S.A.No.836 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 22.09.2022
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.836 of 2017
and
C.M.P.No.20871 of 2017
N.Ramalingam ...Appellant
Vs
M.Ramalingam ... Respondent
Prayer: Second Appeal is filed under Section 100 of C.P.C against the
judgment and decree dated 24.09.2013 in A.S.No.3 of 2013 on the file of
the III Additional District and Sessions Court, Cuddalore, Vridhachalam
confirming the judgment and decree dated 24.08.2011 in O.S.No.54 of 2010
before the Additional Sub Court, Vridhachalam.
For Appellant : Ms.R.Meenal
For Respondent : Mr.D.Shivakumaran
JUDGEMENT
1/15
https://www.mhc.tn.gov.in/judis S.A.No.836 of 2017 The unsuccessful defendant before the Courts below in a suit filed for recovery of money under a promissory note is the appellant before this Court.
2. The facts necessary for disposing of the second appeal are herein below narrated and the parties are referred to in the same litigative status as before the Courts below:
Plaintiff's case:
The plaintiff had filed the suit O.S.No.54 of 2010 on the file of the Additional Subordinate Court, Virudhachalam for recovery of a sum of Rs.1,37,106/- with costs and subsequent interest. It is the case of the plaintiff that the defendant had borrowed a sum of Rs.54,000/- from one Latha, W/o. Kuzhanthaivel on 07.04.2007 and had executed a promissory note agreeing to repay the amount with interest @ 12% per annum and once again another sum of a like amount was honoured on 11.04.2007 for which 2/15 https://www.mhc.tn.gov.in/judis S.A.No.836 of 2017 another promissory note was executed. The said Latha on 02.03.2010 had made over the two promissory notes in favour of the plaintiff after receiving the entire principal and interest. The plaintiff would submit that despite repeated demands, the defendant had not come forward to repay the said amount, constraining the plaintiff to issue a legal notice dated 08.03.2010. The said legal notice was received by the defendant on 10.03.2010, for which, a reply notice was issued by him containing false allegations. Therefore, left with no other alternative, the plaintiff has come forward with the above suit.
Written statement of the defendant:
The defendant denied the allegations contained in the plaint and had in clear and categoric terms stated that he had not executed the promissory note in favour of the said Latha nor had he received any amount stated therein. It is stated that on 15.04.2004, the defendant's son Sankar had executed a Mortgage Deed in favour of Latha's husband, Kuzhanthaivel, in which, the defendant had signed as a witness. Since the son of the 3/15 https://www.mhc.tn.gov.in/judis S.A.No.836 of 2017 defendant had not discharged the said loan, the said Kuzhanthaivel had asked the defendant to discharge the loan. However, the defendant had refused to comply with the demand stating that it was his son who had borrowed the money, therefore, he would not discharge the loan. Angered by the response, it appears that the said Kuzhanthaivel has forged the two promissory notes in the name of his wife latha. The defendant had not borrowed any amount from the said Latha nor had he executed the promissory note.
Trial Court:
3. The learned Additional Subordinate Judge, Vridhachalam had framed the following issues:
1/ thjp jhthtpy; nfl;Ls;s bjhif U:/1.37.106-?k;. mjw;F gpd;tl;oa[k; mtUf;F fpilf;ff;Toajh?
2/ 7/4/2007 kw;Wk; 11/4/2007 njjpapl;l ,U flDWjpr;rPl;LfSk; g[idag;gl;l MtzkhFk; 4/15 https://www.mhc.tn.gov.in/judis S.A.No.836 of 2017 vd;Wk;. nkw;go Mtz';fisa[k;. gpujpthjpa[k; bjhif mile;J bfhz;L vGjpf;bfhLf;fhjjhy; nkw;go Mtz';fspy; fPH; vg;ghpfhuKk; thjpf;F fpl;Ltjpy;iy vd;W gpujpthjp TWtJ rhpah?
4. The plaintiff had examined himself as P.W1 and one Renganathan, the witness in the promissory note as P.W2 and Exs.A1 to A7 were marked on the side of the plaintiff. The defendant had examined himself as D.W1 and marked Exs.B1 to B3. The Trial Court, after considering the evidence, decreed the suit as prayed for. Lower Appellate Court:
5. Challenging the same, the defendant had filed an appeal in A.S.No.3 of 2013 on the file of the III Additional District and Sessions Judge, Cuddalore at Vridhachalam. The lower Appellate Court had framed the following points for consideration.
“1. Whether the defendant executed the said promissory note in favour of the said Latha and in turn the said Latha made over to the plaintiff as alleged?
