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IN THE COURT OF THE I ADDITIONAL SUBORDINATE JUDGE

MADURAI.
Present: Tmt.M.AKILA DEVI, M.L.,
I Additional Sub Judge, Madurai
Thursday, the 14th day of December 2023
O.S. No.851/2019
CNR.No.TNMD08-002563-2019

M.Balasubramanian ...Plaintiff

-Vs-

1. S.Lakshmi @ Kottaiammal
2. S.Gnanasekaran
3. S.Sakthivel
4. S.Chandralekha ..Defendants

This suit is brought before this court for final hearing on

13.12.2023 in the presence of Thiru.R.Gangadharan, Counsel for the
Plaintiff and of Thiru.K.Muthukumar, Counsel for the defendants and
upon hearing both side argument and upon perusing the evidence and
documents and having stood over for consideration till this day, this court
delivered the following:
JUDGMENT

This is a suit for recovery of money to direct the

defendants to pay the plaintiff a sum of Rs. 4,82,134/- together future
interest on Rs.4,00,000/- till realization of the amount and for costs.
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2. The brief averments in the plaint are as follows:

The plaintiff stated that the plaintiff and 2 others have

jointly purchased a building situated in Door No.131, T.S.No.772 & 773 at
West Masi street, Madurai. So, the plaintiff had 1/3 share in the building.
The plaintiff wanted to sell his 1/3 share. In this connection, the plaintiff
executed a General power of Attorney in favour of one Sethuraman vide
document No.11531/BK4/2014 dated 26.12.2014. The said Sethuraman
sold the building to one Satheeshkumar S/o Jeyaraman through a registered
sale deed vide document No.1009/2016 dated 04.02.2013. But the said
Sethuraman has not settled the entire amount as stated in the power of
attorney. The said Sethuraman was making extraordinary delay in paying
the balance amount of Rs.4,00,000/­ to the plaintiff in connection with the
said sale. Finally the said Sethuraman gave 2 cheques of State bank of
India, West Tower Street Branch, Madurai to the plaintiff in the month of
January 2017 for the amount of Rs.4,00,000/­. So the plaintiff has presented
the said 2 cheques for collection in ICICI Bank, South Masi Street Branch,
Madurai where the plaintiff is having account. But on 14.03.2017 the said 2
cheques were returned with an endorsement that the funds In sufficient. So,
the plaintiff has issued legal notice through his advocate on 04.04.2017 to
the said sethuraman, who received the legal notice on 05.04.2017. But no
reply was given by the said Sethuraman. The plaintiff has filed a case U/s
138 of Negotiable Instruments Act STC No.541/2017, against the said
Sethuraman before the Fast Track no.I, Magistrate level, Madurai and the
said Sethuraman appeared before the court. While the same was pending,
the advocate for the accused said sethuraman filed a Memo by stating that
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the said Sethuraman died. So, the Hon'ble Court Pronounced Judgment on
09.10.2018 as the case is dismissed as the charge is abated. The plaintiff is
entitled to recover the cheque amount of Rs.4,00,000,/­ with interest from
the legal heirs of the deceased Sethuraman. So the plaintiff has issued legal
notice to all the legal heirs of the deceased Sethuraman on 30.11.2018. The
legal heirs of the deceased Sethuraman received the notice. But neither paid
any amount and nor sent any reply. After the death of said Sethuraman his
legal heirs became the owner of his properties. So, the legal heirs are bound
to pay the suit amount. Hence the plaintiff has filed a suit for recovery of
money of Rs.4,00,000/- with interest from the defendant. Hence this present
suit.

3. The brief averments of the Written Statement filed

by defendants is as follows:

The defendants are denied all the allegations stated in

the plaint except those that are admitted in the written statement. The 2 nd
defendant is residing at Thiruppur for the past 15 years and the 4 th
defendant is residing at Chennai. The suit is filed only on the basis that the
legal of the deceased are liable to pay the personal decree of the deceased .
Even assuming that if the claim of plaintiff is genuine and valid he is
entitled to get relief only from the assets of the deceased. The suit itself as
framed claiming personal decree against the legal heirs of deceased's due is
not maintainable under law and on facts. The suit itself is barred by law of
limitation. The defendant stated that the claim of interest at 24% per annum
is excessive exorbitant and also hit by usurious Loans act and the claim of
interest at the rate of 24% is not maintainable under law and on facts. The
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court fees paid is also not correct. The suit itself is devoid of merits.
Hence the suit is liable to be dismissed.

4. Issues :

1. Whether the plaintiff is entitled for the recovery of

the suit claimed amount from the defendants as
prayed for?
2. To what other relief the plaintiff is entitled?

5. On the side of the plaintiff, the plaintiff is examined as

PW1 and Ex.A1 to Ex.A7 are marked and P.W.1 cross examined on the
side of the defendants, Ex.A.8 marked. The 2nd defendant is examined as
DW1 and no documents are marked.

