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TMI Blog2022 (1) TMI 252X X X X Extracts X X X X X X X X Extracts X X X X ..... nt failed to repay the same inspite of several requests. Therefore, the plaintiff issued a legal notice dated 22.11.2016, calling upon the plaintiff to repay the amount due, as per the promissroy note executed dated 14.12.2012. On receipt of legal notice, the defendant had issued a reply notice dated 25.11.2016 containing incorrect and false details. The averments and allegations set out in the reply notice with regard to the alleged contract of sale pertaining to the property of the defendant family is utter false. Hence, the plaintiff filed the suit for recovery of money. 4. Resisting the claim made by the plaintiff, the defendant filed written statement contenting among otherthings that there is no execution of promissory note. After the death of defendant's father the plainfitff expressed his desire to purchase the property of the platiniff's father measuring an extent of 28 cents in S.FNo.102/2, Vagaikulam for a sale consideration of Rs. 2,50,000/-. When the defendant told the plaintiff that only after getting the release deed from his mother and sister, the sale deed can be executed. Unles and until they release it, he cannot execute sale, as it is a joint family propert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Exs.B.1 and B2. 7.On analysis of the oral and documentary evidence, the Trial Court had dismissed the suit. Aggrieved by the same, the plaintiff has preferred an appeal in A.S. No.101 of 2018, on the file of the learned III Additional District Judge, Tirunelveli. 8. The first appellate court, after considering the oral and documentary evidence of the parties, had dismissed the appeal suit. Aggrieved by the Judgment and decree passed by the first appellate Court, the present Second Appeal has been filed by the plaintiff raising various grounds. 9. The learned counsel appearing for the appellant / plaintiff would vehemently contend that the Courts below failed to consider that the defendant in his reply notice did not dispute the signature in the pro-note but taken a plea in the written statement as if with the help of his signature available in the unfilled pronote given to the plaintiff in pursuant to the sale agreement, the pronote in dispute was forged. Thus, it is very clear that the defendant has categorically admitted the signature in the pronote and has not denied the same. Further, his plea of handing over of alleged pronote in pursuant to the sale agreement is not prove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statement, the first defendant has stated that the plaintiff was running a Finance Firm at Pernampet several years ago and with the help of the documents available in the said Finance Firm, the plaintiff has fabricated the suit documents and filed the false suit. So, according to the first defendant, her husband had left certain documents with the aforesaid Finance Firm and only with the help of the said documents, the suit promissory note was fabricated. In such a case, it has to be presumed that the first defendant's husband G.Pandurangan would have executed the suit promissory note. Therefore, the burden is upon the defendants that the suit promissory note was given by the deceased G.Pandurangan only in the said Finance Firm, but the defendants did not adduce any evidence to substantiate the aforesaid plea. Further, if really the said G.Pandurangan had not executed the suit promissory note in favour of the plaintiff, the first defendant would have sent a reply to Ex.A2 notice. Further, she would have entered into the witness box and subjected herself for cross examination. The aforesaid circumstances would lead to an inference that the suit promissory note was executed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contradictions in the answers given by the witnesses. In my view, they do not really go to the root of the matter. As rightly argued by the learned counsel for the appellant, the pro-note has been executed way back in the year 1994. Witnesses were examined only in March 2010. Thus, there has been a gap of almost 16 years between the date of execution of the suit pro-note and the examination of the witnesses in the Court. In view of the efflux of time, the memories are likely to fail. The S.A.(MD)No.54 of 2014 contradictions noted in the deposition of the witnesses by the First Appellate Court are not really material. The only way the defendant could have rebutted the presumption is to show that the plaintiff was running the chit business and that, when he had bid for the prize money, the suit pronote was taken." 13. The learned counsel appearing for the respondent / defendant would submit that the well considered Judgments of the Courts below need not be interfered with, as there is no question of law involved in this Second Appeal and prayed for dismissal of the Second Appeal. 14. This Court paid its anxious consideration to the rival submissions made and also carefully perused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ex.A1 was prepared through computer. If really the suit promissory note had been executed by the defendant, as claimed by the plaintiff, absolutely there is no possibility of material contradictions creeping into the evidence of P.W.1 and P.W.2 with regard to execution of the suit promissory note. Further, admittedly, there was a civil dispute between the defendants father and P.W.2, it is hard to comprehend that the defendant would have brought P.W.2 for the purpose of making attestation in the suit promissory note and therefore, this Court is of the view that P.W.2 is not a trustworthy witness. The triate law is that the plaintiff cannot be permitted to pick holes in the defendants case and claim to have proved his case. No doubt, the Judgments and Decrees of the Courts below are based on proper appreciation of evidence placed and proper understanding of the settled principles of law governing the provisions of Sections 20 and 118 of Negotiable Instruments Act. 18. Admittedly, the defendant received a sum of Rs. 1,90,000/- from the plaintiff, which he is liable to pay the same to the plaintiff with reasonable interest. Accordingly, the defendant is directed to pay a sum of Rs. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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