M. Venugopal, J.@mdashThe Appellant/Plaintiff (during his life time) has focused the present Second Appeal as against the Judgment and Decree dated 25.04.2001 in A.S. No. 12 of 1998 passed by the Learned Principal District Judge, Cuddalore in reversing the Judgment and Decree dated 23.12.1997 in O.S. No. 24 of 1996 passed by the Learned Sub Judge, Chidambaram. During the pendency of Second Appeal, the Appellant/Plaintiff expired and as such Appellants 2 to 5 have been brought on record as his legal heirs.
2. The First Appellate Court viz., the Learned Principal District Judge, Cuddalore, while allowing the Appeal Suit No. 12 of 1998 on 25.04.2001 in the Judgment has among other things observed that "the Appellant/Plaintiff (deceased) has failed to produce the document for money lending and that there was no reason for withholding the same and has come to the consequent conclusion that he has no means to advance the amount to the Respondents/Appellants (Defendants) and allowed the appeal with costs by setting aside the Judgment and Decree of the trial Court in O.S. No. 24 of 1996 dated 23.12.1997 and dismissed the suit with costs.
3. Before the trial Court, during the trial of the main suit, 1 to 4 issues have been framed for adjudication. On behalf of the original Appellant/Plaintiff (deceased), witnesses PW 1 and PW 2 have been examined and Ex. A1 to A4 have been marked. On the side of the Respondents/Defendants witness DW1 has been examined and Ex. B1 and Ex. B2 have been marked.
4. The trial Court, on an appreciation of oral and documentary evidence available on record, has come to a resultant conclusion that the Appellant/Plaintiff (later deceased) is entitled to recover the suit amount from the Respondents/Defendants and accordingly, passed a decree as prayed for with costs.
5. Being dissatisfied with the Judgment and Decree of the trial Court in O.S. No. 24 of 1996, dated 23.12.1997, the Respondents/Defendants as Appellants preferred A.S. No. 12 of 1998 before the First Appellate Court viz., the Learned Principal District Court, Cuddalore as aggrieved persons.
6. The First Appellate Court has allowed A.S. No. 12 of 1998 filed by the Respondents/Defendants on 25.04.2001 by setting aside the Judgment and Decree of the trial Court in O.S. No. 24 of 1996, dated 23.12.1997 and consequently, dismissed the suit with costs by assigning the reasons therefor.
7. Feeling aggrieved against the Judgment and Decree of the First Appellate Court viz., the Learned Principal District Judge, Cuddalore in A.S. No. 12 of 1998 dated 25.04.2001, the Appellant/Plaintiff (later deceased), during his life time, has projected this Second Appeal No. 1358 of 2001 before this Court and after his death, Appellants 2 to 5 have brought on record as his legal heirs and they continue the proceedings as such.
8. At the time of admission of the Second Appeal, this Court has formulated the following Substantial Questions of Law for consideration:-
1) Whether the District Judge was not in error in finding that the Power of Attorney had no authority to institute the suit, especially when the permission had been granted by the trial Court for such institution in I.A. No. 141 of 1996 on 25.03.1996 and so long as the District Judge in error in rendering the said finding?
2) Whether the provisions relating to Order III Rule 1 and 2 of CPC are not merely procedural and a curable defect and the defendants had waived the right to contest on the ground of want of proper authority for the institution of the suit?
3) Whether the Appellate Court was not in error in setting aside the well reasoned Judgment of the trial Court in finding that the promissory note had been written in the own hand writing of the 1st defendant and whether the reasoning was not perverse, as opposed to Order XLI Rule 31 of CPC?
4) Whether the Learned District Judge was not in error in applying the provisions of the Tamil Nadu Money Lendings Act to rule a presumption against the due passing of consideration and the genuineness of the instrument by the plaintiff''s non production of Account Book, when the plaintiff was not a professional money lender and his avocation as declared did not require the maintenance of any account books for lending?
9. The Contentions, Discussions and Findings on Substantial Questions of Law No. 1 and 2:-
The Learned Counsel for the Appellants submits that there was no issue as regards the competence of the Power to Attorney to prosecute the suit against the Defendants and it was surprised that the First Appellate Court had observed that the Power of Attorney had no authority to represent his son, the promisee under the Promissory Note.
10. It is the further contention of the Learned Counsel for the Appellants that the Power of Attorney was expressly permitted by the trial Court as per Order in I.A. No. 141 of 1996 dated 25.03.1996, which fact was not taken note of by the First Appellate Court in proper and real perspective which had resulted in miscarriage of justice.
11. Advancing his argument, the Learned Counsel for the Appellants projects an argument that even assuming that the Power of Attorney Deed had not authorised the agent to act on behalf of his principal, without admitting, the very fact that the principal examined himself as PW2 in Court and affirmed the agency created in favour of his father, impliedly the agency was created and therefore the Respondents/Defendants were estopped from raising a plea that the agent had no authority to file the suit.
