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2014 DIGILAW 4062 (MAD)

P. Gnanambal v. S. Indiradevi

2014-10-30

R.MAHADEVAN

body2014
Judgment 1. Defendant, who failed in both the courts below, is the appellant in this second appeal. 2. The plaintiff/respondent herein filed the abovesaid suit for the relief of recovery of a sum of Rs.65,230/= with interest at 24% per annum on the principal of Rs.40,000/= from the date of plaint till the date of realisation. The case of the plaintiff is as follows:- On 16.8.1995, the defendant availed a loan of Rs.40,000/=for her family expenses and executed the suit promissory note agreeing to repay with interest at 24% per annum. Thereafter, the defendant neither paid interest nor returned the loan amount. When she was served with legal notice on 23.4.1998, the defendant sent a reply on 29.4.1998 with untenable allegations and refused to repay the loan amount. Hence, the suit had been filed. 3. The suit was resisted by the defendant/appellant herein contending that the plaintiff is a stranger to her and the defendant had not borrowed any amount from the plaintiff nor executed the suit promissory note. In the reply sent on 29.4.1998, the defendant sought for a copy of the suit promissory note, but, no such copy was sent. Hence, the suit promissory note is a fabricated one. There was no necessity for the defendant to avail any loan from the plaintiff. If the suit promissory note is sent for opinion from a handwriting expert, the fabrication of such a document would be proved. 4. The Trial Judge framed three issues which are as follows:- i) Whether the suit promissory note is a genuine one and whether consideration was passed on under such promissory note? ii) Whether the plaintiff is entitled to the relief sought for? iii) To what other relief? 5. The plaintiff examined herself as PW1 and one Sarala was examined as PW2 and 3 documents were marked as Exs.A1 to A3 on the side of the plaintiff. The defendant examined herself as DW1, but, no document was marked on the side of the defendant. On analysis of the oral and documentary evidence, the Trial Court decreed the suit as prayed for. On appeal, the appellate court concurred with the finding of the Trial Court. As against the judgment and decree of the courts below, the present appeal has been filed. 6. On analysis of the oral and documentary evidence, the Trial Court decreed the suit as prayed for. On appeal, the appellate court concurred with the finding of the Trial Court. As against the judgment and decree of the courts below, the present appeal has been filed. 6. The second appeal has been admitted identifying the following questions to be the substantial question of law involved in the second appeal: "Whether the courts below have committed an error of law in wrongly throwing the burden of proving the due execution of the suit promissory note on the defendant when the defendant has specifically denied the execution of the suit promissory note?" 7. The arguments advanced by Mr.T.R.Rajaraman, learned counsel for the appellant and by Mr.D.Nelliappan on behalf of the respondent are heard in detail. The materials available on record are also perused. 8. Learned counsel appearing for the appellant/defendant would submit that when the defendant had specifically denied borrowal of amount and execution of the suit promissory note, the Trial Court ought not to have ventured to compare the signature found on the suit promissory note with the signatures found in the court documents instead of sending the same to a handwriting expert and when the plaintiff had not clearly proved the execution of the suit promissory note, the courts below had committed an error in shifting the burden of disproving the execution on the defendant. 9. Learned counsel for the respondent/plaintiff would submit that the plaintiff has discharged her burden of proof of execution of the suit promissory note by examining PW2, who is a colleage of the defendant and when the defendant wants to deny the signature found on such document or the execution of the same, it is the bounden duty of the defendant to initiate action for the same. 10. The suit is one for the relief of recovery of money. The case of the plaintiff is that the defendant had borrowed a sum of Rs.40,000/= from her by executing the suit promissory note Ex.A1 agreeing to repay the same with interest at 24% per annum, but, the defendant did not pay interest nor repaid the principal amount and also sent a reply Ex.A3 with false and untenable allegations for the notice, Ex.A2 sent to her demanding the repayment of the amount. The case of the defendant is a total denial of borrowal. The case of the defendant is a total denial of borrowal. Her specific case is that the plaintiff is a stranger to the defendant and the promissory note is a fabricated one. To prove the loan given by the plaintiff, the plaintiff has produced the promissory note Ex.A1 and examined her sister as PW2, who had signed in the promissory note as a witness for the disbursal of loan. PW2 is a colleague of the defendant. Though the defendant contends in her written statement and in her evidence that the plaintiff is a stranger, she admits when she was cross-examined that she knows the plaintiff as the sister of PW2 and she knows PW2 for about 15 years. The contradictory case of the defendant proves the attitude of the defendant. The defendant seems to be a staff in Judiciary. When it is contended by the defendant that the suit promissory note must be a fabricated one, she has not taken care either to send the same for opinion of handwriting expert to prove her genuineness or it is not her case that there was some enmity between herself and the plaintiff or atleast PW2 who might have had the opportunity of fabricating the signature of the defendant. Hence, the defence putforth by her must fall to the ground. 11. Learned counsel for the appellant/defendnt submits that the burden of proof lies only upon the plaintiff and it does not shift on the defendant. He has referred to a decision of the Honourable Supreme Court in A.RAGHAVAMMA AND ANOTHER v. A.CHENCHAMMA AND ANOTHER ( AIR 1964 SC 136 (1)) in support of his contention. 12. In the above case, the Honourable Supreme Court has pointed out the distinction between the burden of proof and onus of proof. That is a case of proving partition. The present case is a money suit where the plaintiff has discharged her burden of proof by producing the suit document and examining the witness to the document and hence, the onus of proof shifts on the defendant to disprove the execution of the same and its consideration and prove that it is a fabricated one. She has not taken care to do so except giving a vague undertaking that she would co-operate for such a process. Hence, it is clear that the defendant has not discharged the onus of proof. 13. She has not taken care to do so except giving a vague undertaking that she would co-operate for such a process. Hence, it is clear that the defendant has not discharged the onus of proof. 13. The learned counsel for the appellant/defendant also referred to a decision of this court in T.RAMAN v. A.DEVARAJ ( (2013) 5 MLJ 667 ) to contend that the courts below have erred in comparing by themselves the signature alleged to be the signature of the defendant with her admitted signature without sending the same to a handwriting expert. 