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2019 DIGILAW 962 (MAD)

Ramayee v. Kasthuri

2019-04-04

V.BHARATHIDASAN

body2019
JUDGMENT : V. Bharathidasan, J. 1. The 2nd defendant, who suffered a decree in O.S. No. 159 of 1999 on the file of the learned Principal Subordinate Judge, Puducherry, for specific performance of contract is the appellant. The 1st respondent is the plaintiff and the 2nd respondent is the 1st defendant in the suit. The said suit was filed for a decree against the defendants 1 and 2 for specific performance of contract of agreement of sale dated 30.01.1996 in respect of suit property after receiving the balance sale consideration of Rs. 3,00,000/-; directing the defendants to put the plaintiff into possession of the suit property by delivery of possession and for a consequential injunction restraining the 2nd defendant, her agents, servants, henchmen from causing waste and damage to suit property and from alienating the same until the disposal of the suit; or in the alternative to grant a decree against the defendants directing them to return the advance amount Rs. 12,00,000/- with interest amounting to Rs. 14,66,800/- with subsequent interest @ 12% p.a. from the date of plaint till date of realization. The learned Principal Subordinate Judge, by judgment and decree dated 10.04.2013 decreed the suit with costs. Aggrieved over the same, the 2nd defendant filed an appeal suit in A.S. No. 9 of 2015 and the learned Principal District Judge, by judgment and decree dated 29.03.2017, has dismissed the appeal suit. Feeling aggrieved by the same, the 2nd defendant is before this court with the present second appeal. 2. For the sake of convenience, the parties in this proceedings will hereinafter be referred to as per their array before the trial court. 3. The case of the plaintiff is that the 2nd defendant is the owner of the suit property and he had executed a registered Power of Attorney Deed in favour of the 1st defendant on 22.01.1995 whereby he had given power to the 1st defendant to alienate his property which is more fully described in the plaint. Thereafter, the 1st defendant had entered into an agreement of sale on 30.01.1996 and the sale consideration was fixed at Rs. 15,00,000/-. Initially, the plaintiff had paid a sum of Rs. 10,00,000/- towards advance sale consideration and the balance sale consideration of Rs. 5,00,000/- was agreed to be paid at the time of registration of the sale deed. Thereafter on 05.04.1996, a sum of Rs. 15,00,000/-. Initially, the plaintiff had paid a sum of Rs. 10,00,000/- towards advance sale consideration and the balance sale consideration of Rs. 5,00,000/- was agreed to be paid at the time of registration of the sale deed. Thereafter on 05.04.1996, a sum of Rs. 2,00,000/- was paid to the 1st defendant which was duly acknowledged by him and, therefore, only a sum of Rs. 3,00,000/- is due to be paid towards balance of sale consideration. The plaintiff was ready with the balance sale consideration on 22.03.1997 and requested the 1st defendant to execute the sale deed and the 1st defendant, in turn, had informed him that the 2nd defendant had already revoked the power of attorney deed on 07.06.1996 and thereafter, expressed his inability to execute the sale deed. Then, the plaintiff had approached the 2nd defendant requesting her to execute the sale deed. On 20.03.1997, the plaintiff again called upon the 2nd defendant to execute the sale deed. But, the 2nd defendant had only sought for time to execute the sale deed. Further, according to the plaintiff, since the 2nd defendant failed to come forward to execute the sale deed on 22.03.1997, by way of notice, he called upon the 2nd defendant to come over to the registrar office at Puducherry on 28.04.1997 for execution and registration of sale deed after receiving the balance sale consideration. But, the notice sent by him got returned as the 2nd defendant had refused to received the same. The 1st defendant issued a reply expressing his inability to execute the sale deed as the power of attorney deed had already been revoked by the 2nd defendant. Since the defendants failed to executed the sale deed, the plaintiff has filed the suit for specific performance of contract and for other reliefs. 4. The 1st defendant, who was the power of attorney agent of the 2nd defendant filed his written statement and denied the execution of the sale agreement and the endorsement regarding the alleged receipt of part sale consideration from the plaintiff. He further contended that the 1st defendant had intended to borrow money from the plaintiff and at that time, the plaintiff fraudulently obtained the signature of the 2nd defendant. The defendants 1 and 2 did not sign any power of attorney deed and the power of attorney deed alleged to have been executed by the plaintiff is nothing but a forged one. The defendants 1 and 2 did not sign any power of attorney deed and the power of attorney deed alleged to have been executed by the plaintiff is nothing but a forged one. The 2nd defendant has been residing in the suit property and there is no necessity for her to give power to the 1st defendant to maintain the suit property. The 1st defendant further denied the execution of the sale agreement and the receipt of Rs. 10,00,000/- towards part of sale consideration from the plaintiff for the sale of the suit property. He further denied the receipt of another sum of Rs. 2,00,000/- towards part sale consideration on 04.05.1996 and made endorsement not he reverse of the sale agreement regarding the receipt of part sale consideration and that the signatures were forged by the plaintiff for the creation of the sale agreement. The signature found in the reply notice alleged to have been sent by him is also not that of his signature and the same was also forged by the plaintiff. 