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2023 DIGILAW 1093 (AP)

Kolusu Murthy v. Somireddy Ramachandra Rao

2023-07-18

B.S.BHANUMATHI

body2023
ORDER : 1. This revision petition is filed under Article 227 of the Constitution of India by the petitioner/defendant challenging the order, dated 19.01.2023, dismissing the petition in I.A. No. 666 of 2022 in O.S. No. 10 of 2021 on the file of the Court of II Additional Senior Civil Judge, Kakinada, filed under Section 45 of the Indian Evidence Act, 1872, seeking to send Exs.A.13, A.18, A.19, A.20, A.26 to A.31 to an expert to find out the age of the ink on these documents. 2. The parties will hereinafter be referred to as they were arrayed in I.A. No. 666 of 2022. The petitioner is the defendant and the respondents are the plaintiffs. 3. The suit for recovery of money was filed by the respondents against the petitioner by enforcing a mortgage deed. The plaintiffs’ case is that the defendant borrowed a sum of Rs.1,00,000/- on 27.01.1997 from the 1st plaintiff agreeing to repay the same with interest at the rate of 24% per annum and executed a demand promissory note in his favour on the even date. The defendant deposited the title deeds relating to his property situated in Godarigunta of Kakinada (‘A’ schedule) and thereby created a mortgage by deposit of title deeds in his favour evidencing the same. The defendant has also executed a memorandum of the said deposit of title deed in favour of 1st plaintiff on 29.01.1997. Thus, the defendant borrowed the said amount, and thereby, created an equitable mortgage in favour of 1st plaintiff mortgaging ‘A’ schedule property for due discharge of the above debt. The defendant further borrowed another sum of Rs.70,000/- on 27.01.1997 from the 2nd plaintiff agreeing to repay the same with interest at 24% per annum and executed a demand promissory note in her favour on the even date, and with a view to give security deposited the title deed relating to his property situated at Godarigunta of Kakinada (‘B’ schedule) with the 2nd plaintiff at Kakinada on 28.01.1997 and created a mortgage by deposit of title deeds in her favour. The defendant further borrowed another sum of Rs.30,000/- on 03.02.1997 from the 2nd plaintiff agreeing to repay the same with interest at 24% per annum and executed a demand promissory note in her favour. The defendant further borrowed another sum of Rs.30,000/- on 03.02.1997 from the 2nd plaintiff agreeing to repay the same with interest at 24% per annum and executed a demand promissory note in her favour. On verification after adjustment of the last payments made by the defendant on 26.01.2009 viz., Rs.1,29,400/- to 1st plaintiff and Rs.62,840/- to 2nd plaintiff, in toto a sum of Rs.1,92,240/- and thereafter, the balance remainder amounts due from the defendant to the plaintiffs were arrived at Rs.7,00,000/- (Rs.3,75,000/- to 1st plaintiff + Rs.3,25,000/- to 2nd plaintiff) representing the principal and interest by then. The defendant executed a demand promissory note for Rs.7,00,000/- in favour of plaintiffs 1 & 2 on 26.01.2009 agreeing to repay the same with interest at 24% per annum. The defendant having an intention to continue the earlier existing mortgage, and thereby, extended the earlier security of interest for the balance remainder mutually arrived at for Rs.7,00,000/- on 26.01.2009 (properties mentioned at ‘A’ and ‘B’ schedule) with the plaintiffs at Kakinada. Thereafter, the defendant failed to pay any amount in spite of repeated demands by plaintiffs. Hence, the suit. 4. The defendant filed written statement denying the case of the plaintiffs totally and stating that 1st plaintiff is the brother of Somireddy Babji who used to do finance business in the name and style of “Surya Finance” at Buddavarapu Vari Veedhi, near Masjid Centre, Kakinada. The defendant borrowed an amount of Rs.2,00,000/- from the said Babji in the year 1997 with interest at the rate of Rs.3/- per month and at that time, Babji obtained the signatures of the defendant on white papers, blank promotes and stamp papers etc., along with the original documents. In the month of February, 1998, the defendant paid principal amount of Rs.2,00,000/- to the said Babji in the presence of Mattapalli Sanjeeva Rao and requested him to return the blank pronotes, blank white papers along with the original documents. But, Babji informed that the documents were mixed with other records and as and when he traces the same, they will be handed over to the defendant. On 16.06.2008, the said Babji executed a letter with his own handwriting with false calculations and finally shown an amount of Rs.1,27,000/- as principal and Rs.4,64,820/- towards interest against the principal for 122 months, i.e., from 01.4.1998 to 01.04.2008. On 16.06.2008, the said Babji executed a letter with his own handwriting with false calculations and finally shown an amount of Rs.1,27,000/- as principal and Rs.4,64,820/- towards interest against the principal for 122 months, i.e., from 01.4.1998 to 01.04.2008. The defendants several times approached the said Babji for the documents but there is no positive response from him saying that they were not traced out. Recently, the defendant sold the plaint schedule properties to third parties by executing registered sale deeds and handed over the site to the purchasers. Thus, the plaint schedule property is not in the hands of the plaintiffs. The suit is filed with an ulterior motive to harass the defendant. The 1st plaintiff is younger brother of Babji, the 2nd plaintiff is the wife of Venkata Narasimha Rao. The said Babji, 1st plaintiff and Venkata Naasimha Rao are close associates. In order to grab the properties of the defendant and with an evil intention, forging the signatures of the defendant, fabricated the alleged promotes, the deed of memorandums, post cards etc., got filed the suit to get wrongful gain for themselves. The defendant never wrote any post cards, letters as stated in the plaint. There is no creditor and debtor relationship between the plaintiff and defendant. The suit is barred by limitation and the value of the suit is not correct. 