B.A.DURAISWAMY Vs. A.S.KANDASWAMY

JUDGEMENT

(1.) The judgment and decree passed in O.S.No.32 of 2011 dated 29.06.2018 is under challenge in the appeal suit on hand.

(2.) The facts set out in the plaint in nutshell are that the defendant on 12.03.2008 at Chennimalai, borrowed a sum of Rs.10,00,000/- from the plaintiff for the urgent purpose of his family and business expenses and executed a promissory note in favour of the plaintiff. On the same date, the defendant agreed to repay the said amount with interest at the rate of Rs.1.00 per hundred per month either on the demand of the plaintiff or his order. The defendant owns considerable movable and immovable properties and also doing business profitably. Thus, the defendant is not entitled to claim any debt relief enactment of Tamil Nadu. The plaintiff is entitled to claim interest at the contractual rate i.e., 12% per annum. The plaintiff states that in spite of repeated demands made by the plaintiff to the defendant for payment of the principal and interest, the defendant failed and neglected to pay the same and thereafter, the plaintiff filed an application in I.P.No.2 of 2010 on the file of Sub-Court, Perundurai against the defendant and the purchaser and the said insolvency proceeding is pending for adjudication. Consequently, he filed the suit for recovery.

(3.) The defendant filed the written statements, denying the averments in the plaint and has stated that allegation of rivalry of Rs.10,00,000/-(Rupees Ten Lakhs only) at Chennimalai on 12.03.2008 and the execution of promissory note agreeing to repay the said amount with interest at the rate of 12% per annum is false and denied. The plaintiff filed I.P.No.2 of 2010 on the file of Sub Court, Perundurai and the same is pending. The suit promissory note dated 12.03.2008 is a forged one an the defendant never borrowed Rs.10,00,000/- from the plaintiff on 12.03.2008 and never executed the suit promissory note. The defendant had no necessity to borrow such a huge amount of Rs.10,00,000/- on 12.03.2008 and the plaintiff has no means to advance the said amount in cash. The plaintiff is a retired teacher and doing yarn and cloth business in the name and style of India Tex and Himalaya Fabrics and the defendant is having a power loom factory at Kavundapady. The defendant was having business dealing with the plaintiff for purchase of yarn. Due to supply of interior quality of yarn, the defendant stopped his business dealings with the plaintiff and since then the plaintiff is not in cardial terms with the defendant. The plaintiff demanded the defendant to sell his Chenimalai properties for Rs.9,00,000/-, but the defendant refused and on 12.05.2008, the defendant sold his properties under two sale deed for Rs.10,72,100/-. By saying all these facts, the defendant claimed that the suit is to be dismissed.