5. Based on the above pleadings on either parties, the trial court had framed the following issues for trial:- (1) Whether the registered Power of Attorney Deed dated 22.11.1995 executed by the 2nd defendant in favour of the 1st defendant is true and valid? (2) Whether the sale agreement dated 30.01.1996 entered not between the principal of the plaintiff and 1st defendant is true and valid? (3) Whether the plaintiff's principal has paid Rs. 10,00,000/- on 30.01.1996 is true? (4) Whether the plaintiff's principal has paid a further sum of Rs. 2,00,000/- to 1st defendant and the same was endorsed by the 1st defendant is true? (5) Whether the Power of Attorney Deed dated 22.11.1995 was revoked by the 2nd defendant on 07.06.1996 is true? (6) Whether the plaintiff's principal Kuppam @ Ramasamy was ready with balance sale consideration amount on 10.06.1996 is true? (7) Whether the suit is bad for non-joinder of necessary parties? (8) Whether this court has got pecuniary jurisdiction to try this suit? (9) To what relief the parties are entitled? During trial, the holder of the agreement and principal of the plaintiff was himself examined as P.W. 1 and as many as 13 documents were marked as Ex. A.1 to Ex. (8) Whether this court has got pecuniary jurisdiction to try this suit? (9) To what relief the parties are entitled? During trial, the holder of the agreement and principal of the plaintiff was himself examined as P.W. 1 and as many as 13 documents were marked as Ex. A.1 to Ex. A.13 and on the side of the defendant, 2nd defendant was examined as D.W. 1, however, no documentary evidence was produced on the side of the defendants. 6. The trial court, after having considered both the oral and documentary evidence, had granted a decree for specific performance. So far as the Issue No. 2, which related to execution of the sale agreement dated 30.01.1996, is concerned, as the defendants disputed the signature of the 1st defendant in the sale agreement as well as the endorsement made in the sale agreement regarding the receipt of further part sale consideration of Rs. 2,00,000/- from the plaintiff, the trial court had proceeded to compare to the signatures found in the sale agreement and endorsement and also in the reply notice allegedly sent by the 2nd defendant with the signature of the 1st defendant found in the vakalatnama and in the written statement filed by the 1st defendant and had come to a conclusion that the signatures in the sale agreement, endorsement and reply notice are that of the 1st defendant and held that the sale agreement is genuine and valid. Accordingly, the trial court had decreed the suit. Aggrieved by the same, the 2nd defendant preferred appeal. Pending appeal suit, the 2nd defendant made an application in I.A. No. 1058 of 2015 seeking to send for the disputed signatures in the sale agreement which was marked as Ex. A.1 and the endorsement made thereon, which was marked as Ex. A.3 and the reply notice allegedly sent by the 1st defendant, which was marked as Ex. A.4 to the hand writing expert for comparison. The first appellate court had dismissed the application holding that the comparison of the signatures made by the trial court itself is sufficient to decide the issue and concurring with the findings rendered by the trial court the first appellate court has dismissed the appeal suit. A.4 to the hand writing expert for comparison. The first appellate court had dismissed the application holding that the comparison of the signatures made by the trial court itself is sufficient to decide the issue and concurring with the findings rendered by the trial court the first appellate court has dismissed the appeal suit. Challenging the above judgment and decree of the first appellate court, the 2nd defendant is before this court with this second appeal raising the following substantial question of law:- (1) Are the courts below right in decreeing the suit when the plaintiff Kasthuri has not even filed an application under Order III Rule 1 and 2 CPC seeking permission of the court to appear and represent as a power of attorney of Kuppan @ Ramasamy in the suit? (2) When the power of attorney, the sale agreement and the endorsement are denied are the courts below right in comparing the signatures with the bare eyes without taking the assistance of an expert, especially when an application was taken to that effect by the appellant in the first appellate court? (3) Are the courts below right in decreeing the suit merely on the loopholes in the defendant's case brushing aside the basic principle that the plaintiff has to prove his case independent of the defendants' case? (4) When the agreement is not proved and there is no passing of consideration are the courts below right in decreeing the suit for specific performance? (5) In the given facts and circumstances are the courts below right in granting the discretionary relief of specific performance in favour of the 1st respondent? 