The defendants failed to disprove the presumption under Section 118 of the Negotiable Instruments Act that the promissory note was supported by consideration.

Issue 3: Limitation
The suit was filed within the limitation period. The promissory note was executed on 26.09.2016, and the suit was filed on 11.03.2019, within the three-year limitation period. Thus, the suit is not barred by limitation.

Issue 4: Acknowledgment of Liability
The court did not find sufficient evidence that the first defendant acknowledged the liability as claimed by the plaintiff. The handwriting expert's report indicated that the signature on the document dated 01.12.2018 did not match the first defendant's admitted signatures.

Issue 5: Entitlement to Decree
The plaintiff is entitled to recover Rs. 2,18,50,000/- from the defendants, limited to the assets inherited from Sheela Venugopal. Although the promissory note was for Rs. 2.50 crore, the plaintiff's legal notice and oral evidence indicated the remaining due amount was Rs. 2,18,50,000/-.

Issue 6: Reliefs
The plaintiff is not entitled to interest on the promissory note amount as there was no stipulation for interest. However, the plaintiff is entitled to subsequent interest at the rate of 6% per annum from the date of the decree until realization.

Conclusion:
The suit is partly decreed with costs. The plaintiff is entitled to recover Rs. 2,18,50,000/- from the defendants, payable from the assets inherited from Sheela Venugopal, with subsequent interest at 6% per annum from the date of the decree until realization. The suit is dismissed regarding the rest of the claim. Time for payment is set at three months.