12. That apart, it is the contention of the Learned Counsel for the Appellants that even if the father had no authority, the same ought to have been taken at earliest point of time and when this was not done, the Respondents/Defendants in Law were deemed to have waived their right to impeach the competence of the father to act as an agent.
13. Yet another submission of the Learned Counsel for the Appellants is that if at all the order passed under order III, Rule 1 and 2 of C.P.C. by the trial Court was an incorrect one and the defect in permitting the power agent to file the suit was only a procedural irregularity and that would not take away the right available to principal to secure the relief as prayed for.
14. The Learned Counsel for the Appellants cites the decision in
Where the parties to a suit join issues, adduce evidence and the matters in controversy are adjudicated upon after a full trial without any objection as to the authority of the person to file the suit on Plaintiff''s behalf the objection as to the validity of the Power of Attorney cannot be entertained for the first time at the hearing of the appeal. (Para 2b)
15. He also cites the decision in
Where the power of Attorney authorized the attorney to act in one particular matter, the power is a special power of attorney inasmuch as the agent''s authorization entends not to any class of business or employment but is restricted to the doing of all necessary acts in the accomplishment of one particular purpose:
16. He invites the attention of this Court to the decision in Sujatha Jayakumar, Proprietrix "Sujatha Agencies", No. 75, Alagappa Road, Purasawalkam, Chennai-600 084 v. M/s Karnataka Soaps & Detergents Limited rep. by its Senior Assistant, Accounts and also Power of Attorney Agent, Mr. S. Muthian, Seven Star Building, II Floor, A-80, 3rd Avenue, Anna Nagar, Chennai 600 102,
Defendants/Revision Petitioner taking out an Application for dismissing the Suit on the ground that the Suit has been laid through the Power Agent and that the Application for leave of Court to permit the power agent to sign and verify the Plaint has not been ordered and that the Suit is not maintainable. The same was countered by the Respondent/Plaintiff on the ground that the Application was filed and though not ordered, the Suit was numbered and even in the written statement no objection was taken in respect of the maintainability of the suit. The trial Court dismissed the Application.
17. Per contra, the Learned Counsel for the Respondents/Defendants contends that the first Appellate Court had looked into the entire oral and documentary evidence available on record and has come to a categorical conclusion that the Power Deed authorises to conduct the cases viz., O.S. No. 170 of 1993 on the file of the Sub Court, Chidambaram, O.S. No. 615 of 1993 and O.S. No. 181 of 1994 on the file of District Munsif Court, Chidambaram and it has not given power to the Plaintiff to conduct O.S. No. 24 of 1996 and has rightly held that the Appellant/Plaintiff (later deceased) has no means to advance the amount to the Respondents/Defendants and further held that the suit is barred by limitation and allowed the first appeal by dismissing the suit with costs which may not be interfered with by this Court sitting in the Second Appeal.
18. The Learned Counsel for the Respondents/Defendants cites the decision in
19. At this stage, it is not out of place for this Court to point out that the First Appellant Court in the Judgment in A.S. No. 12 of 1998, dated 25.04.2001 in paragraph No. 7 has among other things observed that "a perusal of Ex. A3 would show that he gave power only to conduct the above said cases (O.S. No. 170/1993, O.S. No. 615/1993 and O.S.No. 181/1994) and that the Plaintiff has got no power to conduct this O.S. No. 24 of 1996 etc."
20. A reading of the plaint filed by the original Appellant/Plaintiff (later deceased) shows that the Appellant/Plaintiff was represented through Power Agent G. Sambandam. The Appellant/Plaintiff (later deceased) filed a suit in O.S. No. 24 of 1996 on the file of the trial Court claiming a sum of Rs. 67,700/- being the principle and interest due on a promissory note dated 14.04.1993 executed by the Respondents/Defendants in favour of the Appellant/Plaintiff (Ganesh-later deceased) for Rs. 50,000/- payable with interest at the rate of 12% p.a. since the Respondents/Defendants had not discharged the debt, the Appellant/Plaintiff filed the suit (during his life time).
21. In the Written Statement filed by the Respondents/Defendants in paragraph No. 4, it is offered that the Appellant/Plaintiff (Ganesh) had not executed any Power Deed to and in favour of G. Sambandam and even if it was accepted that the said Power Deed was executed, the same had not come into force.
