Research › Search › Judgment

Madras High Court · body

2014 DIGILAW 506 (MAD)

Ramasamy Udayar v. Pavoonamal

2014-02-26

PUSHPA SATHYANARAYANA

body2014
JUDGMENT The present appeal is preferred by the Defendant in the suit against the judgment and decree dated 04.7.2007 passed by the learned Subordinate Judge, Kallakurichi, in A.S. No. 48 of 2005 reversing the judgment and decree dated 28.7.2004 passed by the I Additional District Munsif, Kallakurichi, in O.S. No. 393 of 2001 filed for recovery of a sum of Rs.25,400/- with future interest based on a promissory note. 2. The case of the plaintiff is that on 04.6.1998, the defendant had borrowed a sum of Rs.20,000/-from the plaintiff at the rate of 12% per annum and executed suit promissory note Ex.A.1. Despite several demands to repay the amount, as the defendant had not settled the amount, the suit has been filed. 3. The defence of the defendant was that the suit promissory note is created for the purpose of the suit and that the signature contained therein was not that of the defendant. As there was an existing enmity between the plaintiff and the defendant on account of a land dispute, in order to accede the defendant, the plaintiff had created the promissory note. The promissory note is not supported by a valid consideration. The defendant also had replied to the suit notice on 24.5.2001 and prayed for dismissal of the suit. 4. Before the trial Court, the plaintiff had marked Exs. A.1 to A.3 besides examining herself as P.W. 1. On the side of the defendant, though no witness was examined, Exs. B.1 and B.2 were marked. 5. The trial Court, on evaluation of the evidence available, dismissed the suit holding that the plaintiff had not proved Ex.A.1 promissory note in the manner known to law since the defendant had disputed the signature therein. However, on appeal by the plaintiff, the Lower Appellate Court after appreciating the facts, compared the signature by itself and found the suit promissory note to be valid and allowed the appeal thereby decreeing the suit. Feeling aggrieved, the defendant has preferred the present Second Appeal. 6. At the time of admission of this Second Appeal, the following substantial question of law was framed for consideration:- "Whether the Lower Appellate Court has erred in law in comparing the signature found in the suit pronote with written statement and vakalat of appellant?" 7. Heard Mr. S. Sounthar, learned counsel appearing for the appellant as well as Mr. 6. At the time of admission of this Second Appeal, the following substantial question of law was framed for consideration:- "Whether the Lower Appellate Court has erred in law in comparing the signature found in the suit pronote with written statement and vakalat of appellant?" 7. Heard Mr. S. Sounthar, learned counsel appearing for the appellant as well as Mr. P. Valliappan, learned counsel appearing for the respondent and perused the records. 8. Learned counsel for the defendant /appellant contended that the Lower Appellate Court was not correct in comparing the signature found in the suit promissory note with the signature found in the written statement, vakalat, etc. which are subsequent to the filing of the suit. It is further contended by the learned counsel for the appellant that the evidence of P.W.2 has not been considered by the Lower Appellate Court as he categorically stated that no consideration was passed for the suit promissory note. The main contention of the learned counsel for the appellant was that when the signature was disputed by the defendant, the plaintiff ought to have proved the same by sending the document to an expert and proved the same in the manner known to law. 9. The only aspect that has to be examined is whether the Lower Appellate Court was right in comparing the signatures by itself without sending the document to an expert. 10. When the execution of a suit promissory note is disputed, the same can be proved (i) by sending the same to the handwriting expert; (ii) the Court can compare the disputed signature with that of the admitted signature available on records; and (iii) the signature could be proved by any other means of oral evidence or other circumstances 11. In this case, no doubt, the plaintiff despite the denial by the defendant, had not cared to send the document to an expert and on which reason the trial Court dismissed the suit. However, the Lower Appellate Court had compared the signature by itself with that of the signatures available on record though those signatures are subsequent to the execution of the suit promissory note. No doubt, the Court is empowered to compare the disputed signature with admitted signature and come to an independent conclusion where the defendant denies the signature with an ulterior motive to defeat the rights of the plaintiff. No doubt, the Court is empowered to compare the disputed signature with admitted signature and come to an independent conclusion where the defendant denies the signature with an ulterior motive to defeat the rights of the plaintiff. There is a catena of cases to prove the powers of the Court to compare the signatures on its own without reference to an expert. 