Madras High Court
V.Balasubramaniam vs Vijayaraj on 28 April, 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 28.04.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
SA(MD)No.849 of 2013
and
MP(MD)No.1 of 2013
V.Balasubramaniam ... Appellant/Appellant/Defendant
Vs.
Vijayaraj ...Respondent/Respondent/Plaintiff
Prayer: Second Appeal is filed under Section 100 of Civil Procedure
Code, against the judgment and decree dated 29.07.2013 in A.S No.54
of 2011 on the file of the Principal District Judge, Dindigul confirming
the judgment and decree dated 29.04.2008 in O.S No.307 of 2004 on
the file of the Principal Sub Judge, Dindigul.
For Appellant : Mr.J.Anandakumar
For Respondent : Mr.H.Lakshmi Shankar
JUDGEMENT
The defendant in O.S No.307 of 2004 on the file of the Principal
Sub Court, Dindigul is the appellant in this second appeal. The
respondent Vijayaraj is the plaintiff in the suit. The case of the plaintiff
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is that the defendant approached the plaintiff on 30.11.2011 and
borrowed a sum of Rs.1.00 lakh after executing a pro-note. The
defendant had agreed to pay the amount with interest. Even though
demands were made specifically, the defendant evaded in making the
payment. Hence, the plaintiff had instituted the suit in question. The
defendant filed his written statement denying the plaint averments.
The stand of the defendant is that on 30.11.2001, the defendant did not
borrow any amount from the plaintiff as alleged. The stand of the
defendant was that on 31.05.2004, a sale agreement was entered into
with the plaintiff. In the said agreement, the defendant as well as his
son Velmurugan had signed. The sale agreement could not culminate
in a pucca sale deed. This was on account of the attachment effected
by a third party. This gave rise to a strained relationship between the
parties. Even though the defendant had cancelled the said agreement
with the plaintiff, the plaintiff in order wreak vengeance on the
defendant, he has created the pro note and filed the suit on that basis.
Before the learned Trial Judge, the plaintiff examined himself as PW.1.
He examined one Mohan attesting witness as PW.2. Ex.A1 pro note
was marked. The defendant examined himself as DW.1 and marked
Exs.B1 and B2. The learned Trial Judge by the judgment and decree
dated 29.04.2008, came to the conclusion that the execution of the said
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pro note has been established and decreed the suit. Aggrieved by the
same, the defendant filed A.S No.54 of 2011 before the Principal
District Court, Dindigul. In the appeal, the defendant filed I.A No.138
of 2012 under Order 41 Rule 27 of CPC for reception of additional
evidence. The first appellate court by judgment and decree dated
29.07.2011 dismissed the appeal. Questioning the same, this Second
Appeal came to be filed. Though this Second Appeal is of the year
2013, only notice was ordered on 11.12.2013 and it has not been
admitted, no substantial question of law has been framed.
2.Heard the learned counsel on either side.
3.The learned counsel appearing for the appellant reiterated all
the contentions set out in the memorandum of grounds. He took me
through the pleadings as well as the evidence. He wants this Court to
set aside the impugned judgments of the court below and to allow the
second appeal. His core argument is that when the genuineness of
the pro note had been seriously challenged, the courts below ought to
have shifted the burden of proof on the plaintiff. The plaintiff did not
take any steps to obtain any handwriting expert opinion. The trial
court chose to undertake the task of comparing the disputed signature
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in the said pro note with the signature of the appellant in the
deposition.
4.The learned counsel drew my attention to the decision of the
Hon'ble Supreme Court in the decision reported in (2008) 3 SCC 233
(Mohd. Hussain (Dead) by LRs and Ors. vs. Occhavlal and Ors.) for
the proposition that when the court undertakes the task of comparison
of disputed signature with the admitted signature, it must also spell out
the reasons for its eventual inference. In the case on hand, the trial
court had made a bald statement that the signature found in Ex.A1 is
that of the defendant. Such conclusions have been characterised as
callous by the Apex court. The learned counsel for the appellant would
also state that the defendant is in the habit of signing only as
“Balasubramaniam”. In the suit pro note, the defendant's signature
appears as “Balasubramani”. Therefore, he submitted that this Court
ought to allow the second appeal and set aside the impugned
judgments of the court below.