Issues No. 1

6. On the side of the Plaintiff, it is stated that the plaintiff and two
others and executed a General Power of Attorney in favour of Sethuraman
for the sale of a property belongs to them and the said Sethuraman sold that
property to one Sathiskumar on 26.12.2014 and he has not settled the entire
amount as what stated in the power of attorney and he is liable to pay
Rs.4,00,000/- to the plaintiff. And for which the said Sethuraman issued
two cheques in favour of the plaintiff and the same was returned as in
sufficient funds and so the plaintiff filed a case before the FTC court,
Madurai in STC No.541/2017 and the said Sethuraman was died during the
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pendency of the case and so the said case is dismissed as charge abated and
the plaintiff is issued the notice to the defendants who are the legalheirs of
the said Sethuraman and to acquired the estate of the deceased. But the
defendants even after the receipt of the notice, has not chosen to reply and
hence this suit for recovery of money.

7. On the side of the defendants, in the written statement, it is

stated that the defendants are not aware of facts stated by the plaintiff in
plaint para 3 to 8 and the 2nd defendant is residing at Thiruppur and the 4th
defendant is residing at Chennai and they have not received any legal notice
from the plaintiff and the suit is for claim of personal decree against the
defendants for the deceased dues and so the suit is not maintainable before
the law and the suit is barred by limitation and the claim of interest is
exorbitant one and the suit is liable to be dismissed.

8. Admittedly, the defendants are the legal heirs of the deceased

Sethuraman. During the cross of the P.W.1 he admitted that he has executed
a power of Attorney deed in favour of Sethuraman for the sale of the
property and he added the defendants as parties to the suit, since they are
the legal heirs of the deceased Sethuraman and his claim is based on that
the defendants are enjoying the estate of the deceased and further the
admitted that he filed a cheque against the Sethuraman and the same was
dismissed since he died. And he further stated that, Sethuraman issued two
cheques for the liability to pay the amount of Rs.4,00,000/-.

9. During the cross of D.W.1 is admitted that he himself and other

defendants are the legalheirs of the deceased Sethuraman. 1St defendant his
mother, 3rd defendant is his brother and 4th defendant is sister. And further
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stated that the property situated at Plot no.D21, Ellis Nagar, Madurai is his
own property and not belongs to his father and there is no immovable
property stands in the name of his father. And Ex.A.1 and Ex.A.2 are the
cheques issued from the account of his father and signature in the two
cheques is that signature of his father. And his father has conducted real
estate business and the defendants does not know about the sale of the
property made by his father and the defendants has not know about the
cheque case filed against his father and he denied that he has not produced
the documents related to the house where they are resided is stands in the
name of his father and that's why he has not produced the title deed of the
said house and further he is stated that he purchased the said house from
one Nagaraj and he is having a document for the same and he denied that
the defendants are liable for the suit amount.

10. In common, as per the settled position of law, the plaintiff

himself has to prove his case on his own strength of documents. And on
perusal of the documents filed by the plaintiff, Ex.A.1 and Ex.A.2 are the
cheques issued by the deceased Sethuraman and the said Ex.A.1 and
Ex.A.2 documents are admitted by the D.W.1 during his cross examination
and Ex.A.3 is the cheque case and Ex.A.4 is the Judgment of the cheque
case in STC No.541/2017, and in the said judgment, it is stated that “ the
complainant is at liberty to recover the cheque amount from LR's if any law
prescribes so” and Ex.A.5 is the legal notice and Ex.A.6 is the postal
receipt and Ex.A.7 is the Acknowledgment card and Ex.A.8 is the balance
sheet of the plaintiff.
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11. From the said documents it is established that the plaintiff and
the deceased Sethuraman is already having money dispute with respect to
Ex.A.1 and Ex.A.2 cheques. And the plaintiff filed Ex.A.3 cheque case in
STC No.541/2017 against the deceased Sethuraman and during the
pendency of the said cheque case, Sethuraman was died and the said the
case was dismissed as abated in Ex.A.4 and the plaintiff issued legal
notice Ex.A.5 to the defendants and the same was served to them through
Ex.A.6 and Ex.A.7 . But, they did not made any reply.

12. On the side of the defendants, the D.W.1 merely the denied the
contentions stated by the plaintiff in his plaint. But the D.W.1 admitted the
Ex.A.1 and Ex.A.2 cheques are belongs to his father. And the signatures in
the Ex.A.1 and Ex.A.2 are the signatures of his father. And the defendant
has not stated any suggestions with respect to the cheques which are in the
custody of the plaintiff. No ordinary and prudent man issued signed
cheques in favour of another without any liability.