12. Learned counsel for the respondent / plaintiff had pressed into service the following cases:- (i) RajinderBajaj v. Indian Tanning Industries and others (AIR 2008 Delhi 62) (ii) D. Pandi v. Dhanalakshmi Bank Ltd. (AIR 2001 Madras 243) (iii) Sunil Chowdhury v. Arup Kumar Ghosh (AIR 2006 Calcutta 109) (iv) Kalaimaniand another v. Chinnapaiyan alias Perumal Gounder ( 2004 (5) CTC 617 ) 13. When it is competent for a Court to compare the signatures on its own, the question to be decided is whether the comparison of the disputed signature with that of the signature found in the subsequent documents or contemporaneous documents, viz., written statement or vakalat in the same proceedings, is correct. In this regard, the Division Bench of this Court in the case of Kalaimani(cited supra) has held as follows:- "16. .... Section 73 of the Indian Evidence Act enables the Court using its own eyes to compare the disputed signatures with the admitted signatures. It happens not infrequently that in spite of evidence rendered, the Court cannot help comparing handwriting or signature with their own eyes for the proper assessment of the value of the total evidence. 17. In the light of defence plea of denial of execution raised by the Defendants, learned Trial Judge was right in comparing the signatures of the Defendants in Ex.A.1 with that of the signatures of First Defendant in the deposition and the signature of the Second Defendant in the Vakalat.... 18. ....It is further contended that the signatures of the Defendants in the deposition, Vakalat and the Written Statement cannot be recorded as the reliable standard for comparison. Further contention is that such comparison ought to have been made with any contemporaneous admitted signatures of the Defendants. We are of the view that this contention does not merit acceptance. Signature of the First Defendant in the deposition though affixed in the Court was signed unconstrainedly in a natural manner. Further contention is that such comparison ought to have been made with any contemporaneous admitted signatures of the Defendants. We are of the view that this contention does not merit acceptance. Signature of the First Defendant in the deposition though affixed in the Court was signed unconstrainedly in a natural manner. The signatures of the First Defendant in the deposition are voluntary and free handwriting without any instinct for change of characteristics. Likewise, Vakalat contains natural and spontaneous signatures which afford reliable standard to the Court for comparison. In our view, there is no impediment for comparing the signatures in Ex.A.1 with that of the signature in the Vakalat, Written Statement and Deposition made in the Post Litam stage." 14. Per contra, learned counsel for the appellant / defendant cited a subsequent decision of a Division Bench of this Court in Central Bank of India v. Antony Hardware Mart reported in 2006 (3) CTC 39 wherein it has been held as follows:- "9. At the outset, we want to point out that the Trial Court has committed an error in comparing the signatures in Ex.A-2 and Ex.A-5 with the admitted signature of the defendant in the Vakalath and written statement. In the judgment reported in 1999 (3) C.T.C. 156 (Somasundaram Vs. Palani) this Court has held as follows: “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 comparision will have to be made. In this case, a comparision 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. If that be so, it has to be held that the comparision was not made in accordance with law, even though the Court is empowered to make a comparison”. It is settled law that the disputed signature can be compared with admitted signature, which were contemporaneous and not with the admitted signatures obtained subsequent to the date of the disputed signature. By lapse of time, there may be some difference in the signature of a person. It is settled law that the disputed signature can be compared with admitted signature, which were contemporaneous and not with the admitted signatures obtained subsequent to the date of the disputed signature. By lapse of time, there may be some difference in the signature of a person. Only based on that principle, the above said judgment has been rendered by the learned single Judge of this Court. Therefore, the Trial Court erred in comparing the signatures in Ex.A-2 and Ex.A-5 with the signatures found in the Vakalath and written statement of the defendant. 10. The Trial Court has pointed out that the Manager of the Bank, who wrote Ex.A-2 has not been examined and that itself may not be a ground to disbelieve the case of the plaintiff, if there are other evidence to prove the case of the plaintiff. The Trial Court has observed that when the defendant had denied his signature in Ex.A-2, it is the defendant’s duty to summon his admitted signature from the Indian Bank where he is holding an account and prove that the signature in Ex.A-2 is not his signature. This observation of the Trial Court is wrong. Since, it is the duty of the plaintiff to establish his case, the Trial Court has erred in casting the burden on the defendant...." 