7. Earlier, when the second appeal was listed for admission, this court had ordered notice to the respondents. Accordingly, the 1st defendant had entered appearance through a counsel. I have heard the learned counsel for the appellant/2nd defendant and the learned counsel for the 1st respondent/plaintiff and also perused the records carefully. 8. The learned counsel for the appellant contended that when the defendant specifically disputed the signatures found in the agreement of sale and endorsement and also in the reply notice, the courts below ought to have forwarded the disputed to the hand writing expert for comparison with the contemporaneous documents as to whether the disputed signatures are that of the 1st defendant. Without doing so, the trial court itself had proceeded to compare the signatures on its own with the signatures found in the vakalatnama and the written statement of the 1st defendant which are not contemporaneous documents and the same were filed only in the year 2008 and had given a finding that the signatures in the agreement, endorsement and reply notice are that of the 1st defendant. Thus, according to the learned counsel for the 2nd defendant, the course adopted by the trial court in comparing with the disputed signatures with the signatures in the documents which are not contemporaneous is totally against the settled law. 9. The learned counsel for the appellant/2nd defendant further submitted that the courts have failed to consider the fact that the plaintiff was never ready and willing to execute the sale deed. According to him, after issuing the legal notice on 22.03.1997, the suit came to be filed only on 29.01.1999 after more than 20 months. There is no explanation for the delay and plaintiff has not proved that he was ready and willing to perform his part of contract and to get the sale deed executed. 10. Per contra, the learned counsel for the respondent would vehemently contend that under Section 73 of The Evidence Act, the court has ample power to compare the signature and both the courts below have concurrently held that the signatures found in the agreement of sale, endorsement and the reply notice are that of the 1st defendant. In the above circumstances, there was no necessity to send for the disputed signatures for expert opinion. That part, in the reply notice send by the 1st defendant, he had clearly admitted that he had received the part sale consideration to extent of Rs. 12,00,000/-, however, he had expressed his inability to execute the sale deed as the power of attorney deed was cancelled by the 2nd defendant, who was his principal. Having considered the fact that substantial portion of the sale consideration had already been paid and the plaintiff has been consistently insisting on the defendant to execute the sale deed and also fixed time for performance of contract, it was only the defendants who had refused to perform their part of contract. The plaintiff was always ready and willing to get the sale deed execute in his favour after paying the balance sale consideration. The plaintiff was always ready and willing to get the sale deed execute in his favour after paying the balance sale consideration. After having considered these factual aspects only both the courts below have concurrently held that the power of attorney deed and the sale agreement have been proved and consequently decreed the suit. The findings recorded by the courts below were based on evidence and it does not suffer from any perversity or infirmity warranting interference. Thus, the learned counsel for the respondent therefore, submitted that there is no substantial question of law involved and the second appeal is only liable to be dismissed at the admission stage itself. 11. I have considered the rival submissions carefully. 12. The plaintiff had filed the suit for specific performance of contract of agreement of sale dated 30.01.1996 (Ex. A.2) said to have executed by the 1st defendant in favour of the plaintiff on the strength of the Power of Attorney Deed dated 22.11.1995 (Ex. A1) said to have been executed by the 2nd defendant. Even though the very execution of the power of attorney deed was denied by both the defendants 1 and 2, admittedly, Ex. A.1 power of deed came to be revoked by the 2nd defendant under Ex. A4 and therefore, it is not now open to the defendants to say that there was no valid power given to the 1st defendant. 13. The main contention of the defendants is that the 1st defendant never executed any sale agreement in favour of the plaintiff and received any advance amount towards sale consideration under Ex. A.2 and a further amount of Rs. 2,00,000/- towards part sale consideration for the sale of the suit property and made an endorsement under Ex. A.3. According to the defendant, the 1st defendant's signature in Ex. A2 and Ex. A.3 were forged by the plaintiff. It is the case of the plaintiff that when notice was sent to the defendants under Ex. A.5 seeking enforcement of sale agreement, a reply was issued by the 1st defendant on 02.04.1997 under Ex. A.7, wherein the 1st defendant had accepted the receipt of part sale consideration and expressed his inability to execute the sale deed as the power of attorney deed has been canceled in the mean time. The defendants equally disputed the signature in Ex. A.7, contending that the signature contained in Ex. A.7, wherein the 1st defendant had accepted the receipt of part sale consideration and expressed his inability to execute the sale deed as the power of