KALYANASUNDARAM Vs. M. KUMARAVEL

JUDGEMENT

(1.) The plaintiff is the appellant before this court. The suit filed by the appellant herein for recovery of money based on the pro-note executed by the respondent herein was allowed by the trial court, whereas reversed by the Appellate Court disbelieving the endorsement made on the said pro-note for partial payment and saving of limitation. Aggrieved by that, this appeal has been preferred on the ground that when the signature found on the endorsement marked as Ex.A2 is admitted by the respondent-defendant, the first appellate Court ought not to have disbelieved the said endorsement to de-suit the plaintiff. Further, it is contended by the appellant that the first appellate Court has given a finding on the genuineness and validity of exhibit A2 endorsement without any pleadings and issue framed in this regard.

(2.) To understand the lis before this court, the facts of the case is extracted below:

(3.) After getting made over of the pro-note, the appellant-plaintiff has demanded repayment of the money borrowed, but the respondent-defendant neglected to pay. Hence, a notice dated 08.01.2000 was served on the defendant, which was duly replied by the defendants through his counsel on 22.01.2000, which led to causing a re-joinder dated 26.01.2000 by the plaintiff. These three documents are marked as Ex. A.4 to Ex. A.6 respectively. Since, the respondent has not repaid the money as per the pro-note, suit has been laid for recovery of the principle and interest accrued upon the money borrowed against the pro-note. The said suit was contested by the defendant-respondent on the ground that he borrowed Rs.1,00,000/- from Preemier Investment Corporation, Tiruppur, a partnership firm consisting of P.K. Periyasamy, A.K.C. Thiyagarajan and K. Velmurugan as his partner and executed a pro-note for the same. He never made an endorsement on 18.11.1997 as alleged in the plaint. Contrarily, on 01.05.1998, P.K. Periyasamy, one of the partner of the financial company viz.,Preemier Investment Corporation, informed him that the income tax authorities raided the Corporation premises and seized all the pro-notes and other documents from the premises and therefore, he was not in a position to return the original pro-note but demanded the repayment of the loan amount borrowed by the defendant against the said pro-note. Accordingly, he repaid the entire due borrowed against the pro-note based on the promise made by P.K. Periyasamy that he would return back the original pro-note once he get back from the income tax department. As a surety, the said Periyasamy executed a pro-note of Rs. 1,00,000/- Ex.B.1 in favour of the defendant on 01.05.1998.