22. It is to be borne in mind that an objection that the filing of the suit is not within the authority conferred by a Power of Attorney, should be taken at the earliest possible opportunity and before the issues are framed as per the decision in Municipal Committee, Pathankot v. Roshanlal (1957) ILR Punjab at p. 1443. Even when an objection is so taken and sustained, the Court should not reject the plaint but provide an opportunity to the parties to rectify the defect as per the decision in Radhakrishen v. Wali Mahammed AIR 1956 Hyderabad at p. 133
23. A Power-of-Attorney must be strictly construed as giving only such authority as it expressly or by necessary implication creates, the Court cannot refuse to recognise implied authority that every Agent has to do whatever is necessary or ordinarily incidental to the effective execution of the express authority conferred on him by the Power-of-Attorney as per the decision in
24. This Court aptly points out the decision in
25. This Court worth recalls the decision of
26. As a matter of fact, Order 3 Rule 1 of C.P.C. empowers a party in a suit or proceedings to be represented by a pleader. In this connection, this Court, in the interest of justice cites the following decisions:
(a) In
Where a special Power-of-Attorney confers an express power on a person to conduct a particular suit pending in a particular Court and does not expressly engage the attorney for the purpose of conducting the litigation generally in respect of the plaint schedule properties, such a general power cannot be inferred by necessary implication when the plaint in the suit is returned for want of jurisdiction so as to entitle the attorney to engage an advocate and re-present the plaint to a different Court.
(b) In
It is not duty of Court to direct parties or compel parties as to in what manner they should conduct their case before Court or also what quality of evidence they should place before Court.
(c) In Ms. Sujatha Jayakumar, Chennai v. Karnataka Soaps & Detergents Limited rep. by its Senior Assistant, Chennai 600 102
(d) In
(e) In
A Power of Attorney can give evidence only in respect of acts done by him in the exercise of powers granted by the instrument, but he cannot depose for the principal in respect of the matter on which the principal alone can have personal knowledge. The power of attorney "..cannot depose for the principal in respect of the matter, which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined. "A general power of attorney holder cannot be allowed to appear as a witness on behalf of the plaintiff in the capacity of the plaintiff. The power of attorney holder of a party can appear only in his personal capacity and cannot appear on behalf of the party in the capacity of that party." In matters requiring personal knowledge, evidence cannot be adduced through a power of attorney.
(f) In Kanakapudi Bharathy and another v. Authority u/s 50 of A.P.S.E. Act-cum-Labour Officer, Machilipatnam and another 2000 A I H C at p.87 at p.88 at p.89 in paragraph No. 5 it is held as follows:-
5. I have given my anxious consideration to the rival contentions and carefully perused the impugned order. I am of the considered view that word ''acts'' used in Rule 2, Order 3, C.P.C. does not include the act of General Power of Attorney Holder to appear as a witness on behalf of the petitioners. General Power of Attorney Holder of a party can appear only as a witness in his personal capacity to speak about the facts which are within his personal knowledge about the case, but, he cannot appear as a witness on behalf of a party in the capacity of that party. It has been observed in the impugned order that the executant of General Power of Attorney by name Bharathi has been attending to her cases personally and non-examination of her in A.P.S.C. No. 4 of 1996 will result in great injustice to the second respondent. In this context, it is also relevant to refer to Section 118 of the Indian Evidence Act which reads that "all persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them or giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind". Thus, testimonial compulsion is the very foundation of the Law of Evidence, for, without such compulsion every refusal to give evidence will render administration of justice impossible. It is not a legal fetish. It is a necessity and also the general rule. The petitioners cannot stay back without entering into witness box and subjecting themselves to cross-examination by the second respondent. Further, even if the petitioners are unable to appear in Court, a Commission for recording their evidence may be taken out under the relevant provisions of the Code of Civil Procedure. This view of mine gets support from a decision of the Rajasthan High Court (Jaipur Bench) in
27. The Power Agent of the Appellant/Plaintiff G. Sambantham before the trial Court filed I.A. No. 141 of 1996 in O.S. No. 24 of 1996 seeking permission to recognise him as Power Agent and to allow him to conduct the suit on behalf of the principal. According to the Appellant, the trial Court granted permission to the Power Agent in I.A. No. 141 of 1996 in O.S. No. 24 of 1996 on 25.03.1996 and therefore, it is not open to the first Appellate Court in appeal to render a finding that Ex. A3-Power of Attorney does not confer power upon the Power Agent to conduct/prosecute the case in O.S. No. 24 of 1996.
