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2012 DIGILAW 4415 (MAD)

K. Thangavel Chettiar v. Nachimuthu Gounder

2012-10-19

P.R.SHIVAKUMAR

body2012
Judgment :- The plaintiff in the original suit is the appellant in the second appeal. Alleging that the respondent/defendant borrowed a sum of Rs.20,000/-on 01.09.2000 from the appellant/plaintiff and executed Ex.A1 promissory note agreeing to repay the said amount with interest at the rate of 12% p.a; that on 09.09.2000 again the respondent/defendant borrowed another sum of Rs.20,000/-from the appellant/plaintiff and executed Ex.A2-Promissory note promising to repay the said amount with interest at the rate of 12% p.a and that in spite of repeated demands made by the appellant/plaintiff, no amount was paid by the respondent/defendant either towards principal or towards interest, the appellant/plaintiff chose to file O.S.No.646 of 2003 on the file of the Sub-court, Erode. It was also the averment made by the plaintiff that both the suit promissory notices were written by the respondent/defendant in his own handwriting. Thereafter, the said suit was transferred to the trial Court, namely the Court of the District Munsif, Erode on change of the pecuniary jurisdiction and renumbered as O.S.No.1268 of 2004. 2. The respondent/defendant filed a written statement denying the alleged borrowal on 01.09.2000 and 09.09.2000. The execution of Exs.A1 and A2 promissory notes on 01.09.2000 and 09.09.2000 was also disputed. On the other hand, the respondent/defendant contended in his written statement that he was an ill-literate person and he did not write the suit promissory notes as alleged in the plaint. He had also taken a stand that both the promissory notes were fabricated documents and prayed for the dismissal of the suit. 3. In the light of the above pleadings, the learned trial Judge framed three issues which are as follows: 1. Whether the suit promissory notes dated 01.09.2000 and 09.09.2000 are true and valid and whether the same were executed by the plaintiff to the defendant for proper consideration? 2. Whether the plaintiff is entitled to recover the suit amount? 3. To what other relief? 4. In the trial, excepting the party witnesses who figured as PW1 and DW1 respectively, no other witnesses was examined. The suit promissory notes were marked as Exs.A1 and A2. Apart from those documents, no other document was produced on the side of the appellant/plaintiff. The defendant produced only one document, which was marked as Ex.B1. 5. 4. In the trial, excepting the party witnesses who figured as PW1 and DW1 respectively, no other witnesses was examined. The suit promissory notes were marked as Exs.A1 and A2. Apart from those documents, no other document was produced on the side of the appellant/plaintiff. The defendant produced only one document, which was marked as Ex.B1. 5. At the conclusion of trial, the learned trial Judge pronounced a judgment in which after narrating the respective pleadings and the fact that the respondent had denied not only the execution of the promissory notes but also the signature found in Exs.A1 and A2 promissory notes, proceeded further and observed that though the respondent/defendant pleaded that he was an illiterate and he could not write and read, there was an admission on his part that he could sign his name and that there was similarity in the signatures found in the suit promissory notes and the admitted signatures found in the documents like Vakalat, written statement and the proof affidavit filed by the respondent/defendant in the suit before the trial Court. Followed by such observation, the learned trial Judge expressed his opinion that the respondent/defendant ought to have taken steps to get his admitted signatures compared with the disputed signatures and the disputed writings by an expert, to find out whether they were of the very same person or not and that since the respondent/defendant had failed to do so, the plaintiff's case should be taken as proof. The learned trial Judge also commented upon the defence plea taken during the course of trial that the plaintiff owed a sum of Rs.35,000/-under a promissory note dated 25.12.2002 and when repayment of the said amount was demanded by the respondent/defendant, the suit promissory notes were fabricated and the suit was filed by the appellant/plaintiff. While referring to the said stand taken by the respondent/defendant, the learned trial Judge chose to observe that since the same was not pleaded in the written statement, the evidence adduced regarding the alleged promissory note executed by the plaintiff in favour of the defendant on 25.12.2002 could not be looked into. While referring to the said stand taken by the respondent/defendant, the learned trial Judge chose to observe that since the same was not pleaded in the written statement, the evidence adduced regarding the alleged promissory note executed by the plaintiff in favour of the defendant on 25.12.2002 could not be looked into. However, after making such an observation, the learned trial Judge chose to deal with the question whether such a transaction could have been a genuine one or not by referring to