Research › Search › Judgment

Madras High Court · body

2000 DIGILAW 287 (MAD)

Jabirunnisa Bi v. Kasi Naicker and another

2000-03-09

A.SUBBULAKSHMY

body2000
Judgment : The unsuccessful plaintiff in the trial court is the appellant herein. 2. The plaintiff has filed the suit O.S.No.202 of 1983 in the court of the Sub Judge, Chengalpattu for recovery of a sum of Rs.35,683.45 including interest due under promissory note executed by the defendants in favour of the plaintiff. The plaintiff alleges that both the defendants received Rs.21,900 on 30.10.1980 and Rs.8,680 on 15. 1982 and executed two promissory notes and they repaid Rs.1,900 and it was endorsed on 10. 1983 and in spite of repeated demands, the defendants did not pay the amount and hence the suit. 3. Thedefendants filed written statement contending as follows: The defendants did not receive any amount from the plaintiff as stated in the plaint. The plaintiff is a muslim lady and a house-wife. The plaintiffs husband, one Mohammed Ghouse is a money lender and has been doing the money lending business for the past 20 years or more by getting the pronotes and mortgage deeds executed in favour of his wife, the plaintiff, for the money advanced by him. Only the plaintiffs husband Mohammed Ghouse was giving receipts or vouchers, for the sums received by him, to the defendants prior to 15. 1976 and the interest due on such advances was calculated at the rate of 30% per annum. He made the defendants to execute a registered simple mortgage deed for Rs.20,000 on 15. 1976 in favour of his wife, the plaintiff. Subsequently on 30.10.1980 he calculated interest on the simple mortgage deed amount of Rs.20,000 at the rate of 30% per annum and after giving credit to Rs.5,000 which the defendants had already paid, he got executed one of the suit promissory note for a sum of Rs.21,900 by the defendants in favour of his wife, the plaintiff. Again on 15. 1982 the said Mohammed Ghouse calculated subsequent interest on the mortgage deed mentioned amount of Rs.20,000 and interest on the said pronote mentioned amount of Rs.21,900 from the date 30.10.1980 and arrived at Rs.11,780 as the total interest due and after deducting an amount of Rs.3,100 paid by the defendants on 15. 1982 itself for which a receipt was also given by the said Mohammed Ghouse, he got another pronote executed for a sum of Rs.8,680 executed by the defendants in favour of the plaintiff for the said interest due, which is the second suit pronote. 1982 itself for which a receipt was also given by the said Mohammed Ghouse, he got another pronote executed for a sum of Rs.8,680 executed by the defendants in favour of the plaintiff for the said interest due, which is the second suit pronote. Even the plaint mentioned payment of Rs.1,900 as by the defendants was made by them only in January 1983 and not on 10. 1988. The defendants had never borrowed any amount on the suit promissory notes and these suit promissory notes were obtained from the defendants only for the interest and compound interest calculated on the said simple mortgage money. The plaintiff also issued a legal notice to the defendants calling upon them to discharge the simple mortgage dated 15. 1976, even without giving credit to the amounts totalling to Rs.10,000 which was paid by the defendants. The defendants are not having any immovable properties of worth exceeding Rs.25,000. Their household income does not exceed Rs.4,800 and they are not assessed to income-tax. 4. Onthe above pleadings the trial court framed three issues and dismissed the suit. .5. The trial court dismissed the suit on the ground that for interest on the mortgage deed, the two suit pronotes Exs.A-1 and A-2 were executed and they are not supported by consideration. The suit has been filed by the plaintiff for recovery of the suit amount on the strength of the two pronotes under Exs.A-1 and A-2 contending that the defendants borrowed a sum of Rs.21,900 and Rs.8,680 and executed Exs.A-1 and A-2. In Ex.A-1, the money was borrowed for agricultural expenses and in Ex.A-2 for family expenses the defendants had borrowed a sum of Rs.8,680 from the plaintiff. In Exs.A-1 and A-2, it is stated that the defendants received cash consideration of Rs.21,900 and Rs.8,680 and executed Exs.A-1 and A-2. The defendants have also paid a sum of Rs.1,900 on 10. 