28. On going through the contends/recitals of Ex. A3-General Power of Attorney dated 31.03.1994 executed by the Appellant/Plaintiff (later deceased) to and in favour of G. Sambantham (Power Agent) shows that the Power Agent has been authorised/empowered to conduct/take the proceedings in O.S.No. 170 of 1993 pending on the file of the Sub Court, Chidambaram and O.S. No. 615 of 1993 and O.S. No. 181 of 1994 on the file of the District Munsif Court, Chidambaram. Only for conducting or prosecuting the proceedings of three suits referred to supra, the Power Agent G. Sambantham was given the necessary powers expressly thereto as per Ex. A3. But, the Power Agent G. Sambantham as per Ex. A3, General Power of Attorney dated 31.3.1994 was not authorised/empowered to conduct the proceedings in O.S. No. 24 of 1996. As such this Court holds that the Power Agent Sambantham could not have filed O.S. No. 24 of 1996 on the file of the trial Court as Power Agent of the principal (Ganesh) viz., the Appellant/Plaintiff (later deceased), but it was a procedural irregularity, which would not take away the right available to a principal to obtain the relief prayed for in the plaint.
29. Even though the permission was granted by the trial Court in I.A. No. 141 of 1996 in O.S. No. 24 of 1996 on 25.03.1996 enabling the Power Agent to conduct the suit proceedings in O.S. No. 24 of 1996 on the file of trial Court and also notwithstanding the fact that the said order had become final, yet the same would not in Law prevent the learned First Appellate Authority viz. the Principal District Judge, Cuddalore to render a finding based on Ex. A3 General Power of Attorney that the Power Agent could not file the suit on behalf of the principal viz., the Appellant/Plaintiff (deceased Ganesh). The inherent power of the Court could not be fettered in any manner, since there could not be an estoppel against Law, in the considered opinion of this Court.
30. Equally, it could not be said that the Respondents/Defendants had waived the right to contest on the ground of want of proper authority for the institution of the suit, because of the fact that the want of authority was only a procedural and a curable defect.
31. This Court aptly points out the decision in
32. However, this Court in the decision John Kennady @
33. It is to be noted that in the decision
34. Before the trial Court the Power Agent of the Appellant/Plaintiff (since deceased) was examined as PW1. In fact, the Power Agent PW1 had deposed that from PW2 viz., the Appellant/Plaintiff, the Respondents/Defendants had appeared a sum of Rs. 50,000/- on 14.04.1993 and executed a promissory note and that the loan was taken by the Respondents/Defendants for iron shop business and further stated that, it was not correct to state that the Respondents/Defendants had not executed the promissory note and that he knew about Ex. A1-Promissory Note personally and that Ex. A1-Promissory Note was written by the first Respondent/first Defendant. It cannot be lost sight of that PW2 (Appellant/Plaintiff) in his evidence has deposed that PW1 was his father and Ex. A3 is the Power-of-Attorney Deed executed by him in favour of his father and that the Respondents/Defendants came to his house and on 14.04.1993 received a sum of Rs. 50,000/- and executed Ex. A1-Promissory Note etc.,
35. In the present case on hand, the very fact that PW1-Power Agent (father of PW2) in his evidence had deposed about Ex. A1-Promissory Note transaction to the fact that the Respondents/Defendants had executed the promissory note after receipt of a sum of Rs. 50,000/- to and in favour of the Appellant/Plaintiff shows that he could not have been allowed to depose in place of the principal and therefore, his evidence in place of the principal was of little value. To put it shortly, in matters requiring personal knowledge of Ex. A1-Suit Promissory Note transaction, PW1''s evidence on behalf of principal was of no avail to the Appellant/Plaintiff. Viewed in that perspective the Substantial Questions of Law No. 1 and 2 are so answered.
36. The Contentions, Discussions and Findings on Substantial Questions of Law No. 3 and 4:-
The case of the Appellants is that the Respondents 1 and 2 had borrowed a sum of Rs. 50,000/- on 14.4.1993 from the Appellant/Plaintiff (since deceased) and executed Ex. A1-Promissory Note and that as on date of filing of the plaint that the Respondents/Defendants were due and liable to pay a sum of Rs. 67,700/- together with interest at 12% p.a.
37. The stand of the Respondents/Defendants is that they had not executed Ex. A1-Suit Promissory Note and that they had not received the consideration and also that the signatures found in the promissory note do not belong to them. In short, the Respondents/Defendants had taken a defence that they had not executed the suit promissory note in question to and in favour of the Appellant/Plaintiff (deceased). Further more, the Respondents/Defendants had taken a stand that the suit promissory note was a rank forgery.
38. The Respondents/Defendants in the written statement had averred that PW1 is his father and PW2 is son and that PW1 (Power Agent of PW2) worked as Process Server at Chidambaram Court and that when PW1 was in Government job, advanced loan to numerous persons claiming one to three times of the suit promissory note amount and was in the habit of claiming higher amounts from the debtors and also was in the habit of collecting daily ''Thandals'' and not credited the amounts so recovered. Moreover, PW1, if the debtors failed to repay the loan amounts, used to take serious action for recovery of the amounts and because of these reasons, many families were affected and some of the affected persons lodged complaints against him and a Disciplinary Action was taken and that the Vigilance Officer one Dakshinamoorthy used to visit the iron shop of the first Respondent/first Defendant. Also that PW1 also came to the Iron shop and that the said Dakshinamoorthy was forced to enquiry about PW1 Sambantham and that PW1 informed the first Respondent/first Defendant to inform the said Dakshinamoorthy to make a complaint an useless one. But he refused to do so and since he had not helped PW1, he had created the suit promissory note and that if it was sent to a Handwriting Expert, it could be found whether it was true or forgery one.
