TMI Blog2023 (11) TMI 1023X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 confirmed the same by writing and stated that the entire amount would be paid by 19.10.2016. But she did not keep up her promise. On 01.12.2018 the 1st defendant had also confirmed pending dues to a total sum of Rs. 2,18,50,000/-and had undertaken to repay the same on or before 30.12.2018 in the presence of his wife Sheela ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ough 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 Venugopal, no prudent person will keep on advancing money to someone who did not make any repayment. The bank records of Sheela Venugopal would indicate that money had flowed from the account of Sheela Venugopal to Plaintiff as well. Since huge amount is said to have got obtained by way of loan, the plaintiff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 valid and supported by consideration? (iii)Whether the suit is barred by limitation? (iv)Whether the 1st defendant has acknowledged the liability as claimed by the plaintiff? (v) Whether the plaintiff is entitled to get the decree as prayed for? (vi) To what reli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 discharged other liabilities of Sheela Venugopal to those persons who had produced the proof of payment from her share in the property. The plaintiff has not proved her financial capability to lend a huge sum of Rs. 2.50 crore to Sheela Venugopal. The plaintiff who i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en 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 even in case a slightest doubt arises, it should be referred to an handwriting expert. The essential paragraphs are extracted as under: 37. This Section consists of two parts. While the first part provides for comparison of signature, finger ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 contention that the 1st defendant's wife, Sheela Venugopal, had executed Ex.P1 promissory note only for a valuable consideration. Though the plaintiff has not shown documents to prove that she had lent money to Sheela Venugopal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is 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 law. Hence, the promissory note Ex.P1 is proved to be true, valid and supported by consideration. Issue No. 2 is answered accordingly. 24. Though the first defendant has claimed that the suit is barred by limita ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laintiff 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 of the decree and till the date of its realisation at the rate of 6% interest per annum and the suit is partly dismissed in respect of the rest of the suit claim. Time for payment 3 months. - - TaxT ..... X X X X Extracts X X X X X X X X Extracts X X X X
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