5/15 https://www.mhc.tn.gov.in/judis S.A.No.836 of 2017
2. Whether the suit pro-notes are forged one?
3. Whether the appellant is entitled to the relief as prayed for?
4. To what other relief the appellant is entitled to?” The Lower Appellate Court confirmed the judgment and decree of the trial Court and dismissed the appeal. Challenging the same, the defendant is before this Court.
Substantial Questions of law:
6. This second appeal has admitted by this Court on 12.12.2017 on the following questions of law:
“a) Whether in law the Courts below are right in failing to see that the suit pro-notes were forged and that once the appellant had disputed execution, the respondent ought to have gotten examined by an expert and that the Court should not assume the role of a 6/15 https://www.mhc.tn.gov.in/judis S.A.No.836 of 2017 handwriting expert?
b) Whether in law the Courts below were not wrong in concluding that the non examination of Latha was not fatal to the respondent's case when only she could have spoken about the advancing of the loan, the execution of the pro-notes and the assignment in favour of the respondent?”
7. Submission of the learned counsel for the appellant/defendant:
Ms.Meenal, learned counsel appearing on behalf of the appellant / defendant would submit that once the defendant had denied the signatures in the suit promissory note, the plaintiff was bound to prove the same. This exercise has not been done by the plaintiff. It is only when this onus is discharged by the plaintiff, the burden shifts to the defendant. She would submit that the witness to Exs.A1 and A2- promissory notes who is also the witness to Exs.A3 and A4, made over documents has been examined as P.W2. In his cross examination, the witness has stated as follows:-
“ve;bje;j Mtz';fspy; ehd; rhl;rp ifbaGj;J nghl;Ls;nsd; vd;W vdf;Fj; bjhpahJ/ ve;j 7/15 https://www.mhc.tn.gov.in/judis S.A.No.836 of 2017 Mtzj;jpw;fhf ehd; ePjpkd;wj;jpw;F rhl;rp brhy;y te;njd; vd;w tpguk; vdf;Fj; bjhpahJ/ FHe;ijntYk;. yjht[k; vd;dplk; ifbaGj;J nfl;lhh;fs;. ehd; ifbaGj;J nghl;nld;/ vdf;F ntW vJt[k; bjhpahJ/ FHe;ijntY vdf;F cwtpdh;
vd;gjhYk;. vdJ rpj;jg;ghtpd;; ngj;jpf;F kUkfd; vd;gjhYk;. jtwhd Mtzj;jpy; ehd; ifbaGj;J nghl;L cs;nsd; vd;why; rhpay;y”.
Therefore, from this admission, it is clear that the promissory note is a fabricated one. She would further submit that the defendant had filed Exs.B1 to B3 to show that the said Latha did not have the wherewithal to extend hand loan of a sum of Rs.1,08,000/-, since she had instituted the proceedings claiming maintenance from her husband, Kuzhandaivel in H.M.O.P.No.151 of 2008 on the file of the Principal Subordinate Court, Virudhachalam. She would draw the attention to Ex.B3, which is the 8/15 https://www.mhc.tn.gov.in/judis S.A.No.836 of 2017 affidavit filed in support of the said petition, wherein she had stated as follows:-
“nkYk; vjph;kDjhuh; Mz;ik Fwpj;J ehd;
jtwhf ngrpajhf vjph;kDjhuh; kDtpy; Twpa[s;s mk;r';fs;aht[k; jtwhFk;/ vjph;kDjhuUk; mry;
kDjhf;fy; bra;j fhyk; Kjy; vd;ida[k;. vd; ,U FHe;ijfisa[k; vt;tpj rtul;rida[k; bra;ahky;
thHe;JtUfpwhh;/ vjph;kDjhuh; bra;iffs; fhuzkhf ehDk; vd; FHe;ijfSk; czt[ kw;Wk; ,ju mog;gil njitfSk; fpilf;fhy; fc&;l$Ptdk; bra;JtUfpd;nwhk;/” She would therefore submit that once the said Latha has clearly stated that she did not have the wherewithal, it clearly proves that she could not have extended the huge sum of Rs.1,08,000/- as loan.