1983 and endorsement has also been made in Ex.A-1 under Ex.A-4. The documents produced on the side of the plaintiff as Exs.A-1 and A-2 prove that the defendants had borrowed the money and executed the pronotes under Exs.A-1 and A-2. The trial court found that these two pronotes Exs.A-1 and A-2 were executed for the excess interest due over the mortgage deed and the suit promissory notes are not supported by consideration. The trial court has relied upon the unstamped receipt Ex.B-2 for Rs.11,780. The trial court found that these two pronotes Exs.A-1 and A-2 were executed for the excess interest due over the mortgage deed and the suit promissory notes are not supported by consideration. The trial court has relied upon the unstamped receipt Ex.B-2 for Rs.11,780. The trial court has also accepted Ex.B-2 receipt and it found that Exs.A-1 and A-2 are not supported by consideration. The finding of the trial court is that the whole case of the defendants rests on the key document Ex.B-2 and it has carefully scrutinised Ex.B-2 with reference to the hand-writing appearing in Ex.A-1 and Ex.A-2 and also the signature of P.W.1 in his deposition and it was convicted that Ex.B-2, Ex.A-1 and Ex.A-2 are written by one person i.e., the daughter-in-law of P.W.1 and the signature in Ex.B-2 is that of P.W.1 and there is no remarkable dissimilarity between these two signatures and in the signature in the deposition, P.W.1 manoeuvered to put an additional letter in between ‘M’ and in order to make it appear that the signature in Ex.B-2 is not that of P.W.1 and the additional letter has been purposely put by P.W.1 in order to cause an impression to the court that the signature in Ex.B-2 is not his signature and the letters contained in both i.e., in the deposition as well as in Ex.B-2 are similar and therefore it was convinced that Ex.B-2 receipt was given by P.W.1 alone on behalf of his wife the plaintiff and nobody else and Ex.B-2 was written by his daughter-in-law and accordingly the trial court has come to the conclusion that the suit pronotes were executed for the excess interest. The trial court has also come to that conclusion relying on another circumstances that the figures mentioned in Ex.A-1 and Ex.A-2 are not a round one and the principal amount mentioned in Ex.A-1 as Rs.21,900 and Ex.A-2 as Rs.8,680 are in fraction and there is no proper explanation and even though P.W.1 has stated that at that time he was having only the said amount with him and therefore he gave it to the defendants, the explanation of P.W.1 is not convicting and the same cannot be accepted and accordingly the trial court has found that the figures mentioned in Exs.A-1 and A-2 could have been arrived at only by calculating the interest amount and not by paying any principal amount under the said promissory notes and accordingly it has found that Exs.A-1 and A-2 are not supported by consideration. P.W.1 denies his signature in Ex.B-2. The trial court has proceeded to compare the signature of P.W.1 in his deposition with Ex.B-2 and it came to the conclusion that only P.W.1 has signed Ex.B-2. The findings of the trial court is that P.W.1 has put an additional letter in order to cause impression, that the signature in Ex.B-2 is not that of this signature. 6. Learned counsel for the appellant/plaintiff has argued that the findings of the trial court as to the receipt is not sustainable and the trial court cannot compare the signature of P.W.1 in Ex.B-2 and such comparison is not fair and based on such comparison the findings given by the trial court is not sustainable. He relies upon the decision of this Court in Somasundaram v. Palani , (1999)3 MLJ. 710 : (2000)1 L.W. 511 wherein this Court has held that: “Even though the court may have the power to compare the signatures, there must be some admitted signature of the defendant, on the basis of which a comparison will have to be made. In this case, a comparison has been made on the basis of signatures, affixed by defendant in the vakalath and written statement, which are documents that have come into existence after the dispute arose, and after the promissory note in question was filed into court along with plaint. A comparison should not have been made on the basis of those signatures. A comparison should not have been made on the basis of those signatures. If that be so, it has to be held that the comparison was not made in accordance with law, even though the court is empowered to make a comparison.” 