15. At this juncture, it would be relevant to quote the decision of the Hon'ble Apex Court in Saurashtra Cement and Chemical Industries v. Union of India reported in AIR 2001 SC 8 wherein paragraph 32 reads as follows:- "... is a settled proposition of law for more than a decade and it is on this score that the doctrine of stare decisis has its due application in the contextual facts and in this context the decision of this Court in Mishri Lal's case (Mishri Lal (d) by L.Rs. v. Dhirendra Nath (d) by L.Rs., (1994) 4 SCC 11 : (1999 AIR SCW 2350 : AIR 1999 SC 2286 ) seems to be rather apposite. This Court observed: 11. v. Dhirendra Nath (d) by L.Rs., (1994) 4 SCC 11 : (1999 AIR SCW 2350 : AIR 1999 SC 2286 ) seems to be rather apposite. This Court observed: 11. “It is further to be noted that Meharban Singh's case ( AIR 1971 SC 77 ) came to be decided as early as 1970 and has been followed for the last three decades in the State of Madhya Pradesh and innumerable number of matters have been dealt with on the basis thereof and in the event, a different view is expressed today, so far as this specific legislation is concerned, it would unsettle the situation in the State of Madhya Pradesh and it is on this score also that reliance on the doctrine of ‘stare decisis’ may be apposite. While it is true that the doctrine has no statutory sanction and the same is based on a rule of convenience and expediency and as also on ‘public policy’ but in our view, the doctrine should and ought always to be strictly adhered to by the courts of law to subserve the ends of justice. 12. This Court in Muktul v. Manbhari, 1959 SCR 1099 : ( AIR 1958 SC 918 ), explained the scope of the doctrine of stare decisis with reference to Halsbury’s Laws of England and Corpus Juris Secundum in the following:- ‘The principles of 'Stare Decisis' is thus stated in Halsbury’s Laws of England, 2nd Edn.: “Apart from any question as to the courts being of coordinate jurisdiction, a decision which has been followed for a long period of time, and has been acted upon by persons in the formation of contracts or in the disposition of their property, or in the general conduct of affairs, or in legal procedure or in other ways, will generally be followed by courts of higher authority than the court establishing the rule, even though the court before whom the matter arises afterwards might not have given the same decision had the question come before it originally. But the Supreme Appellate Court will not shrink from overruling a decision, or series of decisions, which establish a doctrine plainly outside the statute and outside the common law, when no title and no contract will be shaken, no persons can complain, and no general course of dealing be altered by the remedy of a mistake.” The same doctrine is thus explained in Corpus Juris Secundum:— “Under the stare decisis rule, a principle of law which has become settled by a series of decisions generally is binding on the courts and should be followed in similar cases. This rule is based on expediency and public policy, and, although generally it should be strictly adhered to by the courts, it is not universally applicable.”’ 13. Be it noted however that Corpus Juris Secundum adds a rider that ‘previous decisions should not be followed to the extent that grievous wrong may result; and, accordingly, the courts ordinarily will not adhere to a rule or principle established by previous decisions which they are convinced is erroneous. The rule of stare decisis is not so imperative or inflexible as to preclude a departure therefrom in any case, but its application must be determined in each case by the discretion of the court, and previous decisions should not be followed to the extent that error may be perpetuated and grievous wrong may result’. 14. The statement though deserves serious consideration in the event of a definite finding as to the perpetration of a grave wrong but that by itself does not denude the time-tested doctrine of stare decisis of its efficacy.” 16. In view of the above proposition, I am inclined to follow the decision of the Division Bench of this Court rendered in Central Bank of India v. Antony Hardware Mart (cited supra) subsequent to the decision cited by the learned counsel for the respondent as per which it is the duty of the plaintiff to establish his case when the defendant denied the execution of the promissory note. The plaintiff having failed to discharge the burden cast upon him, cannot take advantage of the fact that the Court had compared the signatures and found the signature of the defendant to be the same. The plaintiff having failed to discharge the burden cast upon him, cannot take advantage of the fact that the Court had compared the signatures and found the signature of the defendant to be the same. As stated earlier, the plaintiff either should have taken out an application to send the document to an expert and proved the execution or should have proved the execution of the document in any other means, viz., oral evidence, etc. Having failed to discharge the burden cast upon the plaintiff, he cannot be allowed to succeed. The substantial question of law is answered accordingly in favour of the appellant. In view of the above, the Second Appeal is allowed and the judgment and decree dated 04.7.2007 passed by the Lower Appellate Court in A.S. No. 48 of 2005 decreeing the Suit in O.S. No. 393 of 2001 on the file of the I Additional District Munsif, Kallakurichi, is set aside. Consequently, connected Miscellaneous Petition is closed. However, there shall be no order as to costs.