various aspects regarding the promissory note, signature found in which was admitted by the plaintiff and marked as Ex.B1. The learned trial Judge also chose to comment upon the fact that the defendant had not chosen to file any suit on the basis of the said promissory note. As a cumulative effect of the above said comments, the learned trial Judge arrived at the conclusion that the suit promissory notes and the loan transaction under the suit promissory notes stood proved and accordingly, the learned trial Judge decreed the suit as prayed for directing the defendant to pay a sum of Rs.40,000/-being the principle amount covered by the promissory notes with 12% interest from the date of plaint till the date of decree and 6% interest from the date of decree till the date of realization. 6. The said decree passed by the trial Court on 18.08.2005 was challenged by the respondent/defendant before the lower appellate Court, namely the Court of the First Additional Sub-ordinate Judge, Erode in A.S.No.37 of 2006. The learned lower appellate Judge, after hearing both sides and after re-appreciating the evidence adduced on both sides, came to the conclusion that the appellant herein/plaintiff failed to establish his case that the suit promissory notes were executed by the respondent herein/defendant and that the amounts mentioned in the suit promissory notes were lent by the appellant herein/plaintiff to the respondent herein. The learned lower appellate Judge also held that the burden of proving the lending as well as execution of the suit promissory notes was on the appellant herein/plaintiff which he failed to discharge by adducing reliable and sufficient evidence. The learned lower appellate Judge also held that the burden of proving the lending as well as execution of the suit promissory notes was on the appellant herein/plaintiff which he failed to discharge by adducing reliable and sufficient evidence. It was the further observation made by the learned lower appellate Judge that when the borrowal, execution of the pronotes and the signatures found in the promissory notes were denied and disputed by the defendant, the burden cast on the plaintiff to prove the transaction and execution of the suit promissory notes was heavy and in such circumstances, the appellant herein/plaintiff ought to have taken steps to examine other persons who witnessed the transaction and the execution of the promissory notes or at least the appellant/plaintiff ought to have taken steps to have the admitted signatures and specimen handwritings of the respondent/defendant compared with the disputed signatures and writing with the help of a handwriting expert to aid the Court in arriving at a conclusion whether the signatures found in the suit promissory notes and the handwriting are that of the respondent/defendant or not. Ultimately, holding that the appellant/plaintiff had failed to discharge the burden of proof and that on the other hand, the trial Court made an erroneous approach by casting the burden on the defendant and deciding the issue against the defendant, allowed the appeal with costs, set aside the decree passed by the trial Court and dismissed the suit. Aggrieved by the said judgment and decree of the lower appellate Court, the present second appeal has been filed by the appellant/plaintiff. 7. An appeal against the appellate decree of a Court subordinate to the High court will lie to the High Court under Section 100 C.P.C only on a substantial question of law. Though the second appeal was filed in the year 2008, the same was not admitted. On the other hand, this Court directed notice before admission to be served on the respondent, perhaps with the hope that the appeal could be disposed of at the stage of admission itself. 8. Now after service of said notice, the respondent is before this Court represented by a learned counsel. On the other hand, this Court directed notice before admission to be served on the respondent, perhaps with the hope that the appeal could be disposed of at the stage of admission itself. 8. Now after service of said notice, the respondent is before this Court represented by a learned counsel. This Court, upon hearing the submissions made by Mr.T.Murugamanickam, learned counsel for the appellant and by Mr.V.P.Sengottuvel, learned counsel for the respondent and after going the documents produced in the form of typed-set of papers including the judgments and decrees of the courts below, pronounces the following judgment: i) Of course it is a second appeal filed against a reversing judgment. But simply because the second appeal is against a reversing judgment of the lower appellate Court, the second appeal will not succeed, unless it is proved that the second appeal involves a substantial question of law and such a substantial question of law has been wrongly decided. In this case the only point that is raised on behalf of the appellant/plaintiff is that the finding of the trial Court holding the signatures of the respondent/defendant found in the admitted documents namely Vakalat, written statement and proof affidavit to be similar to the signatures found in the disputed documents, namely Exs.A1 