7. I concur with the view taken by this Court in the decision cited supra. In the decision Fakhruddin v. The State of Madhya Pradesh , A.I.R. 1967 S.C. 1326 the Supreme Court has held that, “The writing may be proved to be in the handwriting of a particular individual by the evidence of a person familiar with the handwriting of that individual or by the testimony of an Expert competent to the comparison of handwritings on a scientific basis. A third method is comparison by the court with the writing made in the presence of the court or admitted or proved to by the writing of the person. Both under Sec.45 and Sec.47 the evidence is an opinion, in the former by a scientific comparison and in the latter on the basis of familiarity resulting from frequent observations and experience. In either case the court must satisfy itself by such means as are open that the opinion may be acted upon. Where an experts opinion is given, the court must see for itself and with the assistance of the expert come to its own conclusion whether it can safely be held that the two writings are by the same person. This is not to say that the court must play the role of an expert but to say that the court may accept the fact proved only when it has satisfied itself on its observation that it is safe to accept the opinion whether of the expert or other witness. …” In O.Bharathan v. K.Sudhakaran O.Bharathan v. K.Sudhakaran O.Bharathan v. K.Sudhakaran , A.I.R. 1996 S.C. 1140 held that the court cannot examine the writings and the signatures of the parties. It is settled law that the court cannot compare the signatures. …” In O.Bharathan v. K.Sudhakaran O.Bharathan v. K.Sudhakaran O.Bharathan v. K.Sudhakaran , A.I.R. 1996 S.C. 1140 held that the court cannot examine the writings and the signatures of the parties. It is settled law that the court cannot compare the signatures. There must be some admitted signature of P.W.1 on the basis of which comparison has to be made, and the deposition came into existence after the dispute and so the signature in the deposition cannot be compared with the disputed signature in Ex.B-2 and so I find that the finding of the learned Subordinate Judge about the comparison of the signature of P.W.1 in Ex.B-2 with that in the deposition is not sustainable. The trial judge has also gone to the extent of saying that the figures mentioned in Exs.A-1 and A-2 are not round ones and thus they could have been arrived at by calculating the interest amount on amount paid on the mortgages. 8. The suit is based on an instrument under the Negotiable Instruments Act, i.e., the two pronotes. Sec.118 of Negotiable Instruments Act, 1881, status that ‘until the contrary is proved, the presumption shall be made of consideration that every negotiable instrument was made or drawn for consideration and that every such instrument, when it has been accepted, endorsed, negotiated or transferred was accepted, endorsed, negotiated or transferred for consideration. 9. Therecital in Exs.A-1 and A-2 is to the effect that the cash consideration has been received by the defendants and only after receipt of cash consideration Exs.A-1 and A-2 were executed by the defendants in favour of the plaintiff. It may be for a round sum or fraction amount. The recital in the instrument under the Negotiable Instruments Act has to be given much weight. The recital in Exs.A-1 and A-2 leaves no doubt to come to the conclusion that the defendants received cash consideration. The recital in Exs.A-1 and A-2 with regard to the fraction of the amount, is not of any significance. For the amount received by the defendants from the plaintiff, the defendants have executed the pronotes Exs.A-1 and A-2. The categorical evidence of P.W.1 is that the amount mentioned in Exs.A-1 and A-2 had been paid by the plaintiff to the defendant. The evidence of P.W.1 and the document Exs.A-1 and A-2 prove that the defendants had received the cash consideration from the plaintiff under Exs.A-1 and A-2. The categorical evidence of P.W.1 is that the amount mentioned in Exs.A-1 and A-2 had been paid by the plaintiff to the defendant. The evidence of P.W.1 and the document Exs.A-1 and A-2 prove that the defendants had received the cash consideration from the plaintiff under Exs.A-1 and A-2. The defendants have also paid a sum of Rs.1,900 in Ex.A-1 on 10. 1983 and made endorsement under Ex.A-4. It is also proved that the defendants received cash consideration and they owe amount to plaintiff and only towards the amount due on pronote under Ex.A-1, the defendants have paid the amount and made endorsement under Ex.A-4 and on these things, this Court finds that the defendants received cash consideration under Exs.A-1 and A-2 and Ex.A-1 and Ex.A-2 are fully supported by consideration. The findings of the learned subordinate judge, is liable to be set-aside. In the result the appeal is allowed. The judgment and decree passed by the trial court are set aside. The suit is decreed with costs as prayed for. However, there is no order for costs in the appeal.