Madras High Court
Velmurugan vs M.Kanagasabapathi on 22 April, 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 22.04.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
SA(MD)No.668 of 2012
and
MP(MD)No.2 of 2012
1.Velmurugan
2.Ramiah ... Appellants/Appellants/Defendants
Vs.
M.Kanagasabapathi ...Respondent/Respondent/Plaintiff
Prayer: Second Appeal is filed under Section 100 of Civil Procedure
Code, against the judgment and decree passed in A.S No.31 of 2010 on
the file of the Principal Sub Court, Tenkasi dated 25.08.2010
confirming the judgment and decree passed in O.S No.495 of 2006 on
the file of the Additional District Munsif Court, Tenkasi dated
22.02.2010.
For Appellants : Mr.D.Venkatesh
For Respondent : Mr.R.T.Arivukumar
for Mr.R.Manimaran
https://www.mhc.tn.gov.in/judis/
JUDGEMENT
The defendants in O.S No.495 of 2006 on the file of the Additional
District Munsif Court, Tenkasi are the appellants in this Second
Appeal. The respondent herein filed the said suit on the strength of
Ex.A1 promissory note dated 22.12.2001. The case of the plaintiff is
that the first defendant (father) and the second defendant (son)
approached him on 22.12.2001 and took a loan of Rs.50,000/- after
executing Ex.A1 promissory note. The promissory note was filled up in
the own handwriting of the first defendant. The defendants had agreed
to pay interest at the rate of 24% per annum. The plaintiff's specific
case is that on 22.09.2003, interest up to the said date was paid and
an endorsement to that effect was also made on the reverse side of the
pro-note. Thereafter, the defendant did not make any payment.
Therefore, the plaintiff issued Ex.A2 notice dated 30.06.2006. The
defendants vide reply Ex.A3 dated 05.07.2006 denied the genuineness
of the endorsement and the acknowledgement said to have been made
on 22.9.2003. Since the defendants did not comply with the demand
set out in the notice, the plaintiff filed the said suit on 25.08.2006. The
plaintiff himself examined as PW.1 and marked Exs.A1 to A11. On the
side of the defendants, the first defendant examined himself a DW.1.
No documentary evidence was adduced by the defendants. The
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learned Trial Munsif vide judgment and decree dated 22.02.2010
decreed the suit and directed the defendants to pay a sum of Rs.
67,500/- with interest computed at the rate of 12% from the date of
suit till the date of payment and at the rate of 6% from the date of
decree till the date of realization. Questioning the same, the
defendants filed A.S No.31 of 2010 before the Principal Subordinate
Judge, Tenkasi. Vide judgment and decree dated 25.08.2010, the first
appellate court dismissed the appeal and confirmed the judgment and
decree passed by the trial court. Questioning the same, this Second
Appeal came to be filed.
2.Though the second appeal was filed way back in the year 2012,
till date, it has not been admitted and no substantial question of law
has been framed. The learned counsel appearing for the appellants
reiterated all the contentions set out in the memorandum of grounds
and called upon this Court to admit the second appeal by framing a
substantial question of law. He strongly denied the genuineness of
Ex.A11 endorsement made on the reverse side of Ex.A1 pro-note.
According to him, it is not a genuine endorsement. If Ex.A10 is
eschewed, the suit laid on the strength of Ex.A1, would patently be hit
by limitation. He also would state that immediately after receiving
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Ex.A2 notice, the defendants sent their reply on 05.07.2006 itself.
Thus, at the earliest point of time, the defendants have questioned the
genuineness of Ex.A11 acknowledgement. He also would state that the
plaintiff has not bothered to send Ex.A11 for the opinion of the
handwriting expert. Though as per Section 73 of the Indian Evidence
Act, the court does have the power and authority to undertake the
exercise of comparison, it has been held in a catena of decisions that
the court should be extremely slow and reluctant to undertake such an
exercise. Matters that are better dealt with by experts ought not to be
taken over by the courts. He also pointed out that the plaintiff is in
the business of money lending and having transaction with them over
several years. He called for reversal of the judgments passed by the
court below.
3.Per contra, the learned counsel appearing for the
plaintiff/respondent herein would submit that the impugned judgments
do not call for any interference. He pressed for dismissal of the second
appeal.
