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TMI Blog2023 (11) TMI 1023X X X X Extracts X X X X X X X X Extracts X X X X ..... advance amount to the plaintiff. 2.1. In view of the good acquaintance developed during the above transaction, the wife of the 1st defendant and the mother of defendants 2 and 3, Mrs.Sheela Venugopal, became friends with the plaintiff. By using the proximity, Sheela Venugopal approached the plaintiff for financial assistance. On believing the words of Sheela Venugopal and being satisfied with her capacity to repay the loans, the plaintiff agreed to lend money to her. This is also due to her ownership over the property at No. 34, Sriram Colony, Alwarpet, Chennai 600 018. 2.2. The plaintiff lent huge amounts on various dates to Sheela Venugopal and the money used to be transacted through cheques. Occasionally, cash payments were also made. Apart from the promissory notes and cheques signed and delivered by Sheela Venugopal. Sheela Venugopal was in the habit of confirming the loans obtained by her by writing on some occasions. 2.3. After consolidating the entire dues, Sheela Venugopal executed one consolidated promissory note on 26.09.2016 for a sum of Rs. 2,50,00,000/-, which represents the entire principal and interest due to be paid by her. On the very same day, Sheela Venugopal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erial to support the claim of the plaintiff and she has not stated how the sum of Rs. 2,50,00,000/-was arrived at. As per the statutory guidelines, any sum paid for a value above Rs. 20,000/-can only be made through bank transaction. Hence, the plaintiff has to establish that the alleged borrowing was done through bank transactions. The defendants are liable to answer the borrowings alleged to have been effected by Sheela Venugopal only to the extent that they derived the benefit of her estate. Sheela Venugopal was entitled to half share of the property at No. 34, Sriram Colony, Alwarpet, Chennai 600 018, and she had no other assets. The defendants are liable only to the extent of half share belonging to her. 3.1. In fact, the defendants discharged other liabilities incurred by Sheela Venugopal during her life-time, as they were all supported by evidence and exceeded half of the value of the suit property and hence, the defendants are not liable to answer the suit claim. The promissory notes are supported by consideration. The plaintiff has to establish that Sheela Venugopal has borrowed various sums from the plaintiff right from the year 2010. If no repayment was made by Sheela V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.2022: "(i) Whether the defendants are jointly and severally liable to pay the plaintiff a sum of Rs. 2,50,00,000/-? (ii) Whether the alleged promissory note dated 26.09.2016 is supported by consideration? (iii) Whether the suit is barred by law of limitation? (iv) Whether there is an admission of liability on the part of the first defendant and his wife, late Sheela Venugopal to the plaintiff to the tune of Rs. 2,50,00,000/-? (v) Whether the sums the plaintiff is stated to have paid to the deceased Mrs.Sheela Venugopal are a loan and consequently a debt which is legally enforceable and recoverable? (vi) Whether the first defendant is liable to pay interest @ 12% per annum on the suit claim of Rs. 2,50,00,000/-from the date of the suit till the date of decree and thereafter at the same rate till the date of realization of the same? (vii) To what other reliefs is this plaintiff entitled to? 5. However, I feel the issues have to be reframed as under; (i) Whether the defendants are jointly or severally liable to pay the suit amount from and out of estates of late Sheela Venugopal, inherited by them? (ii) Whether the suit promissory note dated 26.09.2016 is true and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made false statements with an intention to enjoy unlawful enrichment. Since the plaintiff has proved that the promissory note has been executed by the 1st defendant's wife, Sheela Venugopal for valuable consideration and her liability had also been admitted through the undertakings executed by herself and the 1st defendant the suit should be decreed as prayed. 9. Per contra, the learned counsel for the defendants submitted that the suit is barred by limitation. Though the plaintiff has stated that the sums were availed between the period from 2010 and 2018, she has not stated any specific dates when the loans were given to the deceased Sheela Venugopal. Any payment exceeding the value above Rs. 20,000/-ought to have been made through bank transaction. But the plaintiff has not shown any bank transaction would show that the alleged transaction has been made through bank as stated by her. 9.1. In fact, the bank account of Sheela Venugopal would indicate that the amount had flown from her account to the plaintiff's account and not vice versa. Sheela Venugopal had half share in the property at No. 34, Sriram Colony, Alwarpet, Chennai 600 018, and the defendants had discharge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the witnesses are not written. It is further submitted that the borrower's signature is not found on the stamp but below the stamp. The signature of Sheela Venugopal on Ex.P1 promissory note and another stamp paper, dated 26.09.2019 have been sent to handwriting expert for comparing them with the admitted signatures and give a report. As per the handwriting expert's opinion the signatures on the disputed documents tallied with her admitted signatures. The report received in this regard in Doc. No. 16/2023 is marked as Ex.C1. 