RAMASWAMI PILLAI Vs. T S SOUNDARAPANDIA MUDALIAR

JUDGEMENT

(1.) This is an appeal preferred by Ramaswami Pillai-the plaintiff against the judgment and decree dated 14.8.1979 in O.S.No.472 of 1978 on the file of the learned First Additional Subordinate Judge, Tirunelveli on a suit based on a promissory note, granting a decree for recovery of Rs.358.50 with proportionate costs.

(2.) The case of the plaintiff/appellant before the lower Court is as follows: The defendant/respondant herein accepting cash consideration of Rs.7,000 and undertaking to pay interest of 9% per annum executed a promissory note dated 23.11.1972. But he has not paid any part of the principal or interest. The appellant demanded the money through a notice issued by his advocate. The respondent gave a reply making false allegations. The averments in the reply notice are not supported by bona fides. Hence the suit was laid.

(3.) In his written statement beforer the lower Court, the defendant/respondent admitting the execution of the promissory note dated 23.11.1972 denied the averments in the plain and contended as follows: He never accepted consideration of Rs.7,000 on the date of promissory note or any other date. The appellant is hiding the real facts and has come forward with the suit falsely. The appellants maternal grand-father Sivasubramania Pillai was an usurious money-lender. He used to get pronotes for amounts by far in excess of the actual amount paid to the promissor. While so, on 13.9.1959 the respondent accepting a loan of Rs.400 from Sivasubramania Pillai executed a promissory note for Rs.500. Though pro-note purports to stipulate interest at the rate of 12% per annum, as per the oral arrangements between the parties, defendant/respondent was paying interest at the rate of 18%. The respondent therefore was paying Rs.25 towards interest every month. On 22-12-1959 the respondent paid the entire interest. To this effect he made an endorsement also. Subsequently on 7.7.1960 the respondent made an endorsement of payment of Rs.10. Lastly on 27.1.1967 the balance of interest together with principal was arrived at Rs.481-10-2 (Rs.481 Anas 10, Paise 2). On that day, the respondent accepting another loan for Rs.1,000 and for the aggregate sum of Rs.1481-10-2, he executed a pro-note for an enhaced sum of Rs.2,000 on 27-1-1967 in favour of Selva Gomathiammal mother of the appellant. Though 6% interest is charged in the pro-note, it was agreed that the defendant/respondent should pay interest at the rate of 18% per annum. At this rate, the respondent paid interest upto 3.1.1971. In the meanwhile, the respondent owed a sum of Rs.3,000 to one Subramania Mudaliar of Avarakadu. With a view to discharge that debt, the respondent and his son jointly borrowed a sum of Rs.3,000 from the appellants maternal grand-father Sivasubramania Pillai. For this amount, the respondent and his son jointly executed a pronote for the enhanced amount of Rs.4,500 on 15.8.1968. Though the interest charged in that pro-note was only as per agreement between the parties, the respondent herein was paying interest at the rate of 18% per annum. While so, Sivasubramania Pillai, on behalf of Selva Gornathiammal, issued a notice dated 28.12.1970 asking for repayment of the debts covered by the pronote dated 27.1.1967 executed in favour of Selva Gornathiammal and also the pronote dated 15-8-1968. Upon acceptance of notice, the respondent paid interest in respect of both the pronotes upto 10.3.1971. Subsequently on 23.11.1972 the respondent was found in arrears of Rs.156 only towards both the pro-notes. The appellant has taken the suit pronote dated 23-11-1972 for the amounts covered by the two prior pro-notes dated 27.1.1967 and 15-8-1968 as well as the balance of interest amounting to Rs.156. While executing the suit pronote, Lakshmana Pillai, father of the appellant, on behalf of the respondent wanted the pronote to be executed for Rs.7,000. The suit pro-note is in renewal of the old pro-note only. The appellant herein had no financial capacity to pay Rs.7,000 in a lump sum at the time of Ex.A.1 pro-note. The appellants maternal grand-father Sivasubramania Pillai left no issues except Selva Gornathiammal. The appellant is her only son. Selva Gornathiammal is living with her family in the house of the said Sivasubramania Pillai. The respondent is entitled to the benefits of Act 4/1938 as amended by Act 8/1973 and also under Act 40/1978. There was no instance of the appellant borrowing Rs.5,000 from one V.Sivasubramania Pillai of Pananjadi. He was a servant of the appellant. He had no capacity to pay Rs.5,000 by way of loan. The recitals were falsely made just to give colour of genuineness. The Suit is barred by limitation. The explanation for the delay in filing the plaint is not correct. To the appellants notice, the respondent has given reply disclosing the real facts. In as much as the debt is completely wiped out, the appellant herein is not entitled to any relief. On the other hand, the respondent is entitled to compensatory costs.