5. The petitioner filed the petition under Section 45 of the Evidence Act stating that he filed the written statement averring that he had never written any letters to the respondents nor had he borrowed any amount from the respondents as stated in the plaint. The suit is barred by limitation and the value of the suit is not correct. 5. The petitioner filed the petition under Section 45 of the Evidence Act stating that he filed the written statement averring that he had never written any letters to the respondents nor had he borrowed any amount from the respondents as stated in the plaint. He further stated that the writings on the alleged promissory notes, the post card letters and the memorandum of deposit of title deeds appeared to be very fresh and they were fabricated and forged just before filing of the suit as is evident from the facts that the respondents got issued a legal notice dated 25.09.2018 to the petitioner and thereafter he got issued a reply dated 03.10.2018 requesting the respondents to supply the copies of documents, but they failed to supply all the documents and therefore again on 12.10.2018 the petitioner got issued further reply notice through his counsel to the counsel for the respondents and thereafter, on 29.04.2019, i.e., after six months after the receipt of the reply notice, the copies of the remaining documents were furnished to the petitioner. Therefore, the petitioner contends that determination of age of ink in these disputed documents would establish the defence. 6. The respondents filed a counter denying the statements in the affidavit and admitting the fact that the petitioner raised a plea of forgery in his written statement. It is further stated that the petition was filed at a belated stage only after the cross-examination of P.W.1 was over and that P.W.2, who is one of the attestors was won over by the petitioner and as such, he avoided court and that it is a settled law that the determination of age of ink is not perfect science as held by this High Court in G.V. Rami Reddy vs. D. Mohan Raju, 2019 (4) ALT 400 (A.P.) and the decision of the High Court of Telangana in J. Purushottam vs. State of Telangana, 2014 (1) LS 64 decided on 22.02.2019 and therefore, the respondents prayed to dismiss the petition. 7. 7. The trial Court dismissed the petition observing that the petitioner did not come to the Court on specific grounds seeking to send the above documents to an expert in order to know the age of the ink and filed the present petition on the sole untenable ground that the respondent did not furnish copies of the documents immediately. The trial Court further observed that exhibit A13 which is a original registered sale deed, dated 01.09.1983, and exhibit A20 which is an office copy of the legal notice, dated 25.09.2018, do not need any opinion of an expert regarding the age of the ink and that no purpose would be served in sending the above documents to determine the age of the ink about the recitals of the documents. 8. The revision petitioner contends that the trial court failed to give him an opportunity to prove his defence; that the trial court ought not to have dismissed the petition stating that the document of the year 1998 under the impression that the age of the ink cannot be determined on the basis of writing; and that the trial court failed to follow the development in science and its parameters in adjudicating the matter in the interlocutory application. 9. Learned counsel for the petitioner submitted that irrespective of the opinion on disputed signatures on the suit promissory note and other documents, if the age of the ink used in this document is ascertained, that would establish the defence that such documents were not executed on the dates mentioned on those documents. He further submitted that in certain labs, the facility to determine the age of the ink is also available and therefore, the relief sought by the petitioner cannot be declined. 10. Learned counsel for the respondents submitted that mere determination of the age of the ink of the writing in the documents when there is no proof that the disputed signatures are forged. He further submitted that all those documents which are sought to be sent to an expert do not require examination to determine the age of the ink since most of them are either registered documents or postal cards and they cannot be created just before filing of the suit. He further supported the order of the trial Court on the reasons given by it to dismiss the petition. 