attorney deed has been canceled in the mean time. The defendants equally disputed the signature in Ex. A.7, contending that the signature contained in Ex. A.7 was also forged by the plaintiff. A specific issue was framed by the trial court regarding the genuineness of the sale agreement. But, the trial court without forwarding the disputed signatures to the hand writing expert for comparison with the signatures of the 1st defendant of the contemporary period, it had simply compared the signatures found in Ex. A.2, Ex. A.3 and Ex. A.7 with the signatures of the 1st defendant in the Vakalatnama filed on behalf of the 1st defendant and written statement filed by the 1st defendant had gone into the minute details of the signature and had come to a conclusion that the signatures in Ex. A.2, Ex. A.3 and Ex. A.7 are that of the 1st defendant. Pending appeal, the 2nd defendant filed an application with a specific plea to send for the disputed signatures to the hand writing expert for comparison with the admitted signatures of the contemporary period. But, the first appellate court has simply dismissed the application mainly on the ground that the 1st defendant though disputed the signatures on the documents in question had not chosen to enter into the witness box to give evidence and had simply come to a conclusion that the comparison made by the trial court is sufficient to decide the dispute and had proceeded to dismiss the appeal suit. 14. No doubt, under Section 73 of the Evidence Act, the court is empowered to compare the signature disputed signature with the admitted signature and to come to its independent conclusion. But, it is equally well-settled law that the court should not take up the responsibility of comparing the disputed signature with the admitted signature and the prudent course is to obtain an opinion of an expert. Those are matters of technicalities and the same would require the assistance of technical experts. Even a signature pattern look alike, but, only if it is examined by the expert concerned, the flaws in the signature will be detected and the courts should desist from indulging in such venture. 15. Those are matters of technicalities and the same would require the assistance of technical experts. Even a signature pattern look alike, but, only if it is examined by the expert concerned, the flaws in the signature will be detected and the courts should desist from indulging in such venture. 15. In State (Delhi Admn.) v. Pali Ram AIR 1979 SC 14 : (1979) 2 SCC 158 , the Hon'ble Supreme Court has held as follows:- 30. The matter can be viewed from another angle, also. Although there is no legal bar to the Judge using his own eyes to compare the disputed writing with the admitted writing, even without the aid of the evidence of any handwriting expert, the Judge should, as a matter of prudence and caution, hesitate to base his finding with regard to the identity of a handwriting which forms the sheet-anchor of the prosecution case against a person accused of an offence, solely on comparison made by himself. It is therefore, not advisable that a Judge should take upon himself the task of comparing the admitted writing with the disputed one to find out whether the two agree with each other; and the prudent course is to obtain the opinion and assistance of an expert. 16. In Ajit Savant Majagvai v. State of Karnataka AIR 1997 SC 3255 : (1997) 7 SCC 110 : LNIND 1997 SC 1089, the Hon'ble Supreme Court has held as follows:- 38. As a matter of extreme caution and judicial sobriety, the Court should not normally take upon itself the responsibility of comparing the disputed signature with that of the admitted signature or handwriting and in the event of the slightest doubt, leave the matter to the wisdom of experts. But this does not mean that the Court has not the power to compare the disputed signature with the admitted signature as this power is clearly available under Section 73 of the Act. [See: State (Delhi Admn.) v. Pali Ram [ (1979) 2 SCC 158 : 1979 SCC (Cri) 389 : AIR 1979 SC 14 ].] 17. In Ajay Kumar Parmar v. State of Rajasthan AIR 2013 SC 633 : (2012) 12 SCC 406 : LNIND 2012 SC 585, the Hon'ble Supreme Court has held as follows:- 28. [See: State (Delhi Admn.) v. Pali Ram [ (1979) 2 SCC 158 : 1979 SCC (Cri) 389 : AIR 1979 SC 14 ].] 17. In Ajay Kumar Parmar v. State of Rajasthan AIR 2013 SC 633 : (2012) 12 SCC 406 : LNIND 2012 SC 585, the Hon'ble Supreme Court has held as follows:- 28. The opinion of a handwriting expert is fallible/liable to error like that of any other witness, and yet, it cannot be brushed aside as useless. There is no legal bar to prevent the court from comparing signatures or handwriting, by using its own eyes to compare the disputed writing with the admitted writing and then from applying its own observation to prove the said handwritings to be the same or different, as the case may be, but in doing so, the court cannot itself become an expert in this regard and must refrain from playing the role of an expert, for the simple reason that the opinion of the court may also not be conclusive. Therefore, when the court takes such a task upon itself, and findings are recorded solely on the basis of comparison of signatures or handwritings, the court must keep in mind the risk involved, as the opinion formed by the court may not be conclusive and is susceptible to error, especially when the exercise is conducted by one, not conversant with the subject. The court, therefore, as a matter of prudence and caution should hesitate or be slow to base its findings solely upon the comparison made by it. However, where there is an opinion whether of an expert, or of any witness, the court may then apply its own observation by comparing the signatures, or handwritings for providing a decisive weight or influence to its decision. 