39. For a fuller and better appreciation of the merits of the matter this Court makes an useful reference to the evidence of PW1, PW2 and DW1.
40. It is the evidence of PW1 (Power Agent of the Appellant/Plaintiff) that his son is PW2 and that the Respondents/Defendants received a loan of Rs. 50,000/- on 14.4.1993 from PW2 and executed a suit promissory note, according to pay interest at the rate of 12% p.a. and that the loan was obtained for iron shop business and a notice was sent claiming the due amount under the promissory note for which no reply was received and for that the suit promissory note was written in his house and therefore, he knew about Ex. A1 promissory note.
41. PW1 (in his cross examination) had deposed that the suit promissory note was written in his house at about 9''O clock in the morning, at the time, PW2 and the Respondents/Defendants were present and that when he informed that a witness had to sign, the First Respondent/first Defendant said that no witness signature was required, since he was writing the promissory note in his own hand and that Ex. A3-Power Deed executed by the Appellant/Plaintiff was in force and that in Chidambaram District Munsif Court O.S. No. 345 of 1996 was filed by the Appellant/Plaintiff and a decree was passed on 10.09.1997 and for conducting some cases personally a power deed was executed in his favour.
42. PW2 (Appellant/Plaintiff (since deceased)) in his evidence had deposed that PW1 was his father and that he had executed Ex. A3-Power Deed and that the Respondents/Defendants had come to his house and executed Ex. A1-Promissory Note on 14.4.1993 after receiving a sum of Rs. 50,000/- and the said promissory note was written in his own hand writing by the First Respondent/First Defendant and that the Respondents/Defendants had signed the said promissory note and that he had received a sum of Rs. 30,000/- through his mother.
43. PW2 (in his cross examination) had deposed that he does not know about the details of O.S. No. 181 of 1994 and that one Kuttiyandi in Ex. A3 was a Gingee Court staff and he does not know when how much money he advanced loan to him and he does not Mr. Ravi mentioned in Ex. A3 and further, he also does not remember about the advanced by him to him and that the cases mentioned in Ex. A3-Power Deed were filed and conducted by his father and the said cases details would be spoken to by his father and from the year 1990, he advanced loan to his friends and to the near ones of his father for which there were accounts and he does not know those cases were conducted in his name.
44. Continuing further, it is the evidence of PW2, he does not remember about the loan advanced to Syed Haroon and in the plaint in O.S. No. 345 of 1996, the signatures were there and in Ex. B2 plaint, he does not remember, why he had affixed his signature and at the time of Ex. A3 Power-of-Attorney Deed, the suit loan had not come in to existence and apart from Ex. A1 Loan Transaction there were no other transactions with the Respondents/Defendants. One week prior to 14.4.1993 the First Respondent/First Defendant had come to him and asked for loan and at the time he was in possession of Rs. 35,000/- and that the First respondent/First Defendant asked a loan of Rs. 1,00,000/- and the money had with him was earned by him out of Taxi driving and the balance of Rs. 15,000/- was received by him from his mother 2 or 3 days later and that 14.04.1993 at about 9:10 a.m. in the morning, the Respondents/Defendants had come to his house and when at the time of asking for the loan, he demanded the Second Respondent/Second Defendant should execute the promissory note and that he does not remember the name of Second Respondent/Second Defendant.
45. DW1 (First Respondent/First Defendant) in his evidence had deposed that for 15 years he knew PW1 and that one week prior to 14.04.1993 he had not asked for a loan either the Appellant/Plaintiff or with PW1 and it was not correct to state that he along with his wife had gone to the house of Appellant/Plaintiff and he had received the suit amount of Rs. 50,000/- and executed a suit promissory note and that he had not written the recitals of Ex. A1 promissory note and PW1 asked as a Process Server in Court and a Vigilance Enquiry was conducted against him and the Vigilance Officer then who conducted enquiry was a family friend from his school days, who used to come to his shop, PW1 also come to his shop and PW1 informed him that he should inform Dakshinamoorthy to release him from the enquiry with, he refused and because of that, enmity arose between them and that Ex. A1-Promissory Note was created in a forged manner.
46. DW1 (in his cross examination) had deposed that he had known the Appellant/Plaintiff as Taxi Cleaner at the Taxi stand and after seeing him at the Taxi stand, today only he had seen him in Court and that a suit loan notice had come to him and his wife, for which they had not given any reply, he had no enmity with Appellant/Plaintiff and he had no connection with the office proceedings initiated against PW1.
