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2021 DIGILAW 1408 (MAD)

S. Balakrishnan v. S. Kannan

2021-04-21

G.R.SWAMINATHAN

body2021
JUDGMENT : (Prayer: Second Appeal filed under Section 100 of Civil Procedure Code, against the judgment and decree of the Principal District Court, Thoothukudi, dated 21.07.2011made in A.S.No.3 of 2010, reversing judgment and decree, dated 12.10.2009 made in O.S.No.9 of 2007, on the file of the Sub Court, Koilpatti.) 1. The plaintiff in O.S.No.9 of 2007 on the file of the Sub Court, Kovilpatti, is the appellant in this second appeal. The case of the plaintiff is that the defendant is his relative and that he approached him for advancing a loan of Rs.90,000/- on 08.01.2006. The plaintiff gave the said sum to the defendant after taking Ex.A.1/promissory note from him. The defendant had agreed to repay the said amount with interest on demand. The plaintiff alleged that the defendant did not repay the said amount, when he demanded. The plaintiff issued Ex.A.2/legal notice dated 22.01.2007. The said notice was returned as unserved. The plaintiff filed O.S.No.9 of 2007, for recovery of a sum of Rs.1,01,700/- with interest at the rate of 12% per annum from the date of plaint till the date of realization. The defendant entered appearance and denied having executed the suit promissory note. The learned Trial Judge framed the necessary issues. The plaintiff examined himself as P.W.1 and the two attesting witnesses were examined as P.W.2 and P.W.3. Ex.A.1 to A.3 were marked on the side of the plaintiff. The defendant examined himself as D.W.1 and the scribe of the promissory note was examined as D.W.2. 2. After considering the evidence on record, the learned Trial Judge by judgment and decree dated 12.10.2009 decreed the suit as prayed for. Questioning the same, the respondent herein filed A.S.No.3 of 2010 before the Principal District Court, Thoothukudi. By judgment and decree dated 21.07.2011, the judgment and decree passed by the Trial Court was set aside and the first appeal was allowed. Challenging the same, this second appeal came to be filed. 3. The second appeal was admitted on the following substantial question of law:- “Whether the Lower Appellate Court is correct in law in reversing the findings of the Lower Court, though the appellant has clearly proved the execution of Ex.A.1 by examining the attestors viz., P.Ws.2 and 3?” 4. Heard the learned counsel on either side. 5. 3. The second appeal was admitted on the following substantial question of law:- “Whether the Lower Appellate Court is correct in law in reversing the findings of the Lower Court, though the appellant has clearly proved the execution of Ex.A.1 by examining the attestors viz., P.Ws.2 and 3?” 4. Heard the learned counsel on either side. 5. The learned counsel for the appellant would submit that the First Appellate Court erred in reversing the well considered decision of the Trial Court. The suit was laid on the strength of the suit promissory note. After the defendant filed written statement denying his signature in Ex.A.1, the plaintiff took steps for referring the suit promissory note for obtaining the opinion of the handwriting expert. The interlocutory application filed by the appellant herein was allowed but then the handwriting expert was not in a position to give any opinion for want of admitted signature for comparison and returned the suit promissory note. The Trial Court called upon the defendant to give his sample signatures. The learned Trial Judge undertook the task of comparison on his own and eventually came to the conclusion that the suit promissory note was very much executed by the defendant. Once the Trial Court came to the said conclusion as regards execution, presumption under Section 118 of the Negotiable Instruments Act got triggered. Inasmuch as there was no rebuttal evidence, the Trial Court rightly decreed the suit. The learned counsel found fault with the First Appellate Court for questioning the power and authority of the Trial Court in undertaking the task of comparison. The learned counsel submitted that Section 73 of the Indian Evidence Act clearly empowered the Court to undertake such a comparison. He also would point out that the plaintiff had demonstrated his bonefides by taking out an application for referring the suit promissory note for the opinion of the handwriting expert. The learned counsel also placed reliance on the following reported decisions:- (i) (2003) 3 SCC 583 (Lalit Popli v. Canara Bank And Others) (ii) (1999) 3 SCC 35 (Bharat Barrel & Drum Manufacturing Company v. Amin Chand Payrelal) (iii) (2008) 7 SCC 655 (Mallavarapu Kasivisweswara Rao v. Thadikonda Ramulu Firm and Others)” In the light those decisions, the learned counsel wanted me to answer the substantial question of law in favour of the appellant and restore the judgment and decree passed by the Trial Court. 