V.S. VEERASAMY Vs. K. SUBRAMANIAM

JUDGEMENT

(1.) The defendants in O.S.No.1023 of 1994 on the file of the Second Additional Subordinate Judge, Coimbatore are the appellants. The respondent/plaintiff filed a suit for recovery of a sum of Rs.8,28,000/- with subsequent interest from the appellants / defendants and the Court below passed a preliminary decree for a sum of Rs.4,72,000/- and aggrieved by the same, this Appeal is filed.

(2.) The case of the respondent/plaintiff is as follows:-

(3.) The first defendant filed a statement denying the allegation that on 27.1.1992, he and his wife borrowed a sum of Rs.20,000/- and executed a mortgage deed and also borrowed a sum of Rs.6,00,000/-on 6.5.1992 and executed 2 promissory notes and created an equitable mortgage in favour of the plaintiff agreeing to repay the same with 15% interest per annum. But, the defendants admitted that they borrowed a sum of Rs.2,00,000/- from the plaintiff on 27.1.1992 and executed a mortgage deed for a sum of Rs.20,000/- as per the request of the plaintiff and also executed 6 blank promissory notes and handed over the same to the plaintiff. Out of the six blank promissory notes, 2 promissory notes were signed by the first defendant and 2 promissory notes were signed by the second defendant and the remaining 2 blank promissory notes were signed by both the defendants. The plaintiff also obtained the title deeds of the property as a further security and also got further 4 blanks cheques signed by the first defendant drawn on Union Bank of India. Thereafter, the first defendant paid a sum of Rs.89,000/- on various occasions through Account Payee Cheques drawn on State Bank of Bikaner & Jaipur in favour of the plaintiff. Subsequently, the first defendant issued 3 cheques for a total sum of Rs.59,000/- in the name of Lakshmana Perumal and two cheques for a total sum of Rs.14,000/- in the name of Rangasamy, who was a close associate of the plaintiff and therefore, the defendants have paid a sum of Rs.1,60,000/- towards the loan received by them. On 18.2.1994, balance was arrived at and the plaintiff agreed that the defendants were liable to pay Rs.1,37,000/- and a cheque bearing No.749016 drawn on State Bank of Bikaner and Jaipur for the amount was issued on 5.4.1994. That cheque was returned by the plaintiff on the request of the first defendant as he could not raise the fund and thereafter, the first defendant issued 4 post dated cheques drawn on State Bank of Bikaner and Jaipur bearing Nos.749047 to 749050 dated 5.7.1994, 10.7.1994, 18.7.1994 and 2.8.1994 for a sum of Rs.45,000/-, Rs.50,000/-, Rs.21,000/- and Rs.21,000/- respectively. However, the first defendant was not able to raise funds for the first two cheques and therefore, issued a letter to the plaintiff dated 2.7.1994 requesting the plaintiff not to present the two cheques dated 5.7.1994 and 10.7.1994 on the respective dates and requested him to present those cheques on 20.7.1994 and 27.7.1994. The plaintiff agreed to the request of the first defendant and returned 2 cheques bearing No.749049 and 749050 which were issued for a sum of Rs.21,000/- each and demanded fresh 2 cheques and the first defendant issued two cheques drawn on Lakshmi Vilas Bank on 18.4.1994 and 2.8.1994. In those 2 cheques, the first defendant filled up the amount and those 2 cheques were realised by the plaintiff through one Murugesan and therefore, the defendants are liable to pay only a sum of Rs.95,000/- against the loan of Rs.2 lakhs received. The plaintiff also presented Cheque Nos.749047 and 749048 by filling the payee's name as Balaji and those cheques were dishonoured and the payee Balaji filed a criminal complaint against the first defendant in C.C.No.745 of 1994 before the Judicial Magistrate No.1, Coimbatore and the criminal case was also dismissed on 28.2.1996. Therefore, according to the first defendant, he was liable to repay only Rs.95,000/- and he never borrowed Rs.6,00,000/- as alleged by the plaintiff.