47. Ex. A1 is the promissory note dated 14.04.1993 purportedly executed by Respondents 1 and 2/Defendants 1 and 2 to and in favour of the Appellant/Plaintiff (later deceased) for a sum of Rs. 50,000/-. The rate of interest specified in Ex. A1-Promissory Note is one rupee interest for Rs. 100 per month viz., 12% p.a. on behalf of the Appellants/Plaintiffs. It is categorically contended before this Court that the First Respondent/First Defendant in his own handwriting has written the recitals of Ex. A1-Promissory Note. Therefore, it is submitted on behalf of the Appellants/Plaintiffs that the plea raised on behalf of the Respondents/Defendants that Ex. A1-Promissory Note is a forgery one and that it has not executed by him and his wife viz., the Second Respondent/Second Defendant, is untenable and incorrect one. In this connection, it is relevant for this Court to narrate the evidence of DW1 (First Respondent/First Defendant) that he along with his wife have availed loan from Indian Overseas bank, Bank of Tanjore, Tamil Nadu Bank, Central Bank, Bank of Madura and other than Bank of Madura, loan in respect of other bank loans, suits have been filed and decrees have been passed and that before the trial Court in O.S. No. 126 of 1983 his property has been brought for auction.
48. As per the ingredients of Section 118 of Negotiable Instruments Act, some presumptions are to be attached to a negotiable instrument till the contrary is established. However, before these presumptions can be drawn, execution of the instrument should be admitted or established. There is no presumption about execution of a negotiable instrument. In case of a denial by the other side, a person resting his claim on such instrument ought to fully prove its execution. If the execution of the promissory note is admitted, the presumption u/s 118(a) of Negotiable Instruments Act, arises. The said presumption is a rebuttable one by means of a circumstantial evidence or by presumption of fact drawn as per Section 114 of the Indian Evidence Act.
49. The presumption as per Section 118 of the Negotiable Instruments Act is one of Law. As such a Court of Law is to presume among other things that the negotiable instrument or the endorsement was made or endorsed for consideration. In short, it casts the onus of proof of failure of consideration on the maker of the note or the endorser. The term ''burden of proof has two meanings:-(i) the onus of proof as a matter of law and pleading, (ii) the burden of proof of establishing a case, the earlier one is static as a question of law on the basis of pleadings of the parties. It remains unchanged during the entire course of trial, but the latter is not static, it shifts the moment a party let in sufficient evidence to raise a presumption in his favour. The evidence to displace the onus may be through an oral and document evidence or even through admissions made by an opposite side. Also, it includes a circumstantial evidence or presumptions of law or fact.
50. As soon as the execution of the promissory note is established, Section 118 of Negotiable Instruments Act imposes a duty on the Court to raise a presumption in his favour that the said instrument is made up for consideration. A Defendant or the Defendants may let in direct evidence to prove that the promissory note was not supported by consideration. If he adduced a satisfactory and an acceptable evidence, the onus once again swings on to the Plaintiff and so on. A Defendant may also rely upon the circumstantial evidence and if the circumstances so relied upon are compelling, the onus may again shift to the plaintiff.
51. It is for the Defendant in a given case prima facie to allege and prove when he disputes the Plaintiff title to recover money based on the reason for want of consideration. Ordinarily, the fact that a payee has not produced his account books makes little different. In a case of rebuttable presumption, a Court of law is always forced to rely more upon circumstantial evidence than upon direct or definite evidence negative in the facts presumed. If the Plaintiff is a professional money-lender who deliberately suppressed his account books, the Court of law was entitled to draw an adverse inference that his case that he advanced money to the Defendant was not true as per decision in
52. In Law no admission of execution is warranted as per Section 118 of Negotiable Instruments Act. It cannot be gain said that what is required is proof of execution of the promissory note. A promissory note, in Law, is a complete document by itself. If it is proved that the promissory note is made up for consideration then no other proof is required.
53. As far as the present case is concerned, it is the clear cut evidence of DW1 (First Respondent/First Defendant) that the Appellant/Plaintiff (later deceased) was known to him as a Cleaner in the Taxi stand and that he does not know in which taxi he served as a Cleaner and also that the Appellant/Plaintiff had no travels business and that the Appellant/Plaintiff and his father were living in the same house and that he had not gone to the house of Sambantham.
54. Ex. B1 is the certified copy of Plaint in O.S. No. 345 of 1996 on the file of Learned District Munsif, Chidambaram. A perusal of Ex. B1 certified plaint copy shows that the Appellant/Plaintiff (Ganesh) had filed a suit against one Syed Haroon for recovery of sum of Rs. 16,000/- based on the execution of promissory note dated 01.08.1993. Ex. B2 is the certified copy of plaint in O.S. No. 345 of 1996. Ex. A4 is the xerox copy of the sale agreement dated 23.02.1996 entered into between Rajmohan and N.A.S. Ansari (First Respondent/First Defendant).