6. Per contra, the learned counsel for the respondent would submit that the judgment and decree passed by the First Appellate Court does not call for any interference and pressed for dismissal of the second appeal. 7. I carefully considered the rival contentions and perused the evidence on record. The suit has been instituted on the strength of Ex.A.1/promissory note. The defendant had denied his signature in the suit promissory note. Therefore, the burden lay squarely on the plaintiff to establish that the suit promissory was actually executed by the defendant. Only if the execution of the promissory note is admitted or otherwise established, presumption under Section 118 of the Negotiable Instruments Act can be invoked and not otherwise. In the case on hand, the suit promissory note has been signed in English. The defendant is a Court employee (Office Assistant) and he appears to be in the habit of usually signing in Tamil but of course, by maintaining his initial in English. For the reasons already mentioned, opinion of the handwriting expert could not be obtained, even though the plaintiff did take steps. In such a background, the Trial Court itself undertook the task of comparison. I do concur with the contention of the learned counsel for the appellant that the Court is very much possessed of jurisdiction to undertake the task of comparison. In the case on hand, the learned Trial judge had come to the conclusion that the promissory note had been executed by the defendant only on the strength of first letter namely, the initial alone. I am afraid that it would be most unsafe to jump to a conclusion on the identity of the author of the signature merely by matching one letter of the questioned signature with the admitted signature. 8. Of course, the promissory note does not require to be attested. But in the case on hand, the document has been attested by two witnesses and both the witnesses have been examined as P.W.2 and P.W.3. It is seen from Ex.A.1 that it was written by one scribe namely., Meenatchisundaram. The plaintiff could not examine the said Meenatchisundaram on his side. However, the defendant had examined the scribe as D.W.2. The testimony of D.W.2 completely undermines the case of the plaintiff. It is seen from Ex.A.1 that it was written by one scribe namely., Meenatchisundaram. The plaintiff could not examine the said Meenatchisundaram on his side. However, the defendant had examined the scribe as D.W.2. The testimony of D.W.2 completely undermines the case of the plaintiff. The plaintiff in his testimony had stated that he had purchased the promissory note form as well as the revenue stamp only from D.W.2 and that it was D.W.2 who filled in the particulars. According to P.W.1, D.W.2 came his house and filled in the promissory note. But D.W.2 would state that he is never in the habit of going to anybody's house. Though the attesting witnesses have spoken in favour of the plaintiff, the scribe who appears to have played a central role had spoken in favour of the defendant. It is a case of oath against oath. There is no definite evidence regarding the disputed signature itself. More than anything else, the defendant had clearly stated that the plaintiff's wife and his wife were sisters and that his wife passed away in the year 2003 and that they were not in talking terms thereafter. It is stated that the plaintiff's wife and the defendant's wife had together done finance business. It appears that the persons to whom loans were advanced through the defendant's wife had defaulted and the plaintiff wanted the defendant to assume responsibility for those transactions. Since the defendant had declined, according to the defendant, the suit promissory note had been fabricated and the litigation launched on that basis. In my view, the defendant has given a probable reason as to why the case itself has been foisted on him. 9. In this view of the matter, the judgment and decree passed by the First Appellate Court does not call for any interference. I hold that the plaintiff has not at all established the due execution of Ex.A.1/promissory note by the defendant. The substantial question of law is answered against the appellant and the second appeal stands dismissed. No costs.