(1.) -This second appeal is directed against the judgment of the learned District Judge, Salem in A.S. No. 233/84 in confirming that of the learned District Munsif Salem in O.S. No. 260/75. The first defendant in the suit is the appellant in the present second appeal.
(2.) The suit was filed by the plaintiff/Indian Bank for a sum of Rs. 3,795/- being the principal and interest allegedly due on the promissory note executed by the defendant on 13.4.1970. According to the plaintiff, the promissory note was executed, the defendant promising to pay the amount on demand with interest at the rate of 4%. The defendant also executed a deed of hypothecation on 13.4.1970 hypothecating a new 5 HP Electric Motor Pumpset for the due payment of the loan. As the defendant did not clear the loan inspite of numerous demands, he had given a letter of acknowledgement duly stamped and signed by him dated 6.3.1973 whereby he has acknowledged his liability under the promissory note dated 13.4.1970. Without paying the amount demanded, the defendant had sent a letter dated 30.11.1974 contending that he had sent an application through one P.A. Manickam for the loan and that he did not receive any pumpset and that, all of a sudden, on 6.9.1973 the officers of the Bank came to the village along with the village Munsif and a police constable and had obtained certain papers signed by him by force. According to the plaintiff, the allegations in that letter were false and that there was no threat or coercion on the part of the plaintiff. Inspite of registered notice, the defendant was dodging payment of the amount and hence, the suit.
(3.) In the written statement filed by the defendant, he contended that one P.A. Manickam was dealing and supplying pumpsets under the name and style of "Jagadeesh Electricals". Even though the said P.A. Manickam was said to have his place of business at Vazhapady, he did not do his business at Vazhapady and he took some signatures of the defendant for the loan from the plaintiff for the purpose of pumpset, but he did not receive any pumpset. In the notice dated 24.12.1974, the plaintiff has referred to the hypothecation agreement and the said allegation in the plaint pursuant to the execution of the hypothecation deed would not arise for consideration as no pumpset was supplied to the defendant. The Bank Authorities should have inspected the premises and their inspection notes would disclose that they had not made any inspection since they are aware of the fact that no motor pumpset had been supplied to the defendant. The defendant further submitted that he had paid Rs.750/- to the plaintiff through the said P.A. Manickam and similarly, a sum of Rs. 1,000/- was directed to be deposited by the defendant on behalf of his wife Palardammal in whose name also an application was made for the purchase of an oil engine. But, till date no oil engine was supplied to his wife. The amount of Rs. 1,000/- was also not returned to his wife. According to the defendant, the agent of the Indian Bank and the said P. A. Manickam had connived with each other and the amount was not disbursed to the defendant as well as to his wife. The defendant would further submit that in all the transactions entered into by banking institutions, the person who seek loan are required to deposit a portion of the loan, but in the instant case, the defendant was asked to deposit 1/4th of the money and he deposited Rs.750/- The defendant neither received any amount from the Bank nor from the said Manickam. He also did not receive any electric motor pumpset from the said Manickam. While executing the hypothecation deed, the same was not read over to him and the defendant in his enthusiasm, for getting the electric motor had signed all papers as required by the said Manickam. The other allegations in the plaint were denied and as regards the acknowledgement alleged to have been sent by him dated 6.9.1973, he would state that two officials from the Bank, a peon and a driver came to his residence on 6.9.1973 and took his signatures in some papers. The defendant would also state that he has now learnt that there were many cases where proceedings have been launched for the recovery of the amount allegedly due from the ryots for the purchase of electric motors and that inspection disclosed that no motor had been purchased by the ryots nor any motor was supplied to them but the amount had been squandered by some intermediaries. The defendant further contended that the alleged sum of Rs. 2,245/- due on the promissory note must have been appropriated by the said PA. Manickam with the connivance of the agent of the plaintiff's Bank. The description of the motor does not even disclose any number and if really, any amount advanced towards the purchase, there had been receipt and if the electric motor had been supplied, the number of the electric motor would have been noted. These facts will show that right from the beginning, no goods were supplied to the defendant.