4.I carefully considered the rival contentions and went through
the evidence on record. The execution of Ex.A1 is not in dispute. The
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only bone of contention revolves around Ex.A11. The case of the
plaintiff is that on 22.09.2003, Ex.A11 endorsement was made on the
reverse side of the pro-note and that the limitation would start running
therefrom. It is true that the plaintiff did not take any step to have
the matter referred for the opinion of the handwriting expert. But the
question is whether the courts below are denuded of their power to
undertake the task of comparison. A learned Judge of this Court in M.
Munusamy and Ors. vs. Saraswathy and Ors in CRP PD No. 1023 of
2015 dated 23.01.2017 held as follows :
“Order 26 Rule 10A CPC provides for
appointment of Commissioner for scientific investigation.
When a scientific investigation is required to be conducted
in a suit for deciding the dispute between the parties and if
the Court decides that the same cannot be done before the
Court, it is open to the Court to issue a Commission to such
expert to investigate and furnish a report. In order to
conduct such specific investigation, the Court has also got
power to appoint a Commissioner under Rule 10 A of the
Civil Procedure Code. As the scientific investigation
contemplated in Order 26 Rule 10A CPC includes report of
the Forensic Expert, the Court can appoint a
Commissioner/Advocate Commissioner to send the
documents to be compared with the other admitted
documents and get a report from the Forensic Expert. The
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Advocate Commissioner, who is an Officer of the Court,
has to be given the responsibility of taking the document to
an expert and collecting them back from the expert and
submit a report to the Court. An Advocate Commissioner
appointed by the Court is an Officer of the Court and giving
the same to the Commissioner for the said purpose is
deemed to be in the custody of the Court only. Though the
petitioners/plaintiffs have asked for only a comparison of
the document under Section 45 of the Evidence Act and not
for appointment of a Commissioner under Order 26 Rule
10A CPC, the Court has got the power to exercise the same
and appoint a Commissioner in this regard on its own. An
opinion from the Forensic Expert involves experiments with
sophisticated equipments, which cannot be brought to the
Court for the said purpose. However, the said reason
cannot preclude a party from obtaining an opinion from the
expert. With the advancement of science and technology,
the Courts can have the assistance and aid of an expert in
deciding a particular issue. The experts also cannot be
expected to visit all the Courts wherever such requirements
is there. It is also to be noted that there are not many
Government experts with the facilities in the State. When
the services of the Forensic Experts are originally required
in criminal matters, the devotion of their time for civil
matters is minimum. In such circumstances, it is open to
the Court to appoint a Commissioner to obtain a report from
Handwriting Expert after scientific investigation.”
https://www.mhc.tn.gov.in/judis/
5.Applying the aforesaid ratio, I come to the conclusion that the
courts below did not commit any error in undertaking the task of
comparison. The courts below have compared the disputed signature
in the endorsement Ex.A11 with the admitted signature of the first
defendant Velmurugan. The first appellate court had gone to the
extent of giving the characteristics of the disputed and admitted
signatures and given reasons as to why, he had come to the conclusion
that Ex.A11 was very much executed by the first appellant
Velmurugan. Once the courts below came to the conclusion that
Ex.A11 is true and acceptable, then, automatically the onus will shift to
the defendants. In the case on hand, the defendants have not
discharged the said onus. During the course of arguments, the counsel
for the appellants would claim that the appellants had actually
discharged the liability under Ex.A1 pro-note. If that be so, Ex.A1
pro-note would have been cancelled. If it had not been cancelled, a
communication would have been sent by the defendants to the plaintiff
seeking return of the original pro-note. In this case, no such letter was
sent by the defendants. Therefore, I hold that the courts below have
correctly approached the issue. No substantial question of law arises
for consideration in this second appeal. I do not find any merit in this
second appeal.
https://www.mhc.tn.gov.in/judis/
6.The second appeal stands dismissed. No costs. Connected
miscellaneous petition is also dismissed.
22.04.2021
Index : Yes / No
Internet : Yes/ No
skm
Note : In view of the present lock down owing to COVID-19
pandemic, a web copy of the order may be utilized for official
purposes, but, ensuring that the copy of the order that is
presented is the correct copy, shall be the responsibility of the
advocate/litigant concerned.
To
1.The Principal Sub Judge, Tenkasi.
2.The Additional District Munsif, Tenkasi
Copy to :
The Record Keeper, V.R.Section,
Madurai Bench of the Madras High Court, Madurai.
https://www.mhc.tn.gov.in/judis/
G.R.SWAMINATHAN, J.
skm
SA(MD)No.668 of 2012
and
MP(MD)No.2 of 2012
22.04.2021
https://www.mhc.tn.gov.in/judis/