55. It is the specific evidence of PW1 (Appellant/Plaintiff''s Power Agent) that prior to the suit promissory note, there is no acquaintance between the Appellant/Plaintiff and the Respondents/Defendants. It is to be remembered that PW1 is the father of Appellant/Plaintiff viz., Ganesh (later deceased). PW2 Appellant/Plaintiff (later deceased), before the trial Court has in his evidence denied the suggestion that he had no means to advance the sum. Also, an important fact that could not be ignored in the present case is that PW1 in his evidence had clearly mentioned that at the time of coming into the existence of Ex. A3-Power Deed dated 31.03.1994, the suit amount was not paid as such. It is the tacit admission of PW2 that there was no debt as projected by the Appellant/Plaintiff (later deceased). To put it succinctly, when there is candid admission of PW2 that there was no debt/loan at the time of execution of Ex. A3-Power Deed, then the case of the Appellants/Plaintiffs that the suit promissory note was supported by consideration is not proved before this Court, in the considered opinion of this Court. As stated already in Ex. A3-Power Deed dated 31.03.1994 it was not mentioned that the Appellant/Plaintiff (later deceased) had given power to his father to file the suit.
56. Though PW2 (son of PW1) in his evidence (cross examination) has stated that the First Respondent/First Defendant prior to 14.04.1993 has requested for a loan from him and at the time, he has been in possession of Rs. 35,000/- and that the First Respondent/First Defendant had asked for a loan of Rs. 1,00,000/- and that the amount that he possessed was earned from out of his taxi driving and that he received the balance sum of Rs. 15,000/- from his mother two or three days later etc., he had not produced any documentary proof to establish that he was running a shop and travels at Pondicherry. Equally, no documentary proof was produced before the trial Court to show that PW2 is running a business at Pondicherry. PW2 also deposed (in his chief examination) that he received a sum of Rs. 30,000/- through his mother. Before the trial Court PW2 (Appellant/Plaintiff) had not examined his mother to establish that he received a sum of Rs. 30,000/- from her and also that later he received a sum of Rs. 15,000/- from her two or three days later before the advancement of debt. In short, this Court is of the considered view that means of PW2 (Appellant/Plaintiff) to advance a sum of Rs. 50,000/- to the Respondents/Defendants under Ex. A1-suit Promissory Note was not proved to the subjective satisfaction of this Court.
57. Coming to the evidence of PW2 that he advanced loan to friends and near persons of his father from the year 1990 for which there are accounts, it is be pointed out by this Court that he had not produced the accounts to prove that he advanced money viz., the suit sum of Rs. 50,000/- under Ex. A1-Promissory Note to the Respondents/Defendants during the year 1993.
58. As per Section 34 of the Indian Evidence Act, if the entries, in the books of account, duly maintained, in the ordinary course of business, are corroborated, through other evidence, the same, are admissible, in the considered opinion of this Court. As a matter of fact, Section 34 of the Indian Evidence Act, prescribes two things:-(i) that all entries in books of account regularly kept in the course of business are relevant and therefore admissible whenever they refer to a matter into which the Court has to enquire. Such books are not inadmissible because they are not corroborated. An entry is relevant notwithstanding that the individual who made the entry and who is alive has not been examined to prove the transaction to which the entry relates. (ii) that such entries though admissible are not enough to fasten a person with liability unless there is some other independent evidence of the transaction. Indeed, whether the Defendants take objection or not, a Plaintiff relying on account books should prove (1) that the books are kept in regular course of business; (2) the particular entries and (3) must give some corroborative evidence. If it is sought to use the entries as substantive evidence as per Section 32 of the Indian Evidence Act, sufficient evidence ought to be given for the purpose.
59. The entry may not be made exactly at the time of occurrence; it is enough, if made within a reasonable time, so that it may appear to have taken place while the memory of the fact is recent, or the source from which a knowledge of it is derived, is unimpaired. There is no presumption of correctness attaching to the entries in books. Mere proof of the existence of some entries in books is not enough. The law requires proof not only of account books generally, but of each item. However, where the transactions are numerous and extend over long during the years it is not essential to prove each item, but only specific disputed entires. More importantly, it is necessary to establish that the books have been regularly kept in the course of business. It is not sufficient to prove the correctness of the books; the entries themselves have to be proved. In the present case on hand, PW2 has not produced the accounts or the account books and therefore, the adverse inference will have drawn against the Appellant/Plaintiff (later deceased).