11. He further supported the order of the trial Court on the reasons given by it to dismiss the petition. 11. Before proceeding further, it is pertinent to refer the details of the documents sought to be examined for the purpose of determining the age of the ink used on those documents. The documents sought to be examined are: S. No. Exhibit Number Description of the document 1 A13 Original Sale deed, dated 01.09.1983 2 A18 Original promissory note, dated 03.02.1997 3 A19 Original promissory note, dated 26.01.2019 4 A20 Office copy of legal notice, dated 25.09.2018 5 A26 Memorandum, dated 29.01.1997 6 A25 Four post cards, dated 30.01.1997, 30.01.1997, 15.09.2018 and 15.09.2018 6 A27 Memorandum, dated 28.01.1997 The details of exhibits A28 to A31 are not known. 12. In fact, the petitioner sought to determine the age of the ink on promissory notes, the postal acknowledgment cards and the memorandum of deposit of title deeds stating that they appear to be very fresh and filled just before filing of the suit. However, in the prayer in the petition exhibits A13, A18, A19, A20 and A26 to A31 are asked to be sent. The mistake in mentioning the exhibit numbers could be due to adopting the same serial order of the documents as in the list mentioned in the plaint at Sl.nos.13, 18, 19, 26 to 31 as hereunder: S. No. Date Description of the document 13 27.01.1997 pronote executed by defendant in favour of 1st plaintiff 18 27.01.1997 pronote executed by defendant in favour of 2nd plaintiff 19 03.02.1997 pronote executed by defendant in favour of 2nd plaintiff 26 30.01.1997 post card sent by defendant to 1st plaintiff 27 30.01.1997 post card sent by defendant to 2nd plaintiff 28 15.09.2018 post card sent by defendant to 1st plaintiff 29 15.09.2018 post card sent by defendant to 2nd plaintiff 30 29.01.1997 Memorandum executed in favour of 1st plaintiff 31 29.01.1997 Memorandum executed in favour of 2nd plaintiff 13. Whereas exhibits A13, A18, A19, A20 and A26 to A31 which are indicated in the preceding paragraph, are not in the same serial order as in the list of documents shown in the plaint. Exhibit A25 contains the postal cards, four in number, which corresponds to documents at serial numbers 26 to 29 in the list of documents of the plaint. Exhibit A25 contains the postal cards, four in number, which corresponds to documents at serial numbers 26 to 29 in the list of documents of the plaint. But, the trial Court, in its order referred to exhibit A25 regarding postal acknowledgment cards which is not referred in the prayer in the petition, because it appears that the trial Court is conscious that the petitioner sought relief regarding postal acknowledgment cards as well. 14. On a reading of the entire facts, it appears that the description of the document in the prayer of the petition is, in fact, drafted in the sense that instead of mentioning the actual series of the exhibit numbers assigned to the documents, exhibit numbers are mentioned by taking serial order of the documents in the plaint. As such, it is now to be seen whether determination of age of the ink in these documents stated at serial Nos.13, 18, 19, 20, 30 & 31 in the plaint list of documents is necessary or not. 15. The purpose of examination of these documents to determine the age of the ink to prove that these documents were created just before filing of the suit, but not on the dates they bare. Therefore, it cannot be said that no purpose would be served by determining the age of the ink without determining the genuineness of the signatures on these documents (in view of the plea of forgery of signatures as well). The proof of either forgery of signatures or the fact that the documents were not executed on the dates they bare would help the defendant in establishing his defence. Therefore, merely because, the defendant has not asked to determine the genuineness of the signatures on the disputed documents, the relief of determining the age of the ink used in the text of the body of these documents need not be refused. Therefore, it is clear misunderstanding that the petitioner sought the relief just on the ground that there was delay in supply of the documents. Since the trial Court disposed of the petition basing on an erroneous appreciation of the facts which are indicated in the foregoing discussion, the order needs to be set aside and the petition is to be allowed. 16. Since the trial Court disposed of the petition basing on an erroneous appreciation of the facts which are indicated in the foregoing discussion, the order needs to be set aside and the petition is to be allowed. 16. In the result, the Civil Revision Petition is allowed setting aside the order, dated 19.01.2023, passed by II Additional Senior Civil Judge, Kakinada, in I.A. No. 666 of 2022 in O.S. No. 10 of 2021 and allowing the said petition directing the trial Court to send the documents of three promissory notes, dated 27.01.1997, 03.02.1997, and 26.01.2009, two memorandum of deposit of title deeds both dated 29.01.1997, and four postal acknowledgment cards, dated 30.01.1997, 30.01.1997, 15.09.2018 and 15.09.2018 irrespective of the serial numbers of the exhibits assigned to them, to an expert of any Government Forensic Lab where such facility of determination of age of the ink is available. 17. There shall be no order as to costs. 18. Pending miscellaneous applications, if any, shall stand closed.