14. The above referred second appeal was preferred by defendants 1 and 3 in the suit filed therein for the relief of specific performance. The suit therein was resisted by the appellants therein by placing strong rival contentions against the plaintiff by propounding a clear theory of concoction and fabrication of the suit agreement to wreak vengeance on him because of his separation with his wife. Further, it is seen that the property worth more Rs.5,00,000/= was alleged to have been agreed to be sold for a sum of Rs.50,000/= which also stood as a suspicious circumstance. But, in the case on hand, the theory of rendering a help by the plaintiff to a college of her sister by giving a loan for Rs.40,000/= is clearly proved by the plaintiff by procuring the suit document as well as by examining the witness to the document. Moreover, when the defendant has not taken care to disprove the signature found on the promissory note, the court has taken pains to compare the signature found on the document which cannot be found fault with. 15. The other case viz., SAHARBAN BEEVI v. S.MUMTAJ ( 2013(2) CTC 394 ) also arises from a suit for specific performance where the initial burden of proving the signature on the document was not proved by the plaintiff therein and the dismissal of the petition filed by the defendant therein for comparing the signature was set aside and the petition filed by the defendant was allowed. In the case on hand, the defendant, while resisting the money suit, even after making contradictory contentions and showing distinguished attitude, has not taken any step to send the document for comparing the signature. 16. In the case on hand, the defendant, while resisting the money suit, even after making contradictory contentions and showing distinguished attitude, has not taken any step to send the document for comparing the signature. 16. The learned counsel for the appellant further relied upon a decision in ROBINSON v. RAMACHANDRAN (2014-3-LW 644) to contend that the court cannot compare the signature when the plaintiff has not discharged his burden of proof of execution of the suit promissory note. 17. That is a case where the defendant had taken out an application for sending the document for comparison of the signature but, not prosecuted the same in the middle. Further, the defendant therein is alleged to have admitted, by mistake, the execution of the promissory note and later, clarified his stand as to the non-execution of the suit promissory note, but, the courts below have drawn an adverse inference against the defendant. 18. In the present case, no such mistaken admission, but, initially, the defendant totally denies the acquaintance with the plaintiff, but, later, in cross-examination admits the acquaintance. Hence, the distinguished answers reveal her attitude to the court. This court is of the view that by producing the promissory note and the witness to the document, who is none other than a colleage of the defendant known well to the defendant for atleast 15 years and that too when they do not have any enmity giving room for any fabrication of the document, the plaintiff has discharged her initial burden of proof and the onus of proof has been shifted on the defendant to disprove the signature found on the document. 19. When such being the position, the defendant has not taken care to disprove the signature found on the suit promissory note or execution of the same. Hence, the court below was constrained to compare the disputed signature found on the suit promissory note with the admitted signatures found on the court documents. 20. 19. When such being the position, the defendant has not taken care to disprove the signature found on the suit promissory note or execution of the same. Hence, the court below was constrained to compare the disputed signature found on the suit promissory note with the admitted signatures found on the court documents. 20. Section 73 of the Evidence Act reads thus:- "In order to ascertain whether a signature, writing, or seal is that of the person by whom it purports to have been written or made, any signature, writing, or seal admitted or proved to the satisfaction of the court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing, or seal has not been produced or proved for any other purpose. The court may direct any person present in court to write any words or figures for the purpose of enabling the court to compare the words or figures so written with any words or figures alleged to have been written by such person." 21. In MURARILAL v. STATE OF M.P. ( AIR 1980 SC 531 ), it has been held as follows:- "12. The argument that the court should not venture to compare writings itself, as it would thereby assume to itself the role of an expert is entirely without force. Section 73 of the Evidence Act expressly enables the Court to compare disputed writings with admitted or proved writings to ascertain whether a writing is that of the person by whom it purports to have been written. If it is hazardous to do so, as sometimes said, we are afraid it is one of the hazards to which judge and litigant must expose themselves whenever it becomes necessary. There may be cases where both sides call experts and two voices of science are heard. There may be cases where neither side calls an expert, being ill able to afford him. In all such cases, it becomes the plain duty of the Court to compare the writings and come to its own conclusion. The duty cannot be avoided by recourse to the statement that the court is no expert. Where there are expert opinions they will aid the Court. Where there is none, the Court will have to seek guidance from some authoritative textbook and the Court's own experience and knowledge. The duty cannot be avoided by recourse to the statement that the court is no expert. Where there are expert opinions they will aid the Court. Where there is none, the Court will have to seek guidance from some authoritative textbook and the Court's own experience and knowledge. But discharge it must, its plain duty, with or without expert, with or without other evidence. We may mention that Shashi Kumar v. Subodh Kumar and Fakhruddin v. State of Madhya Pradesh were cases where the Court itself compared the writings." 22. In view of the above, this court is of the view that the court below has rightly compared the signature found on the suit promissory note to arrive at a conclusion with regard to the genuineness of the signature found therein. The courts below have also rightly held that the initial burden of proving was discharged by the plaintiff and since the defendant has not taken care to do so, the courts below have rightly compared the signature found on the suit promissory note and having found that the signature found on the suit promissory note is not distinct from the admitted signatures decreed the suit. 23. The question of law is answered against the defendant. The judgment and decree of the courts below do not warrant any interference. In the result, the second appeal fails and the same is dismissed. No order as to costs.