12. It is submitted by the defendants that the report of the scientific expert can not be treated as a conclusive proof. So far as comparison of signatures is concerned the court itself can do comparison if the similarities and dissimilarities in the signatures are apparently clear even to the bear eyes examination. However, it is always safe to leave the job to the expert's appreciation. A division bench judgement of the Hon'ble Supreme Court in the case of Ajit Savant Majagvai Vs. State of Karnataka [reported in (1997) 7 Supreme Court Cases 110] has held that the court normally should not assume the charge of comparing the signature and e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after verifying whether the same characteristics are found in the disputed finger impression. The comparison of the two thumb impressions cannot be casual or by a mere glance. Further, a finding in the judgment that there appeared to be no marked differences between the admitted thumb impression and disputed thumb impression, without anything more, cannot be accepted as a valid finding that the disputed signature is of the person who has put the admitted thumb impression. Where the Court finds that the disputed finger impression and admitted thumb impression are clear and where the court is in a position to identify the characteristics of finger prints, the court may record a finding on comparison, even in the absence of an expert's opinion. But where the disputed thumb impression is smudgy, vague or very light, the court should not hazard a guess by a casual perusal. " 14. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce. 17. So far as negotiable instrument like a promissory note is concerned, once the signature on the promissory note is admitted to be true, the plaintiff has a presumption in her favour in accordance with Section 118 of the Negotiable Instruments Act with regard to passing of the consideration. However, the defendants have to disprove the presumption by proving that the promissory note is not supported by consideration. 18. 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. 19. Since the above conduct of the 1st defendant would itself support the plaintiff's contenti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a defence that Ex.P3 was not signed by him and hence, the plaintiff cannot claim that it is an acknowledgement as against the first defendant. The handwriting expert evidence goes in favour of the 1st defendant on this aspect. Hence, Ex.P3 cannot be considered as an undertaking given by the 1st defendant. However, from the fact mentioned by the plaintiff herself in the legal notice about the quantum , which is similar to what is mentioned in Ex.P3, it can be safely concluded that the deceased Sheela Venugopal had dues of Rs. 2,18,50,000/- only subsequent to the execution of the promissory note or prior to her death. 23. Admittedly, there was no stipulation about the interest in the promissory note. A huge sum of Rs. 2.50 crore have been lent on several dates and occasions without maintaining any accounts. However, such an unreasonable and an extra ordinary risk has been taken by the plaintiff will not defeat the evidentially value of the Ex.P1 promissory note and the advantage of initial presumption attached to its value of Section 118 of the Negotiable Instruments Act. The initial presumption in favour of the plaintiff has not been rebutted by the defendants in a manner known to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for Rs. 2.50 crores. As stated already, 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. 28. As there is no term about interest on the date when the suit promissory note was executed, the plaintiff is not entitled to get interest for the amount claimed. However, the plaintiff is entitled to get subsequent interest from the date of the decree till the date of its realisation at the rate of 6% interest per annum. Hence, Issue No. 6 is thus answered. In the result, 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. The plaintiff is also entitled to get the subsequent interest from the date ..... X X X X Extracts X X X X X X X X Extracts X X X X
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