5.Per contra, the learned counsel appearing for the
respondent/plaintiff submitted that the judgments of the courts below
do not warrant any interference. He pressed for dismissal of the second
appeal.
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6.I carefully considered the rival contentions and went through
the evidence on record. I must state that the defence of the appellant is
that he and his son Velmurugan had entered into an agreement with
Vijayaraj/plaintiff on 31.05.2004 and the dispute arose as a direct fall
out of the sale agreement. The agreement was marked by the appellant
Velmurugan in the suit filed by one Nagarajan in O.S No.138 of 2012
on the file of the Principal Sub Court, Dindigul. Since the second
appeal arising out of the said suit was also dismissed by me today, I
was able to lay my hands on the agreement to which the appellant is
the party. In the interest of justice, I had a look at the said sale
agreement. The said sale agreement had not marked in the present
suit proceedings. In the said agreement which is an admitted
document, the name of the appellant is mentioned as “Balasubramani”.
He signed only as “Balasubramani”. Therefore, the claim of the
appellant that he would only sign as “Balasubramaniam” appears to be
an afterthought. During the course of cross examination, the appellant
went to the extent of denying his signature in the Vakalat as well as in
the written statement.
7.The learned counsel for the respondent drew my attention to the
decision of the Supreme Court reported in AIR 1999 SC 2544 (K.S.
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Satyanarayana vs. V.R. Narayana Rao). The Supreme Court has set out
the guidelines as to how to deal with the litigants in such cases. In the
case on hand, the plaintiff has examined himself as a witness. He had
also examined an attesting witness. The trial court had undertaken the
task of comparison. Section 73 of the Indian Evidence Act confers
power on the court to do so. The learned counsel for the respondent
drew my attention to the decisions of the Madras High Court reported
in (1960) 1 MLJ 142 (Vazir Begum Ammal and Ors. Vs. Tholaram). In
Thirumuruga Ramalingam vs. Mohamed Hanifa (2015 SCC OnLine Mad
440), a learned Judge of this Court held as follows :
“9.These provisions have been subject matter of
several decisions of this Court. No doubt, a Court does
not exceed its power under section 73, if it compares the
disputed signatures with the admitted signature of the
party so as to reach its own conclusions. Though there
is no legal bar to the Judge using his own eyes, to
compare the disputed signatures without the aid of an
handwriting expert, the Judge should hesitate to render
his findings with regard to the identity of the
handwriting. The reason is that such opinion forms the
sheet anchor against a person whose signature is
compared. Such venture by the first appellate Court to
compare the signatures by itself does not mean that the
Court had assumed the role of an expert. Section 73 of
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Evidence Act expressly enables the Court to compare
the disputed signature. Such comparison of signature by
an expert is not done by the parties, may be for the
reason of ignorance or affordability. Then it becomes the
duty of the Court to compare the signature and come to
a conclusion. Thus the Court cannot avoid its
responsibility in the absence of an expert opinion. If the
opinion of an expert is available, it would aid the Court
in proper adjudication of the matter. When the same is
not available, the Court will have to seek guidance from
its own experience and knowledge.”
8.More than anything else, if according to the appellant, the trial
court's inference was erroneous, the appellant ought to have set out in
his memorandum of grounds of appeal as to how the disputed
signature is different from the admitted signature. Having not done so,
the appellant is not justified in his criticism of the approach adopted by
the trial Court. In any event, the impugned judgments do not rest on
mere comparison of the disputed signature with the admitted signature
alone. There is sufficient evidence to sustain the conclusion of the
courts below that Ex.A1 was only executed by the defendant. I do not
find any merit in this second appeal.
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9.Since no substantial question of law arises for determination,
this second appeal stands dismissed. No costs. Consequently,
connected miscellaneous petition is closed.
28.04.2021
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 District Judge, Dindigul.
2.The Principal Sub Judge, Dindigul.
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.849 of 2013
28.04.2021
https://www.mhc.tn.gov.in/judis/