18. Keeping in mind, the above said settled legal position of law, let me now consider the present case. However, where there is an opinion whether of an expert, or of any witness, the court may then apply its own observation by comparing the signatures, or handwritings for providing a decisive weight or influence to its decision. 18. Keeping in mind, the above said settled legal position of law, let me now consider the present case. In the instant case, both the courts below without referring to the disputed signatures for comparison by an expert, resorted to take up the task of comparing the disputed signatures with the alleged admitted signatures, especially, when an application was made by the 2nd defendant before the first appellate court, seeking to send for the disputed signatures for comparison with the admitted signatures, the first appellate court had simply dismissed the application and concurred with the findings of the trial court and ultimately dismissed the appeal suit. 19. Yet another aspect to be considered in this second appeal is that the disputed signatures found in Ex. A.2, Ex. A. 3 and Ex. A.7 are of the year 1996 and the trial court had compared the same with the signatures of the 1st defendant found in the vakalatnama and the written statement filed by the 1st defendant in the year 2008 which are not of the contemporary period and much after the disputed documents. Based on such comparison the trial court had simply come to the conclusion that the signatures in Ex. A.2, Ex. A.3 and Ex. A.7 are that of the 1st defendant. Even though the opinion of the expert is not a conclusive proof, but, to decide the issue, along with the other surrounding circumstances, the opinion of the hand writing expert would be helpful. But, both the courts below had, without referring to the disputed signatures for expert's opinion, on their own come to the conclusion that the signatures were that of the 1st defendant by comparing the same with the signatures in the documents namely, Vakalatnama and the Written Statement which are not related to the contemporary period. But, both the courts below had, without referring to the disputed signatures for expert's opinion, on their own come to the conclusion that the signatures were that of the 1st defendant by comparing the same with the signatures in the documents namely, Vakalatnama and the Written Statement which are not related to the contemporary period. Merely because the 1st defendant, who had alleged his signatures were forged, did not enter into the witness and subject himself for examination, it cannot be held that adverse inference can be drawn against him, especially, when the 2nd defendant also disputed the signatures of the 1st defendant and came forward with an application seeking to send for the disputed signatures for comparison to the hand writing expert at the appellate stage. In the above circumstances, this court is of the considered view that the task undertaken by the trial court in comparing the disputed signatures with the admitted signatures of the 1st defendant itself is not valid in the eye of law. Thus, the findings given by the trial court by comparing with the disputed signatures of the 1st defendant in Ex. A.2, Ex. A.3 and Ex. A.7 with the signatures of the 1st defendant in the vakalatnama and the written statement filed in the suit which was the basis for decreeing the suit and the findings of the first appellate court concurring with the findings of the trial court are not sustainable in law and consequently, the judgment and decree of the first appellate court are liable to be set aside. 20. For the foregoing discussions, this court is of the view that the second appeal succeeds and the judgment and decree of the first appellate court are liable to be set aside and the matter needs to be remanded back to the first appellate court for fresh disposal after getting opinion from the hand writing experts. 21. In the result, this second appeal is allowed and the judgment and decree of the first appellate court are set aside and the appeal suit in A.S. No. 9 of 2005 is remanded to the first appellate court for fresh disposal. The 1st defendant is directed to submit the reliable documents containing his undisputed signatures of the contemporary period of Ex. A.2, Ex. A.3 and Ex. The 1st defendant is directed to submit the reliable documents containing his undisputed signatures of the contemporary period of Ex. A.2, Ex. A.3 and Ex. A.7 so as to enable the first appellate court for referring to the disputed signatures with the admitted signatures for comparison by the hand writing expert. On getting the opinion from the hand writing expert concerned, the learned first appellate Judge shall decide the appeal suit on merits and in accordance with law based on the available materials without influenced by any of the findings recorded earlier. Such exercise shall be completed within a period of six months from the date of receipt of a copy of this order. No costs. Consequently, connected CMPs are closed.