8. Submission of the learned counsel for the respondent /plaintiff: 9/15 https://www.mhc.tn.gov.in/judis S.A.No.836 of 2017 Per contra, Mr. D.Shivakumaran, learned counsel appearing on behalf of the plaintiff would submit that the Trial Court as well as the lower Appellate Court had compared the signatures of the defendant in Exs.A1 to A4 with the admitted signatures in Ex.B1. A mere perusal of the same would indicate that it is the very same person, who has affixed the signatures in these documents. The defendant had however not taken any steps whatsoever to have the signature verified by an expert. Therefore, an adverse inference has to be drawn against him. He would further submit that the said Latha had the wherewithal to extend the huge loan of Rs.1,08,000/-. It is the contention of the learned counsel that Exs.A3 and A4 are of the year 2010 whereas the said Latha has extended the loan to the defendant in the year 2007. Further, the defendant had not produced the main petition filed by the said Kuzhandaivel before the Subordinate Judge, seeking divorce since allegation on which the petition for divorce had been filed is that the Latha has squandered the money that has been sent by the Kuzhandaivel, who was working abroad by extending credit facilities to different persons. This would only go to prove that the said Latha had given 10/15 https://www.mhc.tn.gov.in/judis S.A.No.836 of 2017 a loan to the defendant. Once the plaintiff has proved the signature then the onus rests on the defendant to disprove the passing of the consideration. The defendant and the family of Latha are well known to each other, since the defendant's son had borrowed money from the said Kuzhanthaivel in the year 2004 and admittedly, the same has not been repaid. The plaintiff has also signed the document as a witness. Therefore, he would submit that since the plaintiff has proved the execution of the promissory note and as the defendant has not able to establish the fact that the consideration has not passed, the judgment and decree of the Courts below has to be sustained and the second appeal has to be dismissed.
9. Discussions:
The primary defence of the defendant is that he had not executed the promissory notes in favour of the said Latha. To disprove the same, the defendant has not taken any steps to have the signatures verified by a handwriting expert. The Trial Court had compared the admitted signature in Ex.B1 with the disputed signatures in Exs.A1 to A4 and held that a mere perusal of the same would show that that signatures have been affixed by 11/15 https://www.mhc.tn.gov.in/judis S.A.No.836 of 2017 the very same person. I do not find any reason to disagree with this finding. Once the signatures have been proved to be that of the defendant, it is for the defendant to disprove the same, which the defendant had failed to do so. Section 73 of the Indian Evidence Act empowers the Court to compare the signature of a person, which is in dispute with his admitted signature. The Courts below have exercised this power available under the Act. It is not in every case that the signature has to be examined by an expert, it can be seen that when admitted documents of the same person is produced, it is open to the Court to compare it with the disputed signature, the parties need not be compelled to have the signature examined by the expert. It is the defendant to come forward with the categoric case that the signatures are forged. Therefore, he should have taken steps to have the same examined by an expert, particularly, when the signature had been admitted by P.W2, the witness to all the documents, namely, Exs.A1 to A4. Therefore, the substantial question of law No.1 is answered against the defendant. The plaintiff has examined the witness to the documents Exs.A1 to A4 as P.W2 and the witness has deposed to the effect that he had signed the document. 12/15 https://www.mhc.tn.gov.in/judis S.A.No.836 of 2017 In his cross examination, he had only stated that he was not aware about the contents or the nature of the document. However, he has admitted both the signature of the defendant as well as his signature as a witness. Once the plaintiff has been able to prove the fact that the signatures contained in Exs.A1 to A4 and the signatures in Ex.B1 are that of the same person and also by examining the attesting witness, the failure to examine the said Latha is not fatal to the case of the plaintiff. Another reason to accept the case of the plaintiff that Latha had extended the loan to the defendant, since it is the defendant's case that Latha's husband Kuzhanthaivel had instituted proceedings for divorce and one of the reasons for seeking the divorce is the fact that she had squandered away the money sent by him by extending hand loans to persons which have turned into bad debts. It was well open to the defendant to summon the said Latha atleast to establish the fact that the promissory notes were not made over to the plaintiff after receiving consideration. Therefore, the substantial question of law No.2 is also answered against the defendant. In the result, the second appeal fails and consequently, the second appeal is dismissed. There shall be no order as to 13/15 https://www.mhc.tn.gov.in/judis S.A.No.836 of 2017 costs. Consequently, connected miscellaneous petition is closed.
22.09.2022 Index : Yes/No Speaking order/non-speaking order srn To
1. The III Additional District and Sessions Judge, Cuddalore, Vridhachalam
2. The Additional Sub Judge, Vridhachalam.
3. The Section Officer, V.R.Section, High Court, Madras. 14/15 https://www.mhc.tn.gov.in/judis S.A.No.836 of 2017 P.T.ASHA, J., srn S.A.No.836 of 2017 and C.M.P.No.20871 of 2017 22.09.2022 15/15 https://www.mhc.tn.gov.in/judis