60. Section 2(8) of the Tamil Nadu Money Lenders Act, 1957 enjoins as follows:-
(8)"money-lender" means a person whose main or subsidiary occupation is the business of advancing and realizing loans, but excludes a Bank or a Co-operative Society.
61. Section 3 of the Act speaks of the money-lenders to obtain a licence. Section 9 of the Act specifies a money-lender to keep books, give receipts, etc., Rule 8 of the Tamil Nadu Money-Lenders Rules, 1959 directs the money-lender to file a statement of account as per Section 9(1)(c) of the Act which shall be in Form E.
62. Form C [See Rule 6] Tamil Nadu Account book is as follows:-
FORM C
[See Rule 6]
ACCOUNT BOOK
Name of the money-lender:
Full address:
Number and date of licence of the money-lender:
1. Number of loan
2. Name and address in full of the debtor
3. Date of loan
4. Amount of the principal of the loan
5. Rate of interest charged on the loan
6. Nature of the security, if any,
7. The amount of the every payment account of the principal received by the money-lender
8. The amount of every payment on account of the interest received by the money-lender in respect of the loan
9. Date of such payment
10. Signature of the money-lender or his agent and date
Note: All entries in the book shall be recorded then and there.
63. The Form E [See Rule 8] under caption ''Statement of Account'' runs thus:-
FORM E
[See Rule 8]
STATEMENT OF ACCOUNT
Name of the money-lender:
Full Address:
Number and date of licence of the money-lender:
1. Name of debtor
2. Number of loan
3. Date of loan
4. Amount of the principal of the loan
5. Nature of the security, if any
6. Rate of interest charged
7. The amount of every payment on account of the principal received by the money-lender in respect of the loan
8. The amount of every payment on account of the interest received by the money-lender in respect of the loan
9. Date of such payment
10. Amount remaining outstanding on account of the principal
11. Amount remaining outstanding on account of the interest
12. Signature of the money-lender or his agent and date
64. There was no tangible reason/explanation furnished on the part of the Appellant/Plaintiff as to why the Account Books were not produced before the trial Court to establish that the Appellant/Plaintiff (since deceased) has lent a sum of Rs. 50,000/- under Ex. A1-Suit Promissory Note on 14.4.1993 in a civil case. It is the duty of the Appellants/Plaintiffs to prove their case. They could not succeed on the loopholes or weaknesses of the Respondents/Defendants. In short, this Court holds that the Appellants/Plaintiffs had not established to the subjective satisfaction of this Court that the Appellant/Plaintiff (since deceased) possessed the requisite means to lend a sum of Rs. 50,000/- under Ex. A1-Promissory Note dated 14.4.1993 to the Respondents/Defendants. Hence, it is held by this Court that the Appellants/Plaintiffs had miserably failed to prove their claim/case.
65. Although a plea was taken on the side of the Appellants/Plaintiffs that the First Appellate Court committed an error in setting aside the well reason Judgment of the trial Court in finding that the promissory note was written in his own handwriting of the first Respondent/first Defendant and the said reason is opposed to Order 41 Rule 31 of Civil Procedure Code, this Court opines that although the first Appellate Court in A.S. No. 12 of 1998 has framed an Omni Bus and wholesale point for determination viz., whether the Plaintiff is entitled the suit claim as prayed for? Yet the same will not fetter this Court to deal with the merits of the matters/contraverses involved between the parties in threadbare because of the fact as a Second Appellate Court viz., it has kept in mind the pleading and taken note of the specific and rival contentions put forward on either side and has arrived at an independent Judgment, applying its judicial thinking mind while reassessing the entire gamut of oral and documentary evidence available on record. Also, that the very fact that PW2 deposed in his evidence that from the year 1990 he lent money to his friends and also to the persons known to his father for which there are accounts unerringly point out that PW2 is a professional money lender. As per Tamil Nadu Money-Lenders Act, 1957 and under Tamil Nadu Money Lenders Rules, 1959 the Books, Statement of Accounts etc., are to be submitted. But no Account Books were produced before the trial Court on behalf of the Appellant/Plaintiff (later deceased) to establish the suit transaction. Also that, when the Appellant/Plaintiff (later deceased) had advanced loan to friends and near persons as deposed by P.W. 2, then it cannot be said that he is not a professional money lender in his avocation. Equally, it cannot be said that he is not required to maintain Account Books, when the Tamil Nadu Money Lenders Act, 1957, together with Rules speak for maintenance of the same. Accordingly, the Substantial Questions of Law No. 3 and 4 are answered against the Appellants/Plaintiffs. Consequently, the second appeal fails. In the result, the Second Appeal is dismissed leaving the parties to bear their own costs. Resultantly, the Judgment and Decree of the first Appellate Court in A.S. No. 12 of 1998, dated 25.04.2001 are affirmed by this Court for the reasons assigned in this appeal.