13. And further the D.W.1 merely denied that the house of them is
not owned by his father but purchased by him. But there is no document is
placed before this court to prove that the said house was purchased by the
D.W.1. And the plaintiff is entitled to recover the cheque amount from the
estate of the deceased and directly there is a suggestions put by the plaintiff
during the cross examination the D.W.1 with respect to the ownership of
the said house, there is no document is furnished by the defendant to prove
that the said house was purchased by the 2 nd defendant. And hence, adverse
inference is drawn.
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14. Admittedly, the plaintiff already filed a cheque case against

the deceased Sethuraman with respect to his liability and the same was
dismissed as abated. And the D.W.1 deposed that he does not know about
the cheque case. Admittedly the defendants are the legal heirs of the
deceased Sethuraman they are liable for the dues and debts of the deceased
Sethuraman and the same is recovered from the estate of the deceased.

15. And from the documents of the plaintiff it is presumed that the
defendants are received the legal notice issued by the plaintiff and they
denied it for the purpose of the case. And the defendant have to explain his
defence at least prima facie and the mere denial is not considerable one.
And as per the admission made by the D.W.1 that the cheques Ex.A.1 and
Ex.A.2 are the cheques of the deceased Sethuraman and there is no
considerable explanation is offered by the defendants how the said cheques
has been get in to the custody of the plaintiff.

16. From the Exhibits A1 and A2, and as per the admissions made
by the defendant in this case, the prima facie case is proved by the plaintiff
and the legal presumption under Section 118 of the Negotiable Instruments
Act is in favour of the plaintiff. And the 2 nd defendant himself admitted
that, the signature in the Ex.A1 and Ex.A.2 are the signatures of his father .
And the cheques are issued from the bank account of his father. And even
there is no suggestion is raised by the defendants that his father has not
issued the Ex.A.1 and Ex.A.2 cheques in favour of the plaintiff for any
liability.
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17. And so, it is the burden on the shoulder of the defendant

to prove his rebuttal evidence, what he stated in their written statement.
And further an ordinary prudent man shall not handed over a signed filled
cheques into the custody of another and even the deceased Sethuraman is
the business man who is doing real estate business and he very well known
about the consequences of handed over a filled cheque to another and it is
the burden on the defendant that, why the said cheques are get into the
custody of plaintiff. Even on receipt of the legal notice issued by the
plaintiff, the defendant has to make reply that they are not having any
liability towards the said cheques.

18. Once, the execution of the cheque or signature in the cheque is

admitted, the presumption Under Section 118(a) would arise that, it is
supported by consideration. And the said legal presumption is rebuttable
one. And the defendant can be rebutted the same by raising a probable
defence. If the defendant is proved his defence that the consideration was
improper one or doubtful one or illegal one, the onus would shift to the
plaintiff. But in this case there is no probable defence is proved by the
defendant and further, the bare denial of the passing of the consideration
apparently is not to be a defence.

19. And to prove the defence, the defendant has to bring the facts
and circumstances behind the execution of the cheque and to prove the
same on the strength of the evidences and documents. But, on the side of
the defendant except cross examination of the PW1, and the examination of
D.W.1 there is no other witness is examined on the side of the defendant
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and the defence case is not properly explained and established before this
court. And hence, it is decided that the suit cheques is supported by
consideration and the plaintiff is entitled to get the suit amount with
subsequent interest as prayed by him and the issue no.1 is answered
accordingly.

Issue No.2

20. As per the discussions made in the issue No.1, the issue
No.1 is answered infavour of the plaintiff, there is no separate order for
costs and apart from that there is no other reliefs is entitled by the plaintiff
and this issue is answered accordingly.

In the result, the suit is decreed by directing the

defendant to pay the plaintiff a sum of Rs.4,82,134/-along with subsequent
interest at the rate of 9% per annum from date of the suit till the date of
decree and interest at the rate of 6% per annum for the said amount of
Rs.4,00,000/-from the date of decree till the date of payment or realization
in full, along with the costs of suit.

Dictated to the Steno-Typist and typed by her in the

computer and after making necessary corrections and pronounced by me in
the open Court on this, the 14th day of December 2023.
Sd/.M.Akila Devi
I Additional Sub Judge,
Madurai.
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Annexure:-

Plaintiff's side witness :-

P.W.1 Thiru.Balasubramanian

Plaintiff's side Exhibits:-

Ex.A.1 01.02.2017 Cheque given by the Sethuraman to Original

the plaintiff
Ex.A.2 01.02.2017 Cheque given by the Sethuraman to Original
the plaintiff
Ex.A.3 12.05.2017 Complaint copy filed by the Office copy
plaintiff against Sethuraman
Ex.A.4 09.01.2018 Judgment of the FTC I Certified
copy
Ex.A.5 30.11.2018 Legal notice sent by the plaintiff to Office copy
the legal heirs of the Sethuraman
Ex.A.6 30.11.2018 Postal Receipt Original
Ex.A.7 – Acknowledgment card Original
Ex.A.8 31.03.2017 Balance sheet Certified
copy

Defendant's side witness:

D.W.1 Thiru.S.Gnanasekaran

Defendant's side exhibits: Nil

Sd/.M.Akila Devi
I Additional Sub Judge,
Madurai.
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I Additional Sub Court,

Madurai.
Fair/ Draft Judgment
O.S. No. 851/2019
Date: 14.12.2023