and A2 promissory notes, was erroneously reversed by the lower appellate Court without the help of an expert opinion and that the finding of the trial Court that the defendant failed to disprove his signature and the handwriting found in Exs.A1 and A2 promissory notes ought not to have been reversed by the lower appellate Court holding that the burden was on the plaintiff and not on the defendant. ii) The case of the appellant/plaintiff is that he lent a sum of Rs.20,000/- under Ex.A1 promissory note on 01.09.2000 and another sum of Rs.20,000/- under Ex.A2 promissory note on 09.09.2000. The time gap between the two transactions is only eight days. It is also the case of the appellant/plaintiff that both the suit promissory notes, namely Exs.A1 and A2 were written by the respondent / defendant in his own handwriting. The respondent/defendant filed a written statement disputing the alleged borrowal and the alleged execution of the suit promissory notes. He has taken a categorical stand that the suit promissory notes were fabricated documents. The respondent/defendant filed a written statement disputing the alleged borrowal and the alleged execution of the suit promissory notes. He has taken a categorical stand that the suit promissory notes were fabricated documents. In addition, the respondent/defendant also took a plea that he was an illiterate and hence, he did not write the alleged promissory notes. A consideration of the defence plea made in the written statement will show that besides a clear plea that no amount was borrowed and the promissory notes were not written in his handwriting, there is also absence of any admission of the signatures found in the suit promissory notes marked as Exs.A1 and A2 to be that of the defendant. The same is again repeated and reflected in the evidence. When such is the case, the appellant/plaintiff ought to have led reliable and sufficient evidence to prove the alleged lending and execution of the promissory notes. Excepting the interested testimony of PW1, the plaintiff himself, there is no other evidence for proving the alleged lending by the plaintiff and execution of the pronotes by the defendant. When the signatures found in the promissory notes are disputed, the plaintiff ought to have led sufficient evidence either by examining persons who are familiar with the signature of the defendant or persons who saw the defendant signing the document to prove the same. Unfortunately, the appellant/plaintiff failed to do so. iii) The case of the plaintiff that the suit promissory notes were written by the defendant himself was also denied and disputed. Such a denial was not a mere denial. The defendant had also taken a stand that he was an illiterate and he could not have written the promissory notes. When such is the case, the plaintiff ought to have examined any person who saw the defendant writing the promissory notes or at least to show that such persons knew the capacity of the defendant to write such documents. In the absence of any such evidence, the plaintiff could have very well produced any other document in the handwriting of the defendant so that the same could be compared with the disputed documents. In the absence of any such evidence, the plaintiff could have very well produced any other document in the handwriting of the defendant so that the same could be compared with the disputed documents. If no other document containing the handwriting of the defendant was available, then the plaintiff could have asked the trial Court to get the specimen handwriting and specimen signature of the defendant and made arrangements for referring those specimen signatures and specimen handwritings to a handwriting expert for being compared with the writings found in Exs.A1 and A2 and the signatures found therein. The plaintiff, having failed to do so, had made an attempt to contend that the burden was not on the plaintiff but, on the other hand, it was cast on the defendant to disprove the document. Such an attempt proved to be successful before the trial Court, which according to this Court, was the result of erroneous approach made by the learned trial Judge, which was rightly corrected by the lower appellate Court. The lower appellate Court, on reappreciation of evidence and applying the principles of law regarding burden of proof has rightly held that the burden of proof was heavily cast on the plaintiff and the plaintiff failed to discharge the burden by reliable evidence sufficient at least to shift the burden and cast it on the defendant to prove the opposite. 9. This Court does not find any defect or infirmity in the approach made by the learned lower appellate Judge. No question of law much less a substantial question of law is proved to have been decided erroneously or wrongly by the lower appellate Court. The wrong approach made by the trial Court was rightly interfered with and corrected by the lower appellate Court. The well considered judgment and decree of the lower appellate Court do not deserve any interference. Resultantly the second appeal fails. In the result, the second appeal is dismissed. However, there shall be no order as to costs in the second appeal.