T A UMAPATHY Vs. T A MASILAMANI

JUDGEMENT

(1.) This is an appeal by the defendants to the suit, O.S. No. 364 of 1975 on the file of the Subordinate Judge of Salem, filed by the respondent herein on a promissory note, which was decreed as prayed for by the trial Court. The respondent laid the suit for recovery of a sum of Rs. 12,931/- due on Exhibit A-9, the suit promissory note dated 12-2-1973 executed by the appellants-defendants in favour of one Kandaswami Gounder of Peramampalayam for Rs. 10,000/. Exhibit A-1 is the endorsement of assignment dated 15-5-1975 made on the reverse of the promissory note by the said Kandaswami Gounder in favour of the respondent herein after receiving the consideration due under the promissory note. The case of the plaintiff-respondent was that the appellants borrowed Rs. 10,000/- from the promisee, Kandaswami Gounder, on 12-2-1973, for their family necessity and for their lorry business expenses and executed the promissory note for the said sum agreeing to pay back the same with interest at 12 per cent per annum to the promisee or his order. The appellants had not paid any amount towards the debt in spite of demands by the promisee. The promisee, Kandaswami Grounder, endorsed the promissory note to the plaintiff after receiving a sum of Rs. 12,700/- towards principal and interest and the assignment of the pronote is Exhibit A-1. Even after the plaintiff-respondent informed the appellants of the assignment of the promissory note in his favour and demanded payment of the debt, the appellants did not pay any amount either towards the principal or towards the interest. The appellants are not agriculturists entitled to the benefits provided under Act IV of 1938. On the above allegations the respondent prayed for a decree for a sum of Rs. 12,931/- inclusive of interest till the date of the plaint.

(2.) The appellants filed written statement contending that they never borrowed a sum of Rs. 10,000/- from Kandaswami Gounder on 12-2-1973 for any family necessity or for any lorry business expenses. Only after perusing the plaint allegations, the appellants came to know that Kandaswami had advanced a sum of Rs. 10,000/- to them. One A.P. Kolandaivel was running a chit company under the name and style of A.P. K. Chit Funds at Tiruchengode. The first appellant, being a subscriber, had to pay a sum of Rs. 250/- per month for 24 months and the chit began on 17-11-1972. The chit was being auctioned every month. The first appellant bid the chit amount at the auction in the fourth month far Rs. 2,900/- and as per custom and usage of the chit company, the inchoate instrument was taken from the first appellant with the second appellant as surety for him and a separate security bond was also taken. Even after the bidding, the first appellant was regularly paying to the stake-holder the monthly subscriptions of Rs. 250/- after deducting the kasar amount. He had paid up to 25-6-1975 and all payments were made and receipts were duly obtained. There are misunderstandings between the respondent and the appellants with respect to a house property and also regarding the pledging of certain jewels. The respondent and the appellants are entitled to a half share each in the house property. There is also a criminal complaint lodged by the second defendant for the respondent not returning the pledged jewels even after receiving the money therefor. The respondent, in turn, has filed a suit against one Manikka Gurukkal for slander and defamation for the latter having given evidence in the criminal case in support of the second appellant. As he knew full well that no suit could lie for defamation on the facts, the respondent allowed the said suit to be dismissed without costs. The respondent also filed another suit against the second appellant in O. S. No. 837 of 1974 in the trial Court for slander and defamation for the latter having filed a criminal complaint against him with regard to the non-return of the pledged jewels. The respondent also conspired with the said Kolandaivel and has introduced one Kandaswami, a fictitious person in the suit promissory note to give a colour of reality to the transaction and subsequently, he has purported to take an assignment of the said promissory note and has filed the suit as if he is a bona fide holder in due course. Had the respondent sent any notice of assignment or demanded payment from the appellants, they would certainly have come out with the real facts exposing the fraud played on them by the respondent. No notice was in fact sent by the respondent, either orally or in writing. The appellants are entitled to the benefits under the Tamil Nadu Agriculturists Relief Act and other Ordinances. On the ground that the respondent had filed a vexatious suit against them, the appellants claimed that the suit should be dismissed with exemplary costs of Rs. 1,000/- to them. The appellants filed an additional written statement contending that the assignment of the promissory note is a fabrication. According to them, Kandaswami, the alleged original holder of the promissory note, died long prior to the date of the assignment and hence he could not have assigned the instrument on 15-5-1975. The respondent has managed to get the assignment by forging the signature of Kandaswami.

(3.) In his reply statement, the respondent denied that Kandaswami died even before the date of the assignment and stated that as a matter of fact, he died only subsequent to 14-8-1975 and that the appellants were well aware of this fact